HARVEY RALPH PIPPIN PETITIONER (RESPONDENT BY COUNTER-PETITION) - v. -, 2014 SKQB 348

QUEEN ’ S BENCH FOR SASKATCHEWAN Citation : 2014 SKQB 348 Date: 2014 10 24 Docket: DIV 708 of 1995 Judicial Centre: Saskatoon, Family Law Division BETWEEN: HARVEY RALPH PIPPIN PETITIONER (RESPONDENT BY COUNTER-PETITION) - and - MARY ELIZABETH PIPPIN RESPONDENT (PETITIONER BY COUNTER-PETITION) Counsel: Patrick H. Loran for the petitioner Sherry L. Fitzsimmons for the respondent JUDGMENT GOEBEL J. October 24, 2014 Introduction and History of Proceedings [ 1 ] The parties were married in September 1966 and separated in August 1995. They had a traditional marriage.

By the time of the separation the three children of the marriage were adults and the wife worked part time as a care aid. [ 2 ] In October 1996 they proceeded to trial on issues of property and spousal support before Madam Justice Carter. The total value of the matrimonial property at that time was found to be in the range of $450,000 and debt to be in the range of $180,000. Carter J.

found the husband to have employment income in the sum of $52,624 per year and anticipated that he would continue to receive asignificant tax refund from claiming a loss on his business as well as nominal income from the sale of used cars, parts and scrap metal.The wife’s income was found to be in the range of $7,000 to $13,600 per year. [3] At the trial there was evidence that the wife was likely to receive a lump sum personal injury award in the future. Thehusband argued that this should be factored into the spousal support issue.

In that regard Carter J. held: … Whatever the source may be, there is no doubt that the income of the petitioner far exceeds that of the respondent. She has certainlybeen disadvantaged by the break-up of the marriage, and by the marriage itself when she used a good deal of her income in seeing herchildren through their post-secondary education because their father refused to help pay for this. The petitioner points to the fact that therespondent may receive a considerable sum on a personal injury claim by settlement or trial.

If that should occur then no doubt anapplication may be made for variation. … [4] By judgment dated December 4, 1996 [Pippin v Pippin (1996), (SK KB), 151 Sask R 20 (QB)], Carter J. ordered the husband to pay $800 per month in support commencing the 1st of December, 1996. [5] Following the trial there was a dispute about the implementation of the judgment respecting property.

A subsequentapplication was brought in April 2001 for direction from the court at which time the court calculated each party’s share of property at$165,965 net. [Pippin v Pippin, 2001 SKQB 212, 208 Sask R 31] [6] In mid-2001, the wife received a personal injury settlement in the sum of $41,243. Upon becoming aware of this payment,the husband brought an application to vary the support award. By that date the wife’s income had increased to $21,000 per year and thehusband’s income had increased to $62,000 per year.

In considering whether the personal injury award constituted a material change incircumstances, Smith J. stated that “[i]t is noteworthy that Carter J. did not allow what quantum she had in mind which would ground thevariation application.” [Pippin v Pippin, 2003 SKQB 17, 228 Sask R 285] [7] In dismissing the application, the court held that the discrepancy in the income remains significant and the personal injuryaward, “while not insignificant, does not in the total context of the matrimonial property weigh heavily enough to constitute a materialchange sufficient to warrant a variation of the 1996 order.” [8] The husband continued to pay the support as ordered.

He retired from employment in 2007 and his spouse retired in mid-2013. The wife retired from her employment as a care aid in 2009. [9] Sometime in 2011, the wife received an inheritance. In 2013, the husband sought disclosure from the wife respecting theinheritance and her income. The wife did not provide the requested information and in November 2013 the husband served and filed anapplication for variation.

The parties and their counsel engaged in efforts to identify and exchange information for the following sixmonths until the application was heard in chambers. [10] By the date of the hearing it was not disputed that both parties were retired and that the inheritance received by the wifewas valued at approximately $330,000. The Position of each Party [11] The husband argues that the spousal support award should terminate. In support of his application, he submits that theoriginal order, made over 18 years ago, never intended to continue into the retirement of the parties.

He states that he and his spouse areboth retired and rely upon their registered investments and some modest revenue income for their support. He also alleges that the wife’sreceipt of an inheritance valued at $330,000 constitutes a material change in her means, needs and circumstances and justifies atermination in support. [12] The husband deposed that the value of his retirement funds at September 30, 2013 was $139,347 and that he continues todraw the sum of $3,500 per month from the investment in order to meet his expenses and pay support.

He acknowledges that he and hiscurrent spouse jointly their home and a revenue property. His evidence indicates that the income generated from the revenue propertycould be as high as $21,300 per year ($43,200 gross rent if fully occupied for the entire year less $21,900 in costs related to taxes,insurance, interest and utilities). He states that his spouse is retired and is suffering with multiple sclerosis. She is in receipt of her ownpension funds in the sum of $3,500 per month. [13] The wife provided evidence as to her current circumstances.

She retired from employment as a care aid in 2009 and workscasually doing food demonstrations at grocery stores. She alleges that she has a number of health concerns which impact her ability towork. [14] She acknowledges having received an inheritance but states that it did not change her financial position. She states that sheused the funds to purchase a condominium and to pay debts. She acknowledges that she allowed her son to access the line of credit onher condominium to the extent of $120,000 for which he pays her $700 per month.

She does not dispute that she has approximately$200,000 in retirement funds. [15] The wife argues that the court ordered spousal support payment should be increased. While she did not bring a separateapplication, her position appears to be grounded upon the fact that the husband has re-partnered while she has remained alone and asuggestion that while the husband has continued to live at the family home, she has changed her residence twice in the past 10 yearsduring which time her cost of living has increased. [16] The wife argues that the application to vary should be directed to a trial.

She states that some uncertainty remainsrespecting the husband’s ownership interest in and/or income from his spouse’s business. She does not deny that she has been given an

opportunity to request documentation from the husband and to examine him under oath nor does she deny that he provided a detailed response to the lengthy notice to disclose served upon him. Rather, she states that he provided unsatisfactory answers to the questions posed and should be tested under cross-examination. [ 17 ] The husband is clearly frustrated with the delay occasioned by the wife’s piecemeal approach to discovery and her position that she needs more information. He deposed that he has invited her to advise him if there was any other information she required and has received no response.

He states that the same argument was raised at the last hearing date when it was alleged that they needed more clarity around pension funds. He states that the requested information was been provided and he is now exasperated to hear the wife suggest that a disclosure of a different type may be required in order to proceed. He argued strenuously that they have been engaged in a “cat and mouse” game of disclosure requests for almost a year which has increased costs and created delay. He is asking that a decision be rendered without further delay and argues that there is a sufficient evidentiary basis for doing so.

Issues 1. Does the court have sufficient information to make a final determination in chambers? 2. Has the husband met the onus upon him to demonstrate that a material change in circumstances has occurred? 3. If so, what variation order, if any, is appropriate having regard to the change and the objectives of the Divorce Act , RSC 1985, c 3 (2d Supp)? Analysis Does the court have sufficient information to make a final determination in chambers? [ 18 ] The husband is asking that a final decision be made in chambers.

He does not want the matter delayed further nor does he feel the expense of a pre-trial conference and/or trial to be justified in the circumstances. [ 19 ] Where appropriate, rendering a final determination in chambers provides parties with a less expensive and more expeditious procedure and enhances their access to justice.

Where the court is able to decide a matter without making evidentiary findings based on controverted facts, then it is in the interest of parties with limited means to make the determination without further delay and increased costs. [ 20 ] Recently, the Supreme Court of Canada had an opportunity to consider

summary procedures within civil justice in Hryniak v Mauldin , 2014 SCC 7 , [2014] 1 SCR 87 . The court concluded that

summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims. The court stated: 1 Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial. Without an effective and accessible means of enforcing rights, the rule of law is threatened.

Without public adjudication of civil cases, the development of the common law is stunted. 2 Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case.

The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just. The court further stated at para. 28: 28 This requires a shift in culture. The principal goal remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible — proportionate, timely and affordable.

The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure. [ 21 ] While the Supreme Court considered the

summary judgment rules in a civil, non-family law context, the same rationale must certainly apply in family law matters where access to justice concerns are even more pronounced. [ 22 ] In this instance, it is not disputed that the application to vary is a final application and s. 17 of the Divorce Act which governs this application does not impose any procedural restrictions. [ 23 ] In Gore-Hickman v Gore-Hickman , 2008 SKQB 185 , Popescul J. (as he then was) considered the appropriateness of rendering a final decision on a variation application brought in chambers.

He held: 15 When a variation application comes before a Chambers judge, he or she has an obligation to consider the material and, if possible, make a final decision on the affidavit material presented. In the event that the Chambers judge is able to do so, a final decision, insofar as matters involving family law issues can ever be said to be “final”, can be rendered.

If, on the other hand, the Chambers judge determines that he or she is unable to render a final decision based upon the material before he or she, due to the conflicting nature of the affidavits or for whatever other reason, a trial of the issue can be ordered. In such case, the Chambers judge may choose to make an interim order pending final determination at trial. … [ 24 ] In determining how to proceed, the court must consider whether there is sufficient uncontroverted evidence on relevant matters which allows the court to render a final determination.

This does not mean that a trial is required each and every occasion where there is conflict in the affidavit materials. The ability of a judge to find necessary facts and to decide if it is just to resolve the issues

before the court depends on the nature and quality of all of the material. [25] As stated by the Privy Council in Yong v Letchumanan, [1980] AC 331 (PC) at 341: Although in the normal way it is not appropriate for a judge to attempt to resolve conflicts of evidence on affidavit, this does not meanthat he is bound to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on an affidavit,however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the samedeponent, or inherently improbable in itself it may be.

In making such order on the application as he “may think just” the judge is vestedwith a discretion which he must exercise judicially.

It is for him to determine in the first instance whether statements contained inaffidavits that are relied upon as raising a conflict of evidence upon a relevant fact have sufficient prima facie plausibility to merit furtherinvestigation as to their truth. (Taggart J.A. in Placer Development Ltd. v Skyline Explorations Ltd. (1985), (BC CA), 67 BCLR 366 (BCCA) at 385-386 ). [26] In the case at hand, the wife does not so much argue that the relevant evidence is controverted but rather, that she wouldlike an opportunity to continue to gather information and/or cross-examine the husband as to his past income, particularly whether hereceived income or other benefits from his spouse’s business.

The evidence indicates that as of mid-2-13, the husband’s spouse no longeroperate this business. To send the matter to a trial to determine what he may have had available to him in the past is not necessary nor inthe interests of justice. No one is seeking a retroactive change to the order. [27] In the circumstances, there is sufficiently clear and uncontroverted relevant evidence upon which I can proceed with afinal determination. It is also in the interests of justice that I do so. The original order was made almost 18 years ago after a full trial.

Theparties have been through numerous chambers applications since the trial. Most recently, the parties have been involved in months ofdisclosure including examinations for discovery, exchange of notices to disclose, the provision of undertakings and invitations to attendat the lawyers’ offices to review documents. Both parties are retired and have modest incomes. It is neither necessary nor in the interestsof justice to direct this matter to a trial. Has the husband met the onus upon him to demonstrate that a material change in circumstances has occurred? The Legislation [28]

Section 17 of the Divorce Act sets out the statutory framework for the variation, rescission and suspension of spousalsupport orders. The pertinent portions of that

section are 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; or ...

(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. ...

(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. [29] The oft-cited Supreme Court of Canada decision in Willick v Willick, (SCC), [1994] 3 S.C.R. 670,provides guidance when applying s. 17 as follows: 20 … The approach which a court should take is to determine first, whether the conditions for variation exist and if they do exist whatvariation of the existing order ought to be made in light of the change in circumstances. 21 In deciding whether the conditions for variation exist, it is common ground that the change must be a material change ofcircumstances.

This means a change, such that, if known at the time, would likely have resulted in different terms. The corollary to this isthat if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis forvariation. …

[ 30 ] The Supreme Court of Canada recently considered s. 17 again in L.M.P. v L.S. , 2011 SCC 64 , [2011] 3 SCR 775 , and R.P. v R.C. , 2011 SCC 65 , [2011] 3 SCR 819 . The court confirmed that the party seeking a variation holds the burden of proof to satisfy the court that there has been a material change in circumstances before the court is entitled to make any variation. If that threshold is met, the court may then consider the appropriate variation given the material change and in so doing, is mandated to reflect upon the objectives set out in s. 17(7).

Analysis [ 31 ] In making her decision the trial judge focused upon the disparity in income between the spouses at the time of the trial. Both parties acknowledge that they have experienced a significant change in income arising out of their retirement. Neither party suggested that the retirement of the other spouse was premature or unreasonable. Given their respective ages, it is contemplated that they have both decided to retire for appropriate reasons and not as a bad faith attempt to manipulate their positions vis-à-vis spousal support.

The original judgment did not contemplate retirement and while it could be argued that aging and retirement is always foreseeable, I find that the retirement of the parties constitutes a material change in circumstances which was not taken into account when the original order was made. [ 32 ] Secondly, the trial judge contemplated that a variation application would be brought, and appropriately grounded, in the event that the wife received a lump sum payment. At the time of the trial, the nature of the lump sum payment was anticipated to be a personal injury award.

The fact that the lump sum payment at issue in this application is an inheritance is inconsequential. Either way, the fact that the wife has received a significant lump sum payment constitutes a material change in circumstances. [ 33 ] Finally, while the onus is upon the husband who brought the application, the wife did not oppose a finding that there has been a material change. In fact, her materials suggested that the spousal support award be increased.

What variation order, if any, is appropriate having regard to the change and the objectives of the Divorce Act ? [ 34 ] Having found that a material change in circumstances has been established, I must decide what variation of the existing order ought to be made in light of the change taking into account the objectives listed in s. 17(7). [ 35 ] The uncontroverted evidence indicates that the income of both parties has been impacted by their respective retirement.

In addition, the wife’s expenses and needs have changed by virtue of the inheritance she received. [ 36 ] The wife is 69 years of age and testified that she is in receipt of the following income: - $6,983 CPP - $6,510 OAS - $2,240 employment income She also has almost $200,000 in retirement funds. [ 37 ] The wife’s expenses are set out in her financial statement. It is appropriate to make a few adjustments to those expenses given the wife’s evidence.

For example, her financial statement claims $5,000 per annum for MasterCard while her affidavit indicates that her credit card debt was paid off by the inheritance and the account statements she filed demonstrate that she is not carrying any balance. Her financial statement also claims a $4,800 annual expense for her line of credit when the documents she filed indicate that she pays approximately $547 per month in interest to service that debt and that her son pays her $700 per month relating to his share of that debt.

With these adjustments, the wife’s living costs become approximately $34,000 per annum resulting in a deficit of approximately $18,000 per year. The fact that her expenses are modest is in part due to the receipt of the inheritance which allowed her to pay off debt and purchase affordable housing with minimal maintenance costs. [ 38 ] The husband is 68 years of age and retired in 2007.

He reports the following income in addition to the sum he is withdrawing from his retirement funds: - $6,130 CPP - $6,510 OAS - $4,681 employment income (RM Councilor) - $544 net farming income - $3,006 net rental income He also has access to $130,000 in retirement funds. [ 39 ] The husband remarried in 2001. His spouse is also retired and receives pension income. The expenses outlined in his financial statement include shared housing costs for him and his spouse.

If the total housing costs are divided in half and added to the remaining expenses, his claimed living costs appear to be in the range of $50,000 per year resulting in a deficit of approximately $29,000 per year.

[ 40 ] Given the ages and financial situation of both parties resulting from the material changes, it is reasonable to expect the wife to begin drawing upon her registered investments to supplement her expenses in a manner similar to what is being done by the husband. In so doing, her modest needs could be met on her own resources. [ 41 ] Taking into account the material changes and the objectives of the Divorce Act , I find that it is appropriate that the spousal support payment ordered by Justice Carter on December 4, 1996 terminate. At present, the disparity in incomes is modest.

Both parties have insufficient means to meet their reasonable expenses and must rely upon their capital to supplement their income. Commencement Date [ 42 ] The husband originally requested disclosure in July 2013. The wife did not provide the requested disclosure which resulted in a delay. The husband brought the application to vary in November 2013. By the return date in January, 2014 the husband also applied to suspend the spousal support payments until the matter could be heard. [ 43 ] The matter came before Zuk J. on January 24, 2014.

At that time the wife indicated she required additional information on the husband’s pension in order to proceed. The court provided some direction on disclosure and discovery and stated that “I … would be inclined to look at a suspension of monthly support payments if this matter drags into March as I don’t believe much delay has been occasioned by Mr. Pippin.” [ Pippin v Pippin (24 January 2014) Saskatoon, Div 708/95 (Sask QB)] [ 44 ] Despite this order, the husband unilaterally stopped making spousal support payments in March 2014.

At the hearing in June, the wife indicated that rather than incur costs to enforce the order, she decided to leave the issue in the hands of the court when it was argued. [ 45 ] In the circumstances, I find that the appropriate date for termination of the spousal support payment to be June 30, 2014, the month when the application to vary was argued in court. In light of the order of Zuk J., it was not appropriate for the husband to unilaterally terminate support payments rather than pressing his application forward. Costs [ 46 ] The husband is seeking costs.

While he has been successful in this matter, and while the path that ultimately led to this determination was lengthy and at times frustrating, in the end the wife provided the requisite disclosure and appropriate arguments were advanced and determined. Given all of the circumstances and the limited means of both parties, I exercise my discretion to make no order as to costs. J. G.V. GOEBEL