Anderson v. Anderson, 2014 NSSC 7

Supreme Court of Nova Scotia (FAMILY DIVISION) Citation: Anderson v. Anderson , 2014 NSSC 7 Date: 2014-01-13 Docket: SFH 1201-64681; SFHD-70904 Registry: Halifax Between: Jennifer Louise Anderson Petitioner v. Ryan Andrew Anderson Respondent Library Heading Judge: The Honourable Justice Elizabeth Jollimore Heard: January 3, 2014 in Halifax, Nova Scotia

Summary: Former husband applied to terminate spousal support on basis of former wife’s remarriage and increased income. Re-marriage was a material change but increased income was not shown to be a long-lasting change. Amount of support not varied: it remained appropriate in light of spousal support objectives. Key Words: Family, Divorce Act , spousal support variation, material change Legislation: Divorce Act , R.S.C. 1985 (2 nd Supp.), c. 3, subsection 17(4.1), subsection 17(7) THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET.

Nova Scotia SUPREME Court (FAMILY DIVISION) Citation: Anderson v. Anderson , 2014 NSSC 7 Date: 2014-01-13 Docket: SFH 1201-64681; SFHD-70904 Registry: Halifax Between: Jennifer Louise Anderson Petitioner v. Ryan Andrew Anderson Respondent Judge: The Honourable Justice Elizabeth Jollimore Heard: January 3, 2014, in Halifax, Nova Scotia

Counsel: Kerri-Ann Robson, for Mr. Anderson Jennifer Anderson, on her own By the Court: Introduction [1] Ryan Anderson’s applied to vary the spousal support terms of a 2012 Corollary Relief Order. He wants his obligation to payspousal support to be terminated as of March 31, 2013 and asks that any payment he made after that date be treated as an overpayment. He also wants Jen Anderson ordered to pay costs. Family background [2] Jen and Ryan Anderson were married for five years. They have two daughters. Neela was four and Summer was eighteenmonths old when their parents separated in December 2008.

The girls and their mother moved to Ms. Anderson’s parents’ home after theseparation. Both Ms. Anderson’s parents worked, and the cost of childcare limited Ms. Anderson’s return to the workforce. She choseto pursue self-employment as a family photographer, which would allow her flexibility to meet the girls’ needs. [3] Justice Williams presided over the divorce trial in October 2011, and his decision is reported as Anderson, 2011 NSSC 504. The Corollary Relief Order was finalized in November 2012. Justice Williams found that there were economic disadvantages thataccrued to Ms.

Anderson from the breakdown of the marriage and, at paragraph 36, he said he had no difficulty in concluding she wasentitled to spousal support. [4] Justice Williams ordered Ryan Anderson to pay spousal support of $265.00 each month to Jen Anderson for four years. Payments were to start in November 2011 and end in October 2015. The Corollary Relief Order indicated that Mr. Anderson’s incomewas $63,391.20 and Ms. Anderson’s was $12,000.00.

Subsection 17(4.1) of the Divorce Act [5] I have authority to vary spousal support only where the requirements of subsection 17(4.1) of the Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3 are met. This subsection says that before I may vary a spousal support order, I must be satisfied that there’s been achange “in the condition, means, needs or other circumstances of either former spouse” which occurred since the making of the spousalsupport order sought to be varied. [6] In Willick, (SCC), Justice Sopinka wrote the reasons for the majority of the Supreme Court.

At paragraph 20of those reasons he described the test for varying a spousal support order: In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances. This means that change, such that, if known at the time, would likely have resulted in different terms. The corollary to this is that if thematter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for a variation. [7] Willick, (SCC) was a case involving the variation of child support payments. In G.(L.) v.

B.(G.), (SCC), this analysis was clearly stated to apply to cases involving the variation of spousal support: Justice Sopinka says so atparagraph 73 of the majority reasons and Justice L’Heureux-Dubé says so at paragraphs and 49 to 51 of the minority reasons. [8] In addition to the requirement that the change be one which was not reasonably anticipated by the parties, the change must alsohave other qualities. In P.M.B. v.

M.L.B., 2010 NBCA 5 at paragraph 2, Justice Robertson said that “as a general proposition, the courtwill be asking whether the change was significant and long-lasting; whether it was real and not one of choice.” The Nova Scotia Courtof Appeal approved of P.M.B. v. M.L.B., 2010 NBCA 5, at paragraph 21 of Smith v. Helppi, 2011 NSCA 65, referring to the decision bythe style of cause under which it had earlier been reported. [9] If there has been a material change, my variation order is to address the objectives for spousal support stated in subsection17(7) of the Divorce Act.

Has there been a material change? [10] Mr. Anderson bears the burden of proof. He says there are two changes: Jen Anderson has re-married and her annual incomehas increased to $20,775.00. Re-marriage [11] Ms. Anderson began a relationship with Shawn Matchett prior to June 2010 when he was posted from Nova Scotia to Ontario. At the time of the hearing before Justice Williams in October 2011, she and Mr. Matchett were “on a break”. The two had separated to

assess their relationship. They reconciled in November 2011 and were married in a private ceremony on March 30, 2013. [12] Re-marriage has been accepted as a material change. Justice Scaravelli made such a finding in Ferguson v. Gates, 2010 NSSC88. Ms. Anderson’s income [13] Ms. Anderson’s income was stated to be $12,000.00 in the Corollary Relief Order. According to her 2011 tax return, her totalincome was $13,327.57. This was her net business income. Her gross business income was $17,011.74. She had no other income thatyear. [14] In 2012 Ms.

Anderson’s total income was $20,777.13 which was derived from earnings of $1,088.00, an RRSP withdrawal of$4,973.16 and net business income of $14,715.00. Her net business income in 2012 was $1,387.43 greater than her net business incomein 2011. [15] The increase in Ms. Anderson’s income is largely attributable to the withdrawal of approximately $5,000.00 from her RRSP. Without this money, her total income in 2012 would have been $15,803.97. This is roughly $2,500.00 more than her total income in2011 and approximately $3,800.00 more than her 2011 income was stated to be in the Corollary Relief Order.

According to the propertydivision chart in the couple’s Corollary Relief Order, Ryan Anderson was to roll-over $5,000.00 in RRSP contributions to Jen Anderson. The chart depicts an equal division of property, leaving each spouse with debt of approximately $2,800.00. Ms. Anderson’s tax returnsshow no deposits to an RRSP, so I conclude that the RRSP withdrawal exhausted her RRSPs and is a non-recurring event. [16] In closing argument, Mr. Anderson acknowledged that the change in Ms. Anderson’s income may not be unforeseeable. Certainly, it was expected that Ms.

Anderson would work on developing her career, expanding her business and increasing her income. [17] Without concluding that the increase in Ms. Anderson’s income was foreseeable, I am not satisfied that the increase is“significant and long-lasting” as Justice Robertson required at paragraph 2 in P.M.B. v. M.L.B., 2010 NBCA 5. Mr. Anderson’s positionis premised on a single year’s earnings. [18] Ms. Anderson filed her tax returns for 2010, 2011 and 2012 with her Statement of Income. These show her total income forthese three years to be $15,000.00, $13,327.57 and $20,777.13, respectively.

Her income is variable and Mr. Anderson hasn’t proven theincrease which occurred in 2012 is long-lasting. This is not a material change. What variation order is appropriate? [19] Since I have found that Ms. Anderson’s re-marriage is a material change, I must consider the objectives of spousal support insubsection 17(7) in making my variation order. [20] The Supreme Court of Canada recognized three rationales for spousal support and discussed these in Bracklow, (SCC). Compensatory support addresses the economic consequences of the marriage and the roles each spouse adopted during it.

Non-compensatory support addresses the economic disparity between the spouses. Contractual support reflects the spouses’ explicit orimplicit agreement about their financial obligations to each other. [21] Justice Williams said that there were economic disadvantages that accrued to Jen Anderson as a result of the breakdown of themarriage. In making his spousal support award at paragraph 35 in Anderson, 2011 NSSC 504, Justice Williams referred to apportioning“some of the expenses relating to the children over and above child support” to Ms.

Anderson and attempting to “relieve the economichardship”. [22] As a result of his posting in Ontario, Mr. Matchett has lived with Ms. Anderson for less than fifty days since their wedding. They spent time together in June, August, September, October and December. In some cases, their time together was just a few days. [23] Mr. Matchett was previously married. His two children live in Ontario with their mother. He has regular access with them and

pays child support for them. [24] Ms. Anderson receives no financial assistance from Mr. Matchett to support herself, her children or their home. Mr. Matchettdoes not live in military housing. He maintains a home in Ontario. [25] In October, Ms. Anderson and Mr. Matchett hosted a celebration of their wedding for family and friends. It cost approximately$9,500.00. Mr. Matchett and his father paid for “a great portion of it”. Ms. Anderson is selling one of the two dresses she wore to thiscelebration. Ms. Anderson travelled to Ontario to spend a weekend with Mr. Matchett in Toronto as a “honeymoon”.

This costapproximately $150.00 because the couple received airline gift vouchers as wedding presents. On occasion when he visits, Mr. Matchetthelps with groceries and gas. [26] Mr. Matchett is seeking a medical release from his military employment. It’s unclear whether or when he will obtain this andand move to Nova Scotia. According to Ms. Anderson, two years ago, she expected Mr. Matchett would be in Nova Scotia by thespring. That didn’t happen so she wouldn’t predict that Mr. Matchett would be in Nova Scotia by this spring. [27] Ms. Anderson and Mr.

Matchett haven’t discussed “in depth” what will happen when Mr. Matchett moves to Nova Scotia. They plan to work together as photographers. Ms. Anderson expects that Mr. Matchett will help with the mortgage, water, heat,electricity, food, toiletries, Netflix, holiday and entertainment expenses. He may contribute to the internet expense. Mr. Matchett hashis own car, which he will bring. He is selling his motorcycle. [28] In his brief, Mr. Anderson acknowledges that re-marriage “is not a reason to automatically vary the spousal support order”. Heargues that it is justified here because Ms. Anderson and Mr.

Matchett have a combined income of “over $80,000 and while they aremaintaining two households, there is a legal obligation to support one another.” [29] Mr. Anderson’s argument contains two points: the new spouses have a combined income that is approximately four timesgreater than Ms. Anderson’s income; and the new spouses have a legal obligation to support one another. [30] With regard to their combined income, to be exact, Ms. Anderson’s 2012 taxable income and Mr. Matchett’s 2012 taxableincome combine to a total of $80,159.13. It is critical to appreciate that Mr. Matchett’s earnings are not part of Ms.

Anderson’shousehold income. She continues to support herself and her children on her income. It has not been shown that she has access toMr. Matchett’s income or that it’s available for her use. The isolation of Mr. Matchett’s income from Ms. Anderson’s is not a ploy tosubvert a variation application, but a requirement of Mr. Matchett’s need to support himself and his children in Ontario. [31] In Bracklow, (SCC) at paragraph 20, Chief Justice McLachlin acknowledged that when spouses marry “theyowe each other a mutual duty of support”.

She said that the “default presumption” is mutuality and interdependence and that: Parties, of course (subject to the Act), may alter this expectation, either through explicit contracting (usually before the union is madewith a prenuptial agreement), or through the unequivocal structuring of their daily affairs, to show disavowal of financial interweaving. [32] At this point in the marriage of Shawn Matchett and Jen Anderson the unequivocal structuring of their daily affairs disavowsfinancial interweaving: the spouses maintain financial independence in their daily affairs. The default presumption is rebutted.

Thepresumption may arise when they cohabit, but it does not yet apply. [33] The new spouses’ combined income and the default presumption of mutuality and interdependence do not, in this case,overcome the economic disadvantage that followed Jen Anderson after her marriage to Ryan Anderson ended, nor do they address theexpenses relating to the girls, over and above child support. [34] Ms.

Anderson says that her work as a photographer and “the need/desire to care for Neela and Summer after school hours and toavoid child care expenses” means she works “school days, weekends, and late hours after both girls have gone to bed in order to keep upwith my work”. She says she’s been working hard since the separation to expand her business “to reach a point where I can start payingoff my debt, and eventually start saving for retirement.”

[ 35 ] Ms. Anderson has no pension. Mr. Anderson contributes to an RRSP which his employer matches. [ 36 ] Ms. Anderson says that her income has been steadily increasing but expenses have prevented her from achieving financial stability.

This is confirmed by her tax returns for the past three years: her income has increased, but her expenses have increased more. [ 37 ] Ryan Anderson has access with the girls on alternate weekends, for one week during the summer, for two days at Easter, for new year’s eve in odd-numbered years and either on Christmas eve and Christmas morning or on Christmas day for the afternoon and supper, according to the Corollary Relief Order.

He and his daughters also spend other time together as agreed. [ 38 ] Neither parent isolated the girls’ costs in his or her Statement of Expenses, but it’s clear from a comparison of them that most of the girls’ costs are paid by Ms. Anderson. Item Ms. Anderson’s expense Mr. Anderson’s expense Food 600.00 200.00 Clothing 50.00 Hair and grooming 10.00 Extra-curricular activities 30.00 Allowance 50.00 Gifts 60.00 20.00 RESP 50.00 Insurance 150.00 Total 850.00 370.00 [ 39 ] I don’t know what the children’s actual insurance cost is. It may be less than $150.00. In his Statement of Expenses, Mr.

Anderson notes that the expense of $150.00 includes his insurance, as well. It may also include his wife because the space for a health insurance deduction on her paystub is empty. [ 40 ] The Corollary Relief Order does not require Mr. Anderson to contribute to his daughters’ extra-curricular activities. He was required to contribute to child care for Summer, but that expense was to end in July 2021. In general, Ms. Anderson is paying most of the girls’ costs. [ 41 ] At the end of their marriage, Ms. Anderson was disadvantaged by her role as a parent and its impact on her employment.

She has worked hard to overcome that disadvantage, increasing the gross income of her business in each of the past three years. She has invested money into her business, creating a studio in her home. This expense should help her further expand her business, while it allows her to care for Neela and Summer without incurring child care costs. [ 42 ] Ms. Anderson is making progress in overcoming the disadvantages that faced her when her marriage ended. She has not overcome them yet.

Having regard to the objectives of a variation order, outlined in subsection 17(7) of the Divorce Act , I conclude that the amount of spousal support should not be varied. Conclusion [ 43 ] I dismiss Mr. Anderson’s variation application. _________________________ Elizabeth Jollimore, J.S.C. (F.D.) Halifax, Nova Scotia