DEBORAH JEAN SIHLE MPOFU Petitioner - v. -, 2023 SKKB 192

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 192 Date: 2023 09 18 Docket: DIV-SA-00393-2017 Judicial Centre: Saskatoon, Family Law Division ___________________________________________________________________________ BETWEEN: DEBORAH JEAN SIHLE MPOFU Petitioner - and - CHRISTOPHER MPOFU Respondent Counsel: Leslie G. Tallis for the petitioner Siobhan H. Morgan for the respondent ___________________________________________________________________________ JUDGMENT GOEBEL J.

September 18, 2023 ___________________________________________________________________________ OVERVIEW [ 1 ] The parties married in May 1986 and separated 30 years later in June 2016. During their marriage they had three children, completed their post-secondary studies, attained professional designations, relocated internationally and found success working full time in their careers of choice.

They are intelligent and high-functioning people who have come to the point in their lives when they are turning their attention towards retirement. [ 2 ] When they separated in 2016, both parties were employed by Saskatchewan Health Authority – the husband as a pediatric oncologist and the wife as a midwife. The husband moved out of the home but continued to pay the expenses associated with that property. [ 3 ] In 2017, the wife commenced a legal proceeding, and the parties began to exchange information and engage in negotiations.

In October 2019, an interim support order was made directing the husband to pay $10,000.00 per month in spousal support. There was no debate that the wife was entitled to interim spousal support given a significant discrepancy in their reported incomes. [ 4 ] In February 2020, the parties resolved all outstanding legal matters at a pre-trial conference and signed detailed minutes of settlement. On May 28, 2020, the court granted a consent divorce judgment that incorporated the terms of the parties’ settlement respecting spousal support.

That judgment required the husband to continue to pay $10,000.00 per month in spousal support in addition to a lump sum of $62,460.00 reflecting retroactive spousal support. There was no set duration however the judgment provided: 4. Should either party retires [ sic ] in the future, such shall constitute a material change of circumstance. This is without prejudice to the ability of either party to argue that the retiring party “unreasonably” retired. [ 5 ] The husband retired on December 31, 2022, after a professional career spanning 38 years.

A few months earlier, he provided written notice to the wife of his intention to retire and requested that spousal support terminate on January 1, 2023. The wife rejected his proposal. After a few months of negotiations, the husband brought an application to vary the judgment, asking that spousal support be terminated. [ 6 ] Having reviewed the evidence before me and the submissions of counsel, I find that the husband’s retirement is reasonable and constitutes a material change in circumstances.

Moreover, I find that the non-compensatory and compensatory objectives grounding the original support award have been satisfied and that the wife does not have an ongoing entitlement to spousal support. The husband’s obligation to pay ongoing spousal support shall terminate with the last payment due on March 1, 2023. THE LEGAL FRAMEWORK [ 7 ] The father brings his application pursuant to s. 17 of the Divorce Act , RSC 1985, c 3 (2d Supp), the relevant

portions of which provide as follows: 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; …

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

(6) In making a variation order, the court shall not take into consideration any conduct that under this Act could not have beenconsidered in making the order in respect of which the variation order is sought. …

(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. [8]

Section 17 has long been held to mandate a two-part test: L.M.P. v L.S., 2011 SCC 64, [2011] 3 SCR 775;Hickey v Hickey, (SCC), [1999] 2 SCR 518; and Willick v Willick, (SCC), [1994] 3 SCR 670. Thethreshold test is focused on whether there has been a material change in circumstances since the original judgment was granted(s. 17(4.1)). If not, the inquiry is at an end.

If the first stage has been met, the second stage considers the appropriate outcome taking intoaccount the legal principles and objectives in play (s. 17(7)). [9] When a retirement is the sole basis upon which an applicant seeks to vary a spousal support order, thethreshold analysis is often focused on whether the retirement was “reasonable”.

A myriad of factors inform this determination includingthe age of the retiring party, whether the retirement was voluntary or forced, the length of the marriage, the length of time that thesupport order has been in play, what was known at the date of the order, evidence relating to the payor spouse’s need to retire includingcompromised physical and/or mental health, the nature of the payor spouse’s work, whether the recipient spouse has also retired andwhether a fair warning was given of the plan to retire to the recipient spouse. [10] Where the retirement is “early”, voluntary and/or motivated by a desire to avoid paying support, it may justifyan imputation of income either at pre-retirement levels or otherwise.

In that event, it may follow that the threshold test has not been met(there being no significant change in the payor spouse’s means), and the application should be dismissed. [11] Even where the retirement is determined to be reasonable and reflects a material change in the payor’s ability topay support, it does not automatically follow that the spousal support obligation will be varied or terminated as of the retirement date.Instead, the court will move to the second stage of analysis.

At this stage, the court will consider whether the original objectives of thespousal support award have been met, whether there is an ongoing need and, if so, whether the payor spouse retains the ability to pay.The impact of any property equalization and principles relating to “double dipping” also factor into this determination. [12] Finally, while a chambers judge has the jurisdiction to vary a final judgment based solely on affidavit evidence,where the evidentiary record is sparse on material points or where the affidavit evidence is largely inadmissible or contradictory, thematter is unlikely to be concluded in chambers: Zettl v Spence, 2016 SKCA 97 at para 60, Koback v Koback, 2013 SKCA 91, 42 RFL(7th) 277; Bromm v Bromm, 2010 SKCA 149 at para 16, 91 RFL (6th) 268; and Bradley v Zaba (1996), (SK CA), 18RFL (4th) 1 (Sask CA).

As recently held by the Court of Appeal in Stromberg v Olafson, 2023 SKCA 67: [115] … Hryniak [2014 SCC 7, [2014] 1 SCR 87] was not an invitation to sacrifice fairness – the foundational consideration that hasalways informed the cautious approach to the resolution of disputes based on affidavit evidence – to efficiency.

Proportionality nevercalls for a court to lose track of the principal goal, which is a fair process that results in a just adjudication of the dispute. [13] In the event that a fair and just determination cannot be made on affidavit evidence, the court must considerwhether an issue, or the entire matter, should be directed to a viva voce hearing, a pre-trial conference and/or a trial, taking into accountthe issues in dispute and principles of proportionality: T.C. v A.E., 2021 SKCA 79 at para 31; and McCorriston v Hunter, 2019 SKCA106, 33 RFL (8th) 310. [14] In this instance, counsel for both parties strongly prefer that the court determine the matters in chambers andsubmit that the court has sufficient uncontroverted evidence to fairly determine the disputed issues.

ISSUES [15] The issues are: 1. Does the husband’s retirement constitute a material change in circumstances? 2. If so, does the wife have an ongoing entitlement to spousal support? ANALYSIS 1. Does the husband’s retirement constitute a material change in circumstances? [16] The 2020 spousal support judgment explicitly contemplates stage one of the two-part test by deeming that theretirement of either party “shall constitute a material change of circumstance”. The judgment then goes further to qualify that thereasonableness of the retirement remains a “live issue” for debate.

In so doing, the provision does not fully determine the threshold testand deliberately focuses the analysis on the reasonableness of the husband’s retirement. [17] The husband argues that his decision to retire at the age of 63 was reasonable and, as a result of same, hisincome has reduced significantly such that he is relying solely upon his previously divided capital assets for his support. [18] The wife does not disagree that the husband’s income has materially decreased since his retirement but arguesthat his voluntary retirement before the age of 65 is prime facie “unreasonable” and should not ground a variation of the spousal supportaward.

She asks that his application be dismissed as premature. In the alternative, she argues that income be imputed to the husband athis pre-retirement income level for two additional years. [19] There are a number of recent appellate cases that have considered the reasonableness of a payor spouse’sretirement and its impact on a spousal support award. [20] In Hague v Hague, 2022 BCCA 325, the parties had been together for 35 years and had four children. Duringthe marriage, the husband was the primary income earner and the wife was primarily responsible for childcare and managing thehousehold.

The husband retired in 2021 at age 65. The hearing judge found, and the Court of Appeal agreed, that while the retirementwas voluntary (he was not ill or disabled or been dismissed or laid off), it was nonetheless reasonable given his age and each party’srespective financial positions. [21] In a similar case, Bone v Bone, 2020 ABCA 323, 451 DLR (4th) 337 [Bone], the parties separated after 29 yearsof marriage, during which they had four children. The wife was a fulltime homemaker and, by the date of separation, had not workedoutside of the home in over 40 years.

At the conclusion of the marriage, the wife retained the family home, received an equalizationpayment in the approximate sum of $480,000 and indefinite spousal support of $8,000 per month. The hearing judge found that thehusband’s decision to retire at the age of 73 was reasonable and constituted a material change in circumstances. [22] In Savage v Savage, 2019 ONCA 984, the parties were married for approximately 25 years and had threechildren together.

They separated in 2012, and an order was granted in 2015 providing that either party could seek a change in spousalsupport based on material change, whether the change was “foreseen or foreseeable, unforeseen or unforeseeable.” The husband, ateacher, retired on December 31, 2017, at the age of 57 with a full pension. By that date, the wife had also retired from her public serviceposition, at age 56. The hearing judge held that the husband’s retirement was reasonable and constituted a material change.

The Court ofAppeal agreed, emphasizing that the husband’s 27-year career, and the emotional drain inherent in the teaching profession, justified hischoice to retire early. [23] The reasonableness of a payor’s retirement has also been considered by this court. In Dumalski v Dumalski(1999), (SK KB), 182 Sask R 314 (Sask QB), a husband applied to reduce spousal support upon retiring fromemployment at the age of 55.

The hearing judge dismissed the application to vary finding that while the husband’s retirement didconstitute a material change in circumstances, because it was voluntary, the disadvantages arising from same should not be further borneby the wife. The Court of Appeal (Dumalski v Dumalski, 2000 SKCA 51, 199 Sask R 2) disagreed.

The appellate court overturned thefinding and reduced the quantum of support payable, given the impact of the retirement on the financial circumstances of both parties. [24] In the context of a child support award, this court in Stockton v Simoneau, 2015 SKQB 304, found that aparent’s voluntary retirement after 36 years of employment was unreasonable, holding as follows: [13] … If a payor spouse chooses to reduce income through retirement, the basis for that choice must be carefully reviewed by acourt.

Absent a compelling reason to retire, the payor’s choice will be seen as an intentional underemployment, and incapable ofjustifying a variation of the support obligations. [25] However, in Stephen v Stephen, 2004 SKQB 386, 10 RFL (6th) 183, another child support case, a payor parent’sretirement at the age of 47 due to the cumulative effect of stress and physical ailments, was found to be reasonable.

The court held thatthe payor parent’s health concerns were a legitimate reason to retire and accepted the retirement as a material change in circumstancesjustifying a reduction in the child support payable. [26] These cases demonstrate that the determination of whether a retirement is reasonable is largely fact specific. Inthe case before me, I am satisfied that the husband’s decision to voluntarily retire at the age of 63, after a demanding and lengthy career,was reasonable.

For the last 25 years of his career, the husband’s work as a pediatric oncologist centered on the extraordinarily difficulttask of treating children diagnosed with cancer. While he was honoured to serve children and their families, the work understandablytook a significant toll. [27] Moreover, he was tasked with an onerous work

schedule requiring that he regularly work consecutive daytime

and overnight shifts to fulfill on-call responsibilities. He deposed that the onset of the pandemic in 2020 exacerbated an alreadychallenging work situation. He deposed to be suffering with general burnout and exhaustion. [28] Secondly, the husband had mental and physical reasons to support his decision to retire. He was diagnosed withdepression in 2001 and prescribed a low-dose antidepressant. He deposes, and his physician confirms, that in the year prior to hisretirement, the dosage of the medication was almost doubled to address increased symptoms.

The husband was also prescribedmedication to manage hypertension in 2021. [29] Thirdly, his plan to retire before the age of 65 had been discussed during the marriage as well as after theseparation. The husband says that he has been ready to retire for a number of years. He also says that his retirement could not have beena surprise to the wife given discussions during the marriage that he would retire at the age of 62. This is consistent with the husband’saffidavit sworn and filed with the court in 2019 wherein he states that he intends to retire at the end of 2021.

The husband says that heultimately delayed his retirement date because their youngest son was finishing up his law degree in the United States. That wascompleted in July 2021, and the husband retired on December 31, 2021. [30] The wife argues that the husband should not be allowed to retire before the age of 65 and that any retirementbefore the age of 65 should be deemed unreasonable and premature. With respect, even if the “normal” age of retirement in a particularfield of work or profession could be identified, it is only one marker of reasonableness.

Not only was the husband’s retirement motivatedby his age, it was also precipitated by a decline in his mental and physical health and the emotional toll that working with childrendiagnosed with cancer for over 25 years has had upon him, coupled with a work

schedule that involved onerous on-call demands. [31] Moreover, there is no evidence to support a finding or even an inference that the husband chose to retire early inorder to avoid spousal support payments. By the date of his retirement, the parties had divided family property equally and the husbandhad complied with any orders to pay spousal support including lump sum retroactive support. [32] In

summary, I find that the husband’s retirement at the age of 63 was reasonable. That said, this finding does notresolve the issue as to whether the husband’s spousal support obligation should be varied or terminated as of the retirement date. Evenwhere a retirement constitutes a valid material change, the court must go on to consider whether the recipient spouse has an ongoingentitlement to spousal support and, if so, what the appropriate quantum may be. 2.

Does the wife have an ongoing entitlement to spousal support? [33] The parties agree that the original spousal support order was grounded in compensatory and non-compensatoryobjectives. [34] Compensatory entitlement seeks to balance a number of factors including the duration of the marriage, theparties’ ages, the parties’ incomes and prospective incomes, the effects of property equalization (including the division of incomegenerating assets), the stages of each parties’ career, contributions to the marital standard of living, participation in householdresponsibilities and parenting obligations, and the parties’ reasonable expectations prior to separation, among others: Kolodziejski vMaximiuk, 2023 SKCA 103 at para 89; and Tyacke v Tyacke, 2021 SKCA 80, [2021] 12 WWR 628 [Tyacke].

That said, the court is notcalled upon to quantify every loss and every gain over the course of the parties’ marriage akin to formulating a loss of income award butmust focus more generally on “how the relationship impacted the standing of each of the spouses’ present and future prospects”: Tyacke,at para 93. [35] Non-compensatory entitlement acknowledges economic interdependency by addressing “needs and means”.

Todetermine if ongoing spousal support is warranted under a non-compensatory basis, a court will consider the relative incomes andstandards of living of the spouses before and after divorce, their means to satisfy reasonable living expenses and their ability to becomeself-sufficient: Russell v Russell (1999), (SK CA), 179 DLR (4th) 723 (Sask CA) at para 126, as in D.B.B. v D.M.B.,2017 SKCA 59; and Kolodziejski v Maximiuk, at para 28. [36] Here, the husband argues that the wife’s entitlement to spousal support has been satisfied by virtue of thesignificant amounts of spousal support paid to date and the equal division of significant investments set aside by the parties for theirretirement during the marriage.

He says that upon retirement, his professional income stream ended and he is now required to supporthimself from capital assets. As such, the parties are in a position of relative parity in terms of their post-retirement standard of living. Infact, as the wife has chosen to continue to work and advance her business, he claims that she is in a more favourable economic position. [37] The wife disagrees. She argues that the payment of 6.5 years of spousal support is insufficient to compensate herfor postponing her career as a midwife in order to relocate for the husband’s career.

Second, while the wife does not deny receivingone-half of the investments set aside by the parties for their retirement during the marriage, she says that the funds have depreciated andmay be insufficient to support her for the entirety of her contemplated retirement. She further claims that the husband has not providedinformation as to whether his investments similarly depreciated and speculates that he may have accumulated additional investmentsafter their settlement from which he could pay ongoing support.

In that regard, counsel for the wife points out that the husband has notserved and filed a current net worth statement. [38] In response, counsel for the husband says that he disclosed all relevant income information but chose not toprovide a net worth statement because the state of his property holdings is irrelevant and offends the principle of “double dipping” asestablished by the Supreme Court of Canada in Boston v Boston, 2001 SCC 43, [2001] 2 SCR 413 [Boston]. [39] In Boston, the Supreme Court of Canada cautioned against using income generated from a previously dividedpension fund when calculating a payor spouse’s means for the purpose of determining spousal support.

Major J. held as follows: [64] To avoid double recovery, the court should, where practicable, focus on that portion of the payor’s income and assets that havenot been part of the equalization or division of matrimonial assets when the payee spouse’s continuing need for support is shown (seeHutchison [(1998), (ON SC), 38 RFL (4th) 377], at para. 9). In this appeal, that would include the portion of the

pension that was earned following the date of separation and not included in the equalization of net family property. [40] On the other hand, the Supreme Court confirmed that while “double dipping” may appear prima facie unfair,where a recipient spouse demonstrates a continued need for non-compensatory, dependence-based support, those concerns may bemoderated, at least to the extent required to meet fundamental needs.

See also Bracklow v Bracklow, (SCC), [1999] 1SCR 420; Hubault Virgili v Virgili, 2021 NBCA 7; Bone; Nettleton v Nettleton, 2020 ONCA 753, 394 CCC (3d) 154; P.M. v S.M., 2019SKCA 111; and Napper v Napper, 2007 SKQB 212, 40 RFL (6th) 78. [41] Following this line of jurisprudence, the wife in this matter claims that she continues to have a financial need,and despite her age (three years older than the husband) and her own compromised health, she continues to work.

Her counsel argues thatthis is a reasonable basis in these circumstances to “double dip” and/or require the husband to pay support from any post-separationundivided assets. [42] There is no question that the court retains discretion to allow double dipping where it is required to meet arecipient spouse’s fundamental needs. For instance, in Bone, the wife had not worked outside of the home in over 40 years, had nomarketable skills and suffered from physical and mental disability. At the date of the hearing, she was financially destitute and had nohome nor savings.

While the court found that her entitlement had been compromised by her own lack of prudence respecting her use ofher property settlement, there was no denying that she maintained a significant financial need grounding a non-compensatory claim.Given the finding of ongoing entitlement, the question became one of quantum, and the Court of Appeal turned to principles of doubledipping and when that may be permitted. [43] Similarly, in P.M. v S.M., the Saskatchewan Court of Appeal confirmed that double dipping may be appropriatewhere the income of a payor spouse is insufficient to satisfy a recipient’s fundamental needs.

The Court summarized the analysis asfollows: [92] The law seems fairly clear that income is the first consideration when determining the ability to sustain spousal support, notcapital. Property division is traditionally dealt with upon dissolution of the marriage, with any property received post trial not beingsubject to division: see the definition of family property in s. 2(1) of The Family Property Act, SS 1997, c F-6.3.

It would seem counter tothe purpose of limiting the definition of family property in this way if the assets received post trial could be distributed in monthlyinstalments as a matter of common course. [93] Ultimately, based on my review of the jurisprudence, courts should look first to income but, if the income of the payor isinsufficient to satisfy the payee’s entitlement to spousal support, courts can then look at least to post-separation assets as a potentialsource to satisfy the payee’s entitlement (Boston at para 64, Leskun [2006 SCC 25, [2006] 1 SCR 920] at para 29, Strang [ (SCC), [1992] 2 SCR 112] at 119 and McCulloch [2013 ABQB 177] at para 91).

The determination in any given case is afact-specific discretionary exercise based on all the circumstances. [44] The starting point is determining whether the spousal support objectives grounding the original spousal supportjudgment have been satisfied or whether there is a continued need for support. Where there is no ongoing entitlement or need, the state ofthe payor’s present assets does not enter into the analysis. [45] Here, there is no debate that the wife had a compensatory and non-compensatory claim to spousal support at thetime of the parties’ separation.

However, I am satisfied that the objectives for which the spousal support award was originally made havebeen achieved and am unable to find that the wife has an ongoing financial need or a continuing entitlement to spousal support. [46] By way of background, when the parties in this matter commenced their relationship in 1984, they were residingin the United Kingdom [UK] and pursuing professional careers. The wife had a promising career in midwifery and the husband was apediatric resident.

In 1991, the parties and their children relocated to the United Arab Emirates [UAE] where the husband had beenoffered a position in pediatric oncology. As a result of this relocation, the wife had to forfeit her fulltime employment as a midwife in theUK, as well as an opportunity that may have progressed to teach at the University of Manchester. The parties remained in the UAE forsix years, during which time the wife was employed full time as a teaching assistant at a reduced income. [47] The parties agreed to relocate to Saskatchewan in 1997.

The wife says they relocated for the husband’s careerwhile the husband says it was a family decision made after they considered, and rejected, moving to Africa due to political instability.Shortly after the move, the wife secured employment at the University of Saskatchewan, again earning less than she had in her previousposition. In the coming years, she continued to advance her education.

When the opportunity became available to work as a midwife in2007, she seized it – becoming the province’s first accredited midwife. [48] The wife pursued and obtained a Ph.D. during the marriage and worked full time outside of the home during themajority of the relationship. While delayed, for the last 16 years she has enjoyed a remarkable, successful and lucrative career in herchosen field. At the date of separation, the wife was earning income in the range of $118,000 per year working for the provincial healthauthority.

After the separation, the wife quit her job with the health authority and chose to relocate to Alberta to start her own midwiferybusiness – DJS Major Midwifery Inc. In its first full year (2021), her corporation generated gross revenues exceeding $163,000.

Eventaking reasonable business expenses into account, it appears that the wife presently has the ability to earn income exceeding $130,000from her business and pension/RSP income, not including any return on the significant investments held by her holding company (in theapproximate amount of $950,000). [49] Of course, the husband has also enjoyed a very lucrative career in medicine. In the year before he retired, hisprofessional income exceeded $500,000. However, on January 1, 2023, that professional income came to an end.

In the meantime,between the separation in 2016 and the court application in 2023, the husband paid approximately $634,000 to the wife in court-orderedspousal support payments and non-taxable voluntary payments. [50] In addition, despite their significant combined income, the parties deliberately chose to live a modest lifestyleduring their relationship. They did not take lavish or frequent holidays and had no recreational vehicles or homes. They regularly met

with a financial planner and maintained a significant portion of the husband’s income in a professional corporation with a view to creating a retirement fund. That “fund”, along with all other family property, was equally divided between the spouses in 2020, with the wife receiving assets in the approximate value of $1.4 million. Of that amount, $1.15 million was received in the form of investments and cash. [ 51 ] In

summary, I find that the economic consequences of the marriage and its breakdown have been equitably shared. The economic advantage to the husband ended when he retired and the economic disadvantage to the wife was redressed by the significant support paid and the property settlement, which included a substantial retirement fund.

It is reasonable to expect that she has made prudent use of her share of the family property and support paid to date. [ 52 ] Furthermore, I am unable to find that the wife has an ongoing financial need that justifies the payment of support from post-separation assets and/or previously divided income generating assets. She has significant property holdings, a six-figure income and marginal debt. Her revenue is sufficient to meet her reasonable expenses and she continues to set aside a portion of her ongoing income for her retirement.

JUDGMENT [ 53 ] The husband’s application to vary the 2020 judgment relating to spousal support is granted. Spousal support payments shall terminate effective March 1, 2023, with the last payment due on that date. Costs are fixed at $2,000.00, payable by the wife to the husband within 90 days. “G.V. Goebel” J. G.V. GOEBEL