DOUGLAS WILLIAM TREWIN, Applicant, – v. –, 2017 NBQB 233

IN THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF MONCTON Trewin v. Trewin 2017 NBQB 233 FDM 774-04 2017/12/14 BETWEEN: DOUGLAS WILLIAM TREWIN, Applicant, – and – HOLLY LEE TREWIN, Respondent. DECISION BEFORE: Madam Justice Brigitte M. Robichaud AT: Moncton, New Brunswick

DATE OF HEARING: September 28, 29, October 2, and 3, 2017 DATE OF DECISION: D ecember 14, 2017 APPEARANCES: Christine Drapeau, on behalf of the Applicant Kenneth W. Martin, on behalf of the Respondent Robichaud, J. [ 1 ] The Applicant Douglas William Trewin filed a Notice of Motion to vary his spousal support obligations on May 22, 2014. The claims were amended on August 18 th , 2017 and are as follows: 1. An order for a variation of the amount of monthly spousal support due to a material change of circumstances, i.e., a significant increase in the Respondent’s, Holly Lee Trewin’s, household income’s (sic) pursuant to

section 17 of the Divorce Act retroactive to approximately January 1, 2007, the date the Respondent moved to British Columbia and started living with her current partner. Any overpayment to be reimbursed to the Applicant. 2. In the alternative, an order for a variation of the amount of monthly spousal support due to a material change of circumstances, i.e., a significant decrease in the Applicant’s income pursuant to

section 17 of the Divorce Act retroactive to July 1, 2013, the month following the Applicant’s change of income. [ 2 ] The Respondent Holly Lee Trewin opposes the motion on the grounds of her continued entitlement, her needs and the strength of her compensatory claim. BACKGROUND [ 3 ] The parties married in 1974 and separated in 2002 after 28 years of marriage. They are the parents of one adult son, Jeffrey Trewin, born April 7, 1976, 41 years of age. When Jeffrey was just a year old, he suffered a cerebral stroke and underwent a left temporal lobectomy.

At age 11, another surgical procedure was undertaken at the Montreal Neurological Institute. Jeffrey currently lives on his own in an apartment in the Moncton area. He has had sporadic employment since early adulthood. He is on income assistance and it is not clear if he receives other subsidies. Jeffrey also has access to services through Moncton Community Residences Inc. (MCRI), a not- for-profit organization working with young adults. It provides him with transportation for groceries, shopping and appointments as well as educational support for budgeting, life skills and healthy lifestyles. [ 4 ] Mr.

Trewin was born on June 18, 1953. He is currently 64 years old. Ms Trewin was born on December 23, 1953. She will be 64 later this month. When they met in 1972, Mr. Trewin was a recruit with the RCMP. Two years later they married. While working with the RCMP, Mr. Trewin was often transferred. He left that employment in May of 1997 after 25 years of service. He had attained the rank of sergeant. [ 5 ] He then obtained full time employment with the Province of New Brunswick. He was employed as such on September 1, 2002 when the parties separated.

They then continued to reside separate and apart while under the same roof and remained an economic unit until October 1, 2004 when Mr. Trewin left the household. [ 6 ] In October of 2005, Mr. Trewin was diagnosed with Parkinson’s disease and was placed on long term medical leave. He commenced to receive tax-free monthly long-term disability benefits (LTD) through Medavie Blue Cross (Medavie). When he later qualified for monthly disability benefits through the Canada Pension Plan, it contained a retroactive component. It also triggered a reduction in the Medavie LTD benefits. Mr.

Trewin also commenced to receive a modest tax-free pension from Veterans Affairs Canada (VAC) resulting from a post-traumatic stress disorder (PTSD) diagnosis.

[ 7 ] Ms. Trewin was working part-time as a Registered Nursing Assistant (RNA) at the Sussex Hospital when the parties married. Because of her husband’s frequent transfers with the RCMP (7 physical transfers in total), she was only able to hold on to either part-time work or short-term full-time work. After she ceased to work full time as a RNA, she transitioned from shift work to more regular hours as either a pharmacy assistant or as a rehabilitation facility attendant. [ 8 ] Other demands on Ms. Trewin’s time arose because of their son Jeffrey’s medical issues commencing at age one and subsequently.

There was a period of hospitalization at the IWK Hospital in Halifax following a grand mal seizure and a prolonged stay at the Montreal Neurological Institute. There were many medical appointments to attend with Jeffrey and emergency calls to respond to because of his seizures. Nonetheless she remained employed at least part-time, sometimes for shorter terms, for most of the parties’ cohabitation. [ 9 ] Eventually, Jeffrey graduated from high school. His attempts at maintaining remunerative employment after high school have not been successful. Mr. Trewin believes he could hold a job if he applied himself. Ms.

Trewin takes the position that he cannot work and needs her financial assistance. While a lot of the hearing time was spent on Jeffrey, his status as either a child of the marriage or a dependent child, is not before the Court. For the purposes of this motion, Ms. Trewin included in her personal expense budget, the monthly contributions she makes on behalf of Jeffrey, mostly through MCRI. Her tax returns show that she claims Jeffrey as a disabled dependent and she receives a generous disability tax credit.

Also, all the monthly payments she sends to MCRI generate charitable donation receipts that are claimed in her returns. [ 10 ] In 2006, Justice Richard Bell (as he then was) presided over a two-day hearing on claims under the Marital Property Act and the Divorce Act . He filed a written decision on October 2, 2006 ( see Trewin v. Trewin 2006 NBQB 341 ). The Order for Corollary Relief is dated May 1, 2007 and effective October 2 nd of the previous year. It orders Mr. Trewin to pay periodic monthly spousal support to Ms. Trewin in the amount of $1,650 retroactive to October 1, 2004.

The arrears covering 25 months of support obligations were in the net amount of $8,950 as Mr. Trewin had made voluntary pre-trial monthly payments of $1,700 over the course of the previous 19 months.

All the debits and credits on spousal support were also set-off against the equalization payments ordered under the Marital Property Act . [ 11 ] While the Order for Corollary Relief does not specify the income of the parties on the support calculations, Justice Bell set out his approach on the quantum calculation at paragraphs 31-33 of his reasons where, by all indication, he ordered support at the high end of the quantum range under the Spousal Support Advisory Guideline (SSAG) : 31 Applying the Spousal Support Advisory Guidelines, it is my view the years of marriage in this case should be multiplied by 2%.

It is therefore reasonable to expect that Mrs. Trewin would receive 50% of the balance available. For purposes of the calculation, I conclude Mrs. Trewin has a residual earning capacity of $500.00 per month or, approximately $6,000.00 per year. 32 The funds available to pay spousal support are the Blue Cross benefit, which is $1827.97 per month tax free, the Veterans' pension, which is $398.64 per month tax free and the C.P.P. benefit, which is $1033.47 taxable. 33 The tax free benefits will be grossed up by 25%. The gross up calculation results in an increase of $556.65 per month.

The total then available from the Blue Cross benefits and the Veterans' pension is $2783.26, being the total of 1827.97 plus $398.64 plus $556.65 (the latter portion being the gross up). In addition to the $2783.26 available from those two sources, one must add the Canada Pension disability benefit of $1,033.47 for a total income available for spousal support of $3,816.73. As I have already indicated, one must deduct from that amount the residual earning capacity which I have assessed at $500.00 per month.

The total amount then available for distribution for spousal support purposes, on a monthly basis, is $3,316.73. Applying a 50% division, the guideline amount is $1658.37. I therefore order that spousal support will be payable, effective the 1st day of November and for every month thereafter, until further order of the Court, in the amount of $1650.00. [ 12 ] As indicated, Mr. Trewin’s residual income was calculated net of the RCMP “in pay” pension that he was receiving at the time.

This was so because under the Marital Property Act ruling, Justice Bell had ordered an equal division of the entire RCMP pension, including two years pre-marital and pre-cohabitation. He also ordered a retroactive lump sum pension payment to be paid equal to one-half of the monthly stream of the “in pay” benefits for the period of 25 months from October 1, 2004 to October 1, 2006. Further, Justice Bell ordered an equal division of Mr.

Trewin’s pension with the Province of New Brunswick and used as the period subject to division, the date he commenced to contribute to this pension until October 1, 2004, again two years post-separation. This latter one was not yet “in pay” at trial. The relevant paragraphs of Justice Bell’s reasons on the issue of the pension division are 24-26 inclusively:

b. Pension Assets 24 With respect to pension assets, there shall be a 50% sharing of the whole of the R.C.M.P. pension. I make this conclusion based upon the unique circumstances of this case including the length of the marriage, the expectations of the parties throughout the course of Mr. Trewin's service in the R.C.M.P, the challenges faced by Mrs. Trewin in obtaining a pension benefit of any kind and the fact the marriage was planned early in Mr. Trewin's R.C.M.P. career.

It is to be noted the couple married immediately after the two-year waiting period which was then imposed upon recruits in the R.C.M.P. 25 Given the R.C.M.P. pension was being paid on a monthly basis at the time of separation at $2343.80, Mrs. Trewin is entitled to $1171.90 per month from October 1, 2004 to the present time, namely $29,297.50 (being $1171.90 multiplied by 25 months). 26 In relation to the Province of New Brunswick pension plan, I conclude that Mrs.

Trewin is entitled to 50% of the commuted value, from the commencement date of contributions to that pension to October 1, 2004. [ 13 ] Justice Bell also ordered that the period for the division of the CPP pension credits included the same two years post- separation. Finally the non-taxable marital property was divided equally as was the marital debt with each party netting the sum of $7,219. [ 14 ] In respect of Ms. Trewin’s financial circumstances, she testified that following the decision of Justice Bell, she received her equal share of both the RCMP and Province of New Brunswick pensions.

According to her testimony, that division resulted in the payment of a lump sum of $325,000 that was rolled over into her RRSP. From the explanation she gave to the Court, it appears that a portion of the investment is locked in while the other is not. The record before the Court provides evidence of a higher amount rolled into her RRSP. At page 231 of Book 2, a letter from the administrator of the RCMP pension plan confirms a transfer of $309,166 to Ms. Trewin’s RRSP in February 2007.

And later in April 2017, the administration arm of the New Brunswick pension confirms a transfer of $48,899 (page 234), for a total transfer of $358,065 into her RRSP account. The difference between the two figures is $33,065. It likely relates to the fact that after the trial judge’s decision was released the parties arrived at an agreement to the effect that the ruling on the equal division of the RCMP pension should not have included the two years prior to the marriage. In consideration of this agreement, Mr. Trewin had abandoned an appeal of the issue. [ 15 ] Ms.

Trewin testified on this motion that currently the balance remaining from the divided pensions is more or less $118,000. She then presented documents showing that the balance was closer to $128,000. [ 16 ] Ms. Trewin currently lives in Surrey, British Columbia, in a common law relationship with Jeffrey Banks. She testified she first met him in 2003. She was living in Moncton and he in Surrey. They exchanged correspondence and visited each other. In May of 2006, she moved to Surrey and they commenced to cohabit. In June of 2009, the relationship broke off and she moved back to Moncton.

She testified that in October of 2010, she returned to Surrey with a plan to collect her belongings from Mr. Banks’ home. Instead, they resolved their differences and resumed cohabitation. They have been in a stable relationship since. [ 17 ] Ms. Trewin explained how her original pension account was over time depleted with less than one-third of its original value left. She incurred expenses travelling from Surrey to Moncton likely twice per year and also paid for her son’s trips to visit her out West on average twice per year.

She also paid credit card debts accumulated for what she describes in part, as a much higher cost of living in British Columbia. She gave as examples, withdrawals of $2,500 in 2013, then $15,000 in 2014, and then again $40,000 in 2014 to pay credit card debts for a variety of expenses including airline tickets, car rentals, legal fees, and the cost of moving to Surrey. [ 18 ] Ms. Trewin also testified that she contributes at least $250 per month and upward to MCRI to manage funds for their son. She also pays his travel insurance, his cell phone and cable T.V. as well as clothing purchases.

She estimates on average, she spends approximately $500 per month. She wants these contributions considered part of her needs. [ 19 ] Ms. Trewin testified that she and her new partner keep separate bank accounts. She pays for some of their living expenses, such as electricity, gas, groceries, a portion of car insurance, and unspecified miscellaneous monthly fees. She also purchases gifts and household items. She testified that Mr. Banks is retired. There is scant evidence on his financial circumstances.

In respect of his income and the sources of same, there is but a single page (Lines 101 to 150) of certain tax returns that are before the Court and they do not provide a complete picture of his financial circumstances. His income is made up of a number of sources, including CPP, dividends, interest income, taxable capital gains, and RRSPs. The last three years, 2014 to 2016, provide the following data:

SOURCES 2014 2015 2016 CPP 9,585 11,466 11,584 DIVIDENDS 544 477 275 INTEREST 45 73 CAP GAINS 3,808 5,836 3,644 RRSP 12,500 4,036 SUPPLEMENT 2,221 490 LINE 150 28,704 21,796 16,006 [ 20 ] In earlier years, Mr. Banks’ interest income was much higher and at times exceeded $5,000. Ms. Trewin believes he has investments and RRSPs but she is unaware of their values. There is no explanation for how he arranges his income sources as this information was in my view, intentionally or strategically withheld. Otherwise why should Ms. Trewin produce single pages of each T1 General as opposed to the entire return.

I infer from this selective disclosure that Mr. Banks has discretion in the manner in which he favourably structures his annual income. [ 21 ] Mr. Banks owns a home in Surrey. It is mortgage-free. Ms. Trewin estimates its value at $600,000. He also owns a vacation property in Lake Samish in Washington State, USA. It is located in a mobile home park where there are two dozen other home owners. She estimates its value at $160,000 USD. [ 22 ] Ms. Trewin testified that when she moved to Surrey, she had fully intended to get back to work. In her words, this “never panned out”.

She gave no valid explanation for not working and clearly left the Court with the impression that she did not have to look for work. She admitted that she never sought out employment opportunities when she lived in Surrey from 2006 to 2009, in Moncton for a portion of 2009 and 2010, and again in Surrey from 2010 to the present. The changes in income [ 23 ] In 2013, Mr. Trewin was informed of retroactive changes to his monthly CPP disability benefits as a result of the credit split between the spouses (see Exhibit 3).

His monthly benefit was reduced from $1,158 to $974 commencing October 2012, a difference of $184. Commencing on January 1, 2013, the monthly entitlement was increased to $992, an increase related to indexation. [ 24 ] Also in July of 2013, when Mr. Trewin reached age 60, his Medavie tax-free LTD benefits ran their course. This coincided with his entitlement to a monthly pension related to his former employment with the Province of New Brunswick. Currently, the gross amount is $1,570 per month. [ 25 ] In respect of the VAC tax-free pension, Mr.

Trewin was receiving the sum of $399 per month when the divorce judgment was granted in 2006. Currently he receives $547 per month. [ 26 ] Another change to the income of Mr. Trewin will occur when he turns 65 on June 18, 2018. As of the following month, his entitlement to the CPP disability benefits, currently at $1,046 per month, will cease and he will commence to receive the CPP retirement benefits payable at a reduced amount. A letter from Service Canada dated June 10, 2016 is before the Court.

It estimates the monthly CPP retirement benefit at $745 per month commencing in August 2018, a difference of $301. [ 27 ] Another impact of reaching age 65 will be the reduction to Mr. Trewin’s provincial pension. While the current payment sits at $1,570 per month, it will then be adjusted downward to the projected amount of $1,164, a difference of $384 per month. [ 28 ] In

summary, currently the annual income of Mr. Trewin is $56,940 (after gross-up of 25% to the VAC benefit similar to Justice Bell’s order) and is comprised of the following: SOURCE MONTHLY ANNUALLY RCMP pension (gross amount) $1,445 per month $17,340 Province of New Brunswick pension (gross amount) $1,570 per month $18,840

Canada Pension Plan Disability (gross amount) $1,046 per month $12,552 D.V.A. Pension (tax-free) $547 (grossed up by 25% or $137 for a grossed-up approximate value of $684 per month) $8,208 (after gross-up) TOTAL MONTHLY INCOME $4,745 per month (after gross-up) $56,940 (after gross- up) [ 29 ] In accordance with the documents before the Court, and as set out above, the annual income of Mr.

Trewin after reaching age 65 in June 2018 is estimated at approximately $48,456 and comprised of the following: SOURCE MONTHLY ANNUAL RCMP pension (gross amount) $1,445 per month $17,340 Province of New Brunswick pension (gross amount) $1,164 per month $13,968 Canada Pension Plan regular (gross amount) $745 per month $8,940 DVA Pension (tax-free) estimate $547 (grossed up by 25% or $137 for a grossed-up approximate value of $684 per month) $8,208 (after gross-up) TOTAL MONTHLY INCOME $4,038 per month (with gross-up) $48,456 [ 30 ] Mr.

Trewin’s annual income will therefore fall by an amount of $8,500 ($8,484 rounded) when he reaches age 65. [ 31 ] As for Ms. Trewin’s income, the current information is obtained by reference to her 2016 T1 General. It is comprised of the Canada Pension Plan retirement benefits of $4,064 and RRSP income of $5,877 for a total of $9,941 per year. In addition she receives spousal support of $1,200 per month (varied by consent from $1,650 to $1,200 effective July 1, 2015) or $14,400 per year. Her total income at Line 150 inclusive of spousal support is therefore $24,341.

THE ISSUES [ 32 ] The following are the issues to be determined:

a) Is there a material change in circumstances warranting a variation of the initial spousal support order?

b) If a material change is found, what is the appropriate amount of spousal support? LAW AND ANALYSIS [ 33 ] Claims in respect of the variation of an order for corollary relief relating to spousal support are governed by

section 17 of the Divorce Act . The relevant portions read as follows: 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; …

(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 orthe last variation order made in respect of that order, and, in making the variation order, the court shall take that change intoconsideration. …

(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; … (

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.

a) Is there a material change in circumstances warranting a variation of the initial spousal support order? [34] In L.M.P. v. L.S. 2011 SCC 64, the Supreme Court of Canada described the criteria required to establish the change ofcircumstances contemplated by section 17(4.1) of the Act. At paragraphs 32 to 36: 32 That "change of circumstances", the majority of the Court concluded in Willick, had to be a "material" one, meaning a change that,"if known at the time, would likely have resulted in different terms" (p. 688).

G. (L.) confirmed that this threshold also applied to spousalsupport variations. 33 The focus of the analysis is on the prior order and the circumstances in which it was made. Willick clarifies that a court ought not toconsider the correctness of that order, nor is it to be [page792] departed from lightly (p. 687). The test is whether any given change"would likely have resulted in different terms" to the order. It is presumed that the judge who granted the initial order knew and appliedthe law, and that, accordingly, the prior support order met the objectives set out in s. 15.2(6).

In this way, the Willick approach tovariation applications requires appropriate deference to the terms of the prior order, whether or not that order incorporates anagreement. 34 The decisions in Willick and G. (L.) also make it clear that what amounts to a material change will depend on the actualcircumstances of the parties at the time of the order. 35 In general, a material change must have some degree of continuity, and not merely be a temporary set of circumstances (seeMarinangeli v. Marinangeli (2003), (ON CA), 66 O.R. (3d) 40, at para. 49).

Certain other factors can assist a courtin determining whether a particular change is material. The subsequent conduct of the parties, for example, may provide indications asto whether they considered a particular change to be material (see MacPherson J.A., dissenting in part, in P. (S.) v. P. (R.), 2011 ONCA336, 332 D.L.R. (4th) 385, at paras. 54 and 63). 36 The threshold variation question is the same whether or not a spousal support order incorporates an agreement: Has a material

change of circumstances occurred since the making of the order? (See Willick; G. (L.); Leskun v. Leskun, 2006 SCC 25 , [2006] 1 S.C.R. 920 .) [ 35 ] L.M.P. directs the approach on a variation claim. The motion judge must analyze the prior order as well as the circumstances under which it was made, and thereafter, the changes that are alleged to exist.

For this purpose it is then necessary to review the approach utilized by Justice Bell in his decision released on October 2, 2006. ─ The initial spousal support order [ 36 ] As indicated earlier, when Justice Bell made the spousal support order, he determined the income of Mr. Trewin would be calculated net of the divided RCMP and the Province of New Brunswick pensions as the capitalized values in each of these were by the same ruling, divided at source.

He concluded the available income consisted of the tax free monthly disability pension of $1,828 from Medavie, the tax free monthly VAC pension of $399 and the monthly taxable CPP disability benefits of $1,033. After applying a 25% gross up on the tax free sums, namely $557 in gross-up value, the annual income against which the spousal support was to be paid was set at $45,804 or $3,817 per month. Against this amount, Justice Bell deducted the sum of $500 per month that he imputed to Ms. Trewin to reflect her residual earning capacity.

The balance then of $3,317 was divided equally between the parties and rounded to the sum of $1,650 which was ordered to be paid as spousal support. By proceeding as he did, Justice Bell was effectively granting an award of spousal support that was located at the high end of the quantum ranges. ─ The changes in the condition, means, needs or other circumstances of either former spouse ─ Changes in respect of Mr. Trewin [ 37 ] By the sixth year following the judgement, namely as of October 2012, Mr. Trewin’s monthly CPP disability payment had, through annual increments, increased to $1,158. Because Ms.

Trewin had applied for a division of the CPP credits following the marital breakdown, Mr. Trewin was given notice of a $184 monthly reduction to his CPP disability pension down to $974 per month. [ 38 ] Also when he reached age 60 in June of 2013, his tax-free Medavie LTD income of $1,828 per month (grossed up at 25% to $2,285 per month) ceased. In the next month he commenced to receive a monthly pension from his former employer, the Province of New Brunswick where he had worked from late 1997 to October 2005. Currently, the gross amount from the NB pension is $1,570 per month.

This is a reduction of close to $715 per month in the cross-over from the grossed-up LTD to the taxable NB pension. It cannot be overlooked that a portion of that pension was also divided as an asset in Justice Bell’s ruling when he ordered an equal division of same to October 1, 2004, a total of approximately seven years including two years post separation. [ 39 ] Not all of Mr. Trewin’s means have taken a downward swing. For instance, his monthly VAC tax free pension that was originally at $399 (grossed-up to $499 at 25%) when the divorce judgment was granted in 2006 is now currently paid at the rate of $547.

Its equivalent on a 25% grossed-up basis amounts to $684 per month or a grossed-up increase of $185. ─ Changes in respect of Ms. Trewin [ 40 ] Changes occurred as well in respect of Ms. Trewin. She received a lump sum transfer to her RRSP of likely $358,000 in 2007 (later adjusted to $325,000 to trade-off issues on an abandoned appeal) from the divided RCMP and NB pensions. She commenced to draw funds from this capitalized asset. She also commenced to receive CPP retirement benefits as of November 2014. Currently her CPP benefits are approximately $339 per month ($4,067 per year). Also, Ms.

Trewin receives financial benefits from her cohabitation with Mr. Banks. They have been in a stable relationship since 2010 and prior to that for almost three years between 2006 and 2009. [ 41 ] In my view all of the changes set out above relate to occurrences since the decision of Justice Bell and were neither known nor foreseen when he made the spousal support order. I also find that they consist of “ changes in the condition, means, needs or other circumstances of either former spouse” that warrant a variation of the spousal support order. [ 42 ] In other words, Mr.

Trewin has met the threshold of proving a material change in circumstances since the making of the original order and that he is entitled to a variation of the spousal support order. His means have been impacted negatively as a result of the various changes to his income sources and Ms. Trewin’s means have increased through her stable repartnering and her access to an

income stream from the divided employment pensions and the CPP retirement benefits.

b) What is the appropriate amount of spousal support? [ 43 ] Having concluded that the variation threshold has been met, the variation of the spousal support order is based on the objectives set out in s. 17(7) of the Divorce Act . 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 [ 44 ] In this case both parties maintained a rather modest standard of living during the marriage. Near its end, they had sold their home and were living in an apartment. When they divorced, it seemed they had few assets to divide except for Mr. Trewin’s two pensions. [ 45 ] During the marriage, Ms. Trewin could not consistently obtain and maintain full time employment although she was a certified RNA. This was due in part to the numerous transfers and relocations related to Mr.

Trewin’s work with the RCMP. The needs of their son also exacerbated her employment efforts as she had to be available for his emergencies. She managed to hold fulltime work for a while which she substituted with part-time hours. Permanent career advancement therefore became difficult for her. Undoubtedly, Ms. Trewin suffered an economic disadvantage arising from the marriage and its breakdown. Nevertheless, she was deemed employable when Justice Bell imputed income to her in the divorce judgment rendered on October 2, 2006.

At that time she was 53 years old and had actually been separated four years earlier in 2002, close to age 49. Post-separation however, Ms. Trewin chose not to work. She offered no valid reason or rationale for not having done so. Had she obtained remunerative employment to assist with her needs, her pension fund could have remained fully invested so that a larger income stream could flow when reaching retirement age. [ 46 ] In my view, it is as a result of Ms. Trewin’s refusal to work and achieve some degree of self-sufficiency that her pension fund finds itself depleted to a balance of approximately $128,000.

That mismanagement cannot be visited upon Mr. Trewin nor can it be viewed as the consequence of an economic disadvantage arising from the marriage or its breakdown. [ 47 ] Currently, Ms. Trewin is in a stable relationship and enjoys the use of her partner’s home and another vacation property on the west coast. I conclude that with her repartnering and the use she has made of the pension asset, she has attained what appears to be a reasonable standard of living. [ 48 ] There is no doubt however that Ms.

Trewin’s standard of living has been enhanced by the spousal support order of $1,650 per month in the initial order and then by a consent variation in the quantum (mid-motion) to $1,200 per month commencing on July 1, 2015. I consider this latter reduction in spousal support to be appropriate as an interim variation pending the hearing. In my view, it addresses the changes that occurred in 2013 when at age 60 Mr. Trewin’s revenues decreased on transitioning from the Medavie LTD payments to the “in-pay” commencement of his New Brunswick retirement pension and in 2014 when Ms.

Trewin commenced to receive the retirement and split CPP benefits. Further adjustments are now necessary to the spousal support order to coincide firstly with the date of the hearing of the motion on its merits in October 2017 and with the further changes that will occur upon the parties attaining age 65 by the end of 2018, and again thereafter in order to phase out the support obligations. ─ (

b) Relieve any economic hardship of the former spouses arising from the breakdown of the marriage [ 49 ] Ms. Trewin will incur some economic hardship if the current spousal support order is terminated. Indeed, she will suffer ongoing hardship if the support is reduced. To offset some of the hardship, the Court must nevertheless consider that she derives financial benefits from her stable relationship with Mr. Banks and has lifestyle-related advantages.

Any hardship is in my view also offset by the duration of the spousal support order to date, its long-standing range quantum at the high end, and her obligation to prudently manage her pension fund since its initial transfer to her in 2007. ─ (

c) In so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time [ 50 ] Following the breakdown of the marriage, Mr. Trewin remained self-sufficient mainly because he received monthly disability insurance payments (later crossed-over to the New Brunswick pension in August 2013) and he was in-payment of the RCMP pension and a modest VAC pension for PTSD.

[51] As for Ms. Trewin, she did not appear to be concerned with economic self-sufficiency. I find she simply refused to workalthough Justice Bell had concluded she had a residual earning capacity. I see no reason to alter Justice Bell’s finding of her residualearning capacity. I also find that she should have managed more prudently her pension fund. By keeping it invested at a reasonable rateof return and drawing a conservative minimum of $14,000 per year commencing say at age 60 in December 2013 or later, she could havecontributed to her own economic self-sufficiency for many more years. [52] In Campbell v.

Vaughan [2016] N.B.J. No. 41, the Court of Appeal reiterated the importance of explaining the approach toimputing income from a previously divided asset. While in this case, the Court does not have actuarial evidence to calculate Ms.Trewin’s income stream that the $325,000 fund could generate for imputation purposes, it is clear that the capital alone if properlymanaged with draws of approximately $14,000 commencing as of age 60 in 2013 would generate in excess of 23 years of withdrawals($325,000 / $14,000 = 23.2 years).

That is so without even accounting for the interest earned on the funds which should provideadditional years of an income stream. On that basis and without the benefit of actuarial evidence, I conclude the amount of $14,000 peryear is a reasonable imputation of converted recurring income from the divided pensions that she could have accessed as of December2013. Double recovery [53] It is noteworthy that in granting the corollary relief order of spousal support, and determining the incomes of the parties, JusticeBell did not include the income stream from the employment-based pensions.

I infer from that approach that generally he was trying toavoid double recovery, or in other words, avoid ordering the payment of spousal support from the already-divided capitalized pensionassets. [54] In Boston v. Boston 2001 SCC 43 , [2001] 2 S.C.R. 413 the Supreme Court of Canada asserts that as a generalproposition, the income stream of the payor generated by a previously divided asset such as a pension, should not be utilized for thepurpose of calculating spousal support obligations unless the recipient discharges the burden of proving “need” as its exception.

That isin my view the approach that Justice Bell took when he made the initial order and excluded from Mr. Trewin’s income, his monthlyRCMP pension payments. [55] Currently, the RCMP pension generates a gross amount of $1,445 per month or $17,340 per year. As indicated earlier, theProvince of New Brunswick pension generates a gross amount of $1,570 per month or $18,840 annually. Mr. Trewin commenced to bein-pay of that latter pension in August of 2013 after he reached age 60. He contributed to the New Brunswick pension fromapproximately 1997 to 2005 when he retired due to the onset of Parkinson’s disease.

Subsequently, the pension continued to accrue untilJuly 2013 after reaching age 60, for a total of 16 years. It is therefore fair to assume that only the sum of $883 per month or $10,598 peryear reflects the undivided income stream from this asset. ($18,840 x 9/16 years undivided = $10,598 per year or $883 per month). [56] There are two approaches that can be taken to calculate the income of the payor and of the recipient on the basis of Boston andon the facts of this case. [57] The first is to utilize the full income of Mr.

Trewin including both the pension with the RCMP ($17,340) and with the Provinceof New Brunswick ($18,840), the CPP disability ($12,552) and the grossed up VAC pension ($547 plus 25% gross-up of $137 = $684 x12 = $8,208) for a total of $56,940 per year. Then for Ms.

Trewin her income would include $6,000 as her residual earning capacity, astream of $14,000 from the capitalized value of the divided pensions, her CPP benefits that she commenced to receive as of 2014according to her tax returns, being $3,944 in 2014, $4,015 in 2015 and $4,063 in 2016 and a relatively similar amount in 2017 as the CPPis indexed annually on January 1; the actual gross amount for 2017 is not before the Court. Therefore for ease of calculation the annualgross CPP for 2016 will be applied to 2017 as well.

Her total annual income for 2014 to 2017, exclusive of spousal support, is as follows: SOURCE OF INCOME 2014 2015 2016 2017Residual earning capacity 6,000 6,000 6,000 6,000Imputation from divided RCMPand NB pensions 14,000 14,000 14,000 14,000 CPP 3,944 4,015 4,063 4,063TOTAL ANNUAL INCOME $23,944 $24,015 $24,063 $24,063 [58] The second option is to exclude from Mr. Trewin’s income, the full amount of the divided RCMP pension, and the dividedportion of his New Brunswick pension, $8,242 ($18,840 - $10,598 = $8,242).

It is therefore fair to assume that only the sum of $883 permonth or $10,598 per year reflects the undivided income stream from this asset. ($18,840 x 9/16 years undivided = $10,598 per year or$883 per month).

[59] This would therefore reflect for Mr. Trewin an income that includes the sum of $10,598 from the undivided portion of theprovincial pension, the CPP disability of $12,552 and the grossed up VAC disability pension of $8,208 for a total of $31,358. Thisoption would also mean that for the calculation of Ms. Trewin’s income, the imputation from the RCMP and the NB pension fundswould not be included. Her income would be solely based on the residual earning capacity of $6,000 and the CPP earnings as statedabove.

This would amount to a total of $9,944 in 2014, $10,015 in 2015, $10,063 in 2016 and again $10,063 in 2017. [60] In assessing the quantum range of support, reference is made to the Spousal Support Advisory Guidelines (SSAG) and theDivorceMate software. It is worth noting that the jurisprudence has evolved to the point where the SSAG can be helpful in thequantification of a variation amount as long as concerns of entitlement are considered. [61] On the question of entitlement, it has not been seriously disputed. I conclude that Ms.

Trewin’s entitlement continues to existalthough the strength of its compensatory element is less significant and weighty today because of the financial support Mr. Trewinprovided since 2002. I include in the term “financial support”, the unquantified value relating to the fact that Justice Bell also divided toher benefit two years of post-separation pension credits in the CPP pension credit division and in the New Brunswick pension division.

I also find it reasonable to conclude that within a reasonable timeline, the compensation will have been adequate. [62] As indicated earlier, the original spousal support order of October 2, 2006 in the amount of $1,650 per month was situated atthe high end of the range and was given a retroactive effect to October 1, 2004 with a set-off against voluntary payments Mr. Trewin hadmade in the interim. In reality then Ms. Trewin has been receiving spousal support or its equivalent at the high end of the SSAG rangesfor now over 15 years.

Even the reduction to $1,200 per month (by consent) commencing July 1, 2015, in the context of this motion,does not change my view that the quantum was located at the higher end of the range throughout. [63] As to Ms. Trewin’s needs however, much is offset by the pension fund from which I have imputed an income stream. It is alsooffset by the fact of her long term stable re-partnering that affords a comfortable lifestyle in British Columbia. As a result I conclude thatMs.

Trewin should not be entitled to have spousal support paid to her from the divided pension assets and that the quantum should moreclosely reflect the ranges in the second option set out above with adjustments for the benefit of re-partnering. In other words, she has notmade out a case for the needs-based exception to double recovery set out in Boston as her needs are met in part by her new partner. [64] The SSAG calculations on the second option recommend the following quantum of spousal support: $688 at the low end, $803at mid-range and $892 at the high end.

For clarity, the Court’s own input into the DivorceMate software called for an automatic gross-upon the tax-free VAC benefits. The data input for Ms. Trewin relates to the CPP retirement benefit and the residual earning capacitybenefit (ie intentional under-employment/unemployment). [65] In Mr. Trewin’s pleadings, specifically at paragraph 11 of his affidavit dated April 24, 2014, he claims a variation and/ortermination of spousal support retroactive to July 1, 2013. In turn, in her affidavit, Ms. Trewin opposes any reduction beyond the existingquantum of $1,200 per month.

She also opposes any adjustments that would take into consideration the age 65 changes for both as shesays it requires further disclosure (see paragraphs 17-18 of her affidavit dated November 22, 2016). [66] In respect of an appropriate commencement date for the variation of spousal support, I am of the view that the interim consentarrangement of July 2015 that resulted in an interim reduction of spousal support to $1,200 per month should remain in place until themonth of October 2017 when the motion hearing was held on its merits. By doing so I am recognizing that Ms.

Trewin’s strongcompensatory entitlement was being addressed generously and that by October 2017 it is reasonable to expect that she transition towarda more significant reduction in a step-down fashion and toward the elimination of the support altogether. [67] Having regard to the evidence before the Court, the financial circumstances of the parties, their means and needs, the number ofyears that spousal support has been paid to date as well as the overall circumstances of the parties, and further having regard to thefactors and objectives of a variation order as set out in s. 17 of the Divorce Act, I conclude that a step-down variation order is appropriatein this case.

Such transitional orders has been recognized in a number of superior court decisions. (For example see: M.(K.A.) v. M.(P.K.)2008 BCSC 93 , [2008] B.C.J. No. 121 and Bishop v. McKinney [2015] O.J. No. 4620). [68] Accordingly, a variation is confirmed consistent with the mid-motion adjustment on the consent of the parties (the Order ofSeptember 25, 2015 retroactive to July 1, 2015) such that commencing July 1, 2015 and monthly thereafter, Mr. Trewin shall pay spousalsupport to Ms. Trewin in the amount of $1,200 per month until September 1, 2017, the month prior to the hearing of the motion.

Commencing October 1, 2017 and monthly thereafter, Mr. Trewin shall pay spousal support to Ms. Trewin in the amount of $800 per

month until December 1, 2018, the month in which she reaches age 65 and becomes entitled to the Old Age Security, a statutory income- based benefit. By then as well, Mr. Trewin will have reached age 65 on June 18, 2018 with a projected reduction to his income of approximately $8,500 per year as described earlier. [ 69 ] In my view, spousal support should be further adjusted as of January 1, 2019 shortly after both parties will have attained age 65. The jurisdiction to set the amount of spousal support post-retirement was addressed by our Court of Appeal in Vaughan v Vaughan [2014] N.B.J. No. 35 (NBCA) .

The Court of Appeal concluded that a trial judge did not have jurisdiction to fix the amount payable post- retirement in a case where the payor had made plans to retire at a given date and had provided an estimation of his post-retirement income. In my view the facts of this case are distinguishable from Vaughan for the following reasons. Firstly, there is no speculation surrounding the statutory CPP cross-over adjustments from the disability pension calculation to the retirement pension calculation in the case of Mr. Trewin when he reaches age 65 in June 2018.

Nor is there any speculation on how his New Brunswick pension will be automatically reduced. The evidence of the projected amounts is before the Court. Further for both parties, their respective access to the statutory Old Age Security benefits (OAS) at age 65 is outside the realm of speculation. Indeed it is reasonable to infer that Ms. Trewin will also qualify for the Guaranteed Income Supplement (GIS) under the OAS regime given the level of income and the type of reporting her tax returns reveal. While the amount each will receive under the OAS (and GIS in the case of Ms.

Trewin) cannot be determined to the penny, those changes will occur. Accordingly, commencing January 1, 2019, the spousal support payable shall be further reduced to the sum of $400 per month. [ 70 ] I also find that this is an appropriate case for a step-down order for transitioning toward the termination of spousal support to recognize the fact that Ms. Trewin has been compensated at the high end of the SSAG range for more than 15 years and that she should ease out of her reliance on Mr. Trewin for support.

I find it reasonable to conclude that between now and 2022, her compensatory claim will have been adequately satisfied through decreasing spousal support payments and her needs will continue to be met through her pension income stream and Government of Canada benefits (CPP, OAS and GIS) as well as the financial advantages that flow from repartnering. [ 71 ] Accordingly, the spousal support obligations of Mr.

Trewin are set at $300 per month commencing January 1, 2020 to December 1, 2020, then at $200 per month from January 1, 2021 to December 1, 2021, then at $100 per month from January 1, 2022 to December 1, 2022 at which time all spousal support obligations shall cease. COSTS [ 72 ] Considering the overall nature of the claims, and the Court’s ruling, I find that on the whole, Mr. Trewin is the successful party. He is therefore entitled to costs that I fix at $1,500 plus allowable disbursments. DISPOSITION [ 73 ] The following is the variation order of the Court:

a) The Order for Corollary Relief dated May 1, 2007 (effective October 2, 2006) is varied as follows:

i) Commencing July 1, 2015 and monthly thereafter, the Applicant Douglas William Trewin shall pay spousal support to the Respondent Holly Lee Trewin in the amount of $1,200 per month until September 1, 2017.

This confirms the variation by consent effective July 1, 2015 as set out in the Order dated September 25, 2015. ii) Commencing October 1, 2017 and monthly thereafter, the Applicant Douglas William Trewin shall pay spousal support to the Respondent Holly Lee Trewin in the amount of $800 per month until December 1, 2018. iii) Commencing January 1, 2019 and monthly thereafter until December 1, 2019, the Applicant Douglas William Trewin shall pay spousal support to the Respondent Holly Lee Trewin in the amount of $400 per month. iv) Commencing January 1, 2020 and monthly thereafter until December 1, 2020, the Applicant Douglas William Trewin shall pay spousal support to the Respondent Holly Lee Trewin in the amount of $300 per month.

v) Commencing January 1, 2021 and monthly thereafter until December 1, 2021, the Applicant Douglas William Trewin shall pay spousal support to the Respondent Holly Lee Trewin in the amount of $200 per month. vi) Commencing January 1, 2022 and monthly thereafter until December 1, 2022, the Applicant Douglas William Trewin shall pay spousal support to the Respondent Holly Lee Trewin in the amount of $100 per month at which time the Applicant shall be relieved of his spousal support obligations.

b) Holly Lee Trewin shall pay to Douglas William Trewin, costs that I fix at $1,500 plus allowable disbursements. DATED at Moncton, N.B., this 14 th day of December, 2017. _______________________________________ Brigitte M. Robichaud Justice of the Court of Queen’s Bench of New Brunswick