Burns v. Burns, 2022 NSSC 162

Supreme Court of Nova Scotia (FAMILY DIVISION) Citation: Burns v. Burns , 2022 NSSC 162 Date: 20220609 Docket: Halifax No. SFHPSA-114035 Registry: Halifax Between: Terry John Burns Applicant v. Andrea Burns Respondent Library Heading Judge: The Honourable Justice Samuel Moreau Heard: October 18, 2021, in Halifax, Nova Scotia Written Decision: June 9, 2022 Subject: Spousal support

Summary: The Applicant filed a Variation Application seeking to terminate his spousal support obligation to the Respondent. Issues:

(1) Has there been a change in circumstances?

(2) Should the Applicant’s spousal support obligation be varied of terminated? Result: The Applicant did not substantiate his application to terminate his spousal support obligation to the Respondent. His application was dismissed. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Burns v. Burns , 2022 NSSC 162 Date: 20220609 Docket: Halifax No. SFHPSA-114035 Registry: Halifax Between: Terry John Burns Applicant v. Andrea Burns Respondent Judge: The Honourable Justice Samuel Moreau Heard: October 18, 2021 in Halifax, Nova Scotia Written Release: June 9, 2022

Counsel: Grant Ogilvie, counsel for the Applicant Terry Sheppard, counsel for the Respondent By the Court: Introduction [ 1 ] This decision concerns a spousal support variation application made pursuant to an Interjurisdictional Support Variation Application under the Divorce Act . [ 2 ] The Applicant, Terry John Burns filed the Application on April 29, 2021, in the originating jurisdiction, Fredericton, New Brunswick. He seeks to terminate his spousal support obligation to the Respondent, Andrea Burns, who resides within the Halifax Regional Municipality. [ 3 ] Ms.

Burns did not attorn to the jurisdiction of New Brunswick, so the matter proceeded in Halifax, Nova Scotia, by way of the Provisional Hearing process. [ 4 ] The hearing took place on October 18, 2021. Both parties were represented by legal counsel. In total 11 exhibits were tendered. Background [ 5 ] The parties met in 1989, began cohabitating in Halifax in 1990 and were married on August 7, 1993. There were two children of the marriage; the oldest born in 1995 and the youngest in 1996. [ 6 ] The parties separated on January 8, 2018, and divorced on March 15, 2020. [ 7 ] Throughout the marriage Mr.

Burns held employment with the Canadian Armed Forces (Navy) and the Royal Canadian Mounted Police (R.C.M.P.). He commenced the R.C.M.P. six month basic training course on June 2, 1996. [ 8 ] During the marriage Ms. Burns moved five times to accommodate Mr. Burns’ deployments/postings. In 1997 the parties agreed Ms. Burns would not seek employment outside the home thereby eliminating the need for daycare and providing Mr. Burns with greater flexibility in relation to his employment as an R.C.M.P. officer. [ 9 ] In 2012, Mr. Burns took a four year posting to Nunavut, Northwest Territories. Ms.

Burns and the children remained in Nova Scotia during this period. [ 10 ] Ms. Burns has held various jobs since January, 2007. Her current position is as a court liaison clerk for the R.C.M.P. in Dartmouth, Nova Scotia. Also, she has done online copy editing for a self publishing author since March, 2013. [ 11 ] The Court of Queen’s Bench of New Brunswick Family Division’s Order for Corollary Relief dated February 13, 2020, incorporates the Separation Agreement and Minutes of Settlement made between the parties on October 2, 2018. As per paragraph 8 of same agreement, Mr. Burns pays spousal support to Ms.

Burns in the amount of $1600 per month, commencing September 1, 2018 and continuing until further agreement or court order. [ 12 ] The basis of Mr. Burns’ request is his medical discharge from the R.C.M.P. effective December 9, 2020. He asks that his obligation to pay spousal support to Ms. Burns terminate as of that date. [ 13 ] Mr. Burns has re-partnered. Exhibits 7 to 10, inclusive, are in relation to Mr. Burns’ partner, Ashley Noel. Issues 1. Has there been a change in circumstances? And if so 2. Should Mr. Burns’ spousal support obligation be varied or terminated as of December 9, 2020?

Legislation [ 14 ] The following provisions of the Divorce Act are relevant to this proceeding: 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; Factors for spousal support order

(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration. Objectives of variation order varying spousal support order

(7) A variation order varying a spousal support order should

(

a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown; (

b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and aboveany obligation for the support of any child of the marriage; (

c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and (

d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time. Change in Circumstances [15] Before considering Mr. Burns’ request to terminate his spousal support obligation, I must first be satisfied that there has been achange in the condition, means, needs or other circumstances of either party since the making of the Order for Corollary Relief datedFebruary 13, 2020. [16] In Daigle v.

Daigle, 2013 NSSC 205, Justice Jollimore provides a helpful synopsis of applicable caselaw: [9] Subsection 17(4.1) of the Divorce Act [10] The provisions of the Corollary Relief Judgment relating to Mr. Daigle’s overtime and the division of his pension arethe only specific references the Corollary Relief Judgment makes to its variation. Regardless, pursuant to paragraph 41 of the majorityreasons in L.M.P. v. L.S., 2011 SCC 64, I still have jurisdiction under

section 17 of the Divorce Act, R.S.C. 1985 (2nd Supp), c. 3, toconsider a variation application. [11] My authority to vary the spousal support provisions of the Corollary Relief Judgment exists only where therequirements of subsection 17(4.1) of the Divorce Act are met.

This subsection provides that before I vary a spousal support order I shallsatisfy myself that there’s been a change “in the condition, means, needs or other circumstances of either former spouse” which hasoccurred since the making of the spousal support order sought to be varied. [12] In Willick, (SCC) Justice Sopinka wrote the reasons for the majority of the Supreme Court. Atparagraph 20 of those reasons he described the test: [13] 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 thisis that 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 for avariation. [14] 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 be applicable to cases involving the variation of spousal support: JusticeSopinka says so at paragraph 73 of the majority reasons and Justice L’Heureux-Dubé says so at paragraphs 49 to 51 of the minorityreasons. [15] According to the Supreme Court in G. (L.) v. B. (G.), if the parties foresaw or ought to haveforeseen the new circumstances, the required change has not occurred. In G. (L.) v.

B. (G.), , the Supreme Court upheldthe trial judge’s decision that there was no material change in circumstance where the former wife was now cohabiting with the personshe had been “seeing” when she and her former husband reached their agreement. [16] More recently, in Miglin, 2003 SCC 24, the majority wrote, at paragraph 88: 1. We note that it is unlikely that the court will be persuaded to disregard the agreement in its entirety but for a significant changein the parties’ circumstances from what could reasonably be anticipated at the time of negotiation.

Although the change need notbe “radically unforeseen”, and the applicant need not demonstrate a causal connection to the marriage, the applicant must neverthelessclearly show that, in light of the new circumstances, the terms of the agreement no longer reflect the parties’ intentions at the time ofexecution and the objectives of the [Divorce] Act.

Accordingly, it will be necessary to show that these new circumstances were notreasonably anticipated by the parties, and have led to a situation that cannot be condoned. [17] In addition to the requirement that the change be one which was not reasonably anticipated by the parties, thechange must have other qualities. In P.M B. v. M.L.B., 2010 NBCA 5 at paragraph 2, Justice Robertson said that, “As a generalproposition, the court will be asking whether the change was significant and long-lasting; whether it was real and not one of choice.” The Nova Scotia Court of 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 by the style of cause under which it had earlier been reported. [18] The burden of proof is Mr. Daigle’s. [17] Mr. Burns submits he was medically discharged from the R.C.M.P. effective December 9, 2021, as he suffers from post-traumatic stress disorder (P.T.S.D.) resulting from his career therein. He says his retirement from the R.C.M.P. was not voluntary and hisincome has reduced significantly. [18] In support of his P.T.S.D. diagnosis Mr.

Burns provides the following documents: Court Exhibit 2; Royal Canadian MountedPolice Discharge Request (page 1 of 2. I note page 2 of this document was not provided); Royal Canadian Mounted Police MedicalCertificate ( page 1 of 1); and correspondence from Shelly D. Dupont, Supt., North-East District, J Division dated September 29, 2020,stating that Mr. Burns “is taking a discharge due to medical/physical disability; as a result, he would not be able to be considered for re-hire as a reservist for any operational function. Should his situation improve, it can be re-assessed at that time.”

[19] I find Mr. Burns’ medical discharge from the R.C.M.P. constitutes a change in circumstances as contemplated by thelegislation and jurisprudence. Analysis [20] I must now consider whether Mr. Burns’ spousal support obligation to Ms. Burns should be varied or terminated as ofDecember 9, 2020. Mr. Burns says that his retirement from the R.C.M.P. has resulted in his income being reduced to a level at or belowthat of Ms. Burns. [21] The parties do not agree as to the quantum of Mr. Burns’ current income. A significant portion of Counsels’ written and oralsubmissions were devoted to this topic. Counsel for Ms.

Burns asserts that: • Mr. Burns was not straight forward in providing his financial disclosure; • Mr. Burns misrepresented his pension income on Form I included in his ISO Application by approximately $20,000.00 ;and • It is incumbent on Mr. Burns to explain why he is not in receipt of disability benefits from the R.C.M.P. [22] On September 10, 2021, this Court issued an Order to Disclose, (Court Exhibit 11) ordering Mr. Burns to disclosure thefollowing: (

a) a copy of his 2020 Income tax return, (

b) a copy of his Great West Life disability income statement; (

c) copies of Ashley Noel’s 2018, 2019, and 2020 Income Tax returns along with two recent consecutive paystubs. Correspondence from Mr. Burns’ counsel dated October 12, 2021, provided the Court with the requested information. [23] Form I included in Mr.

Burns’ ISO Application indicates the following (with exception of the year, 2020) with respect to hisincome: • 2017 (Line 150) = $131,210.93 • 2018 (Line 150) = $128,997 • 2019 (Line 150) = $114,289 • 2020 (Line 150) = $180,428.15 (Disclosed as part of Counsel’s correspondence dated October 12, 2021) • 2021 ( a total income approximated to be $74,796 consisting of disability insurance in the amount of $26,304 and pensionincome in the amount of $48,492) [24] The quantum of income for the year, 2021, approximated in Form I is not consistent with paragraph 26 of Court Exhibit 2, (Mr.

Burns’ Affidavit sworn February 3rd, 2021). As per Court Exhibit 2, I consider a more accurate approximation of Mr. Burns’pension income for 2021 to be in the amount of $68,342.76. [25] At paragraph 27 of Court Exhibit 2 Mr. Burns indicates his disability benefits are tax free. The pertinent case authorities directsthat tax free income in circumstances such as are present in this case be grossed up. Darlington v. Moore 2014 NSSC 358, Piasecki v.Piasecki, 2015 NSSC 210. [26] When grossed up the income from Mr. Burns’ disability benefits increases to $43,837.

This amount added to his pensionbenefit results in an approximate income of $112,179.76 for the year, 2021. [27] I am satisfied a fair and accurate calculation and approximation of Mr. Burns’ income for the year, 2021, is $112,179.76. Ms. Burns’ on going claim for Spousal Support [28] In Wells v. King, 2015 NSSC 232 at paragraphs 35 and 36, Justice Jollimore reviews the factors considered in spousal supportclaims: [35] In Bracklow, at paragraph 21, then-Justice McLachlin made clear that the presumption of mutual support whichexists during a marriage “no longer applies” once the marriage has ended.

She identified three bases for spousal support: contractual orconsensual; compensatory; and non-compensatory. Contractual support reflects an explicit or implicit agreement that one spousesupports the other, while compensatory support considers the roles of the spouses in the family and the advantages or disadvantagesconferred by these.

Non-compensatory support looks to a spouse’s “actual ability to fend for himself or herself and the effort that hasbeen made to do so”, according to Justice McLachlin at paragraph 40 in Bracklow, . [36] An entitlement to compensatory support may be established where a spouse’s ability to achieve self-sufficiency has beencompromised by family commitments or where one spouse conferred a substantial career advantage on the other. [29] It is undisputed that Ms. Burns’ entitlement to spousal support from Mr. Burns is grounded in a compensatory claim.

Thecircumstances arising from the marriage and separation support this determination.

[30] This was a 25 year marriage. The parties cohabitated for approximately three years before getting married. During the marriageMs. Burns relocated on five occasions to accommodate Mr. Burns’ career. She was not employed outside of the home for a 10 yearperiod. [31] Ms. Burns was the children’s primary care giver throughout the marriage. From 2012 to 2016, Mr. Burns was posted inNunavut, Northwest territories, while Ms. Burns maintained care of the children and home in Nova Scotia. [32] I am satisfied the evidence demonstrates Ms.

Burns suffered and still suffers economic hardship as a result of the prioritizationof Mr. Burns’ career. I am also satisfied Ms. Burns has a lower standard of living to that of Mr. Burns. [33] In Chutter v. Chutter 2008 BCCA 507, Justice Rowles of the British Columbia Court of Appeal provides a very helpful reviewof the seminal case authorities and in particular an exploration of the compensatory and non-compensatory grounds.

At paragraph 50Justice Rowles writes: [50] Compensatory support is intended to provide redress to the recipient spouse for economic disadvantage arising from themarriage or the conferral of an economic advantage upon the other spouse. The compensatory support principles are rooted in the“independent” model of marriage, in which each spouse is seen to retain economic autonomy in the union, and is entitled to receivecompensation for losses caused by the marriage or breakup of the marriage which would not have been suffered otherwise (Bracklow, atparas. 24, 41).

The compensatory basis for relief recognizes that sacrifices made by a recipient spouse in assuming primary childcareand household responsibilities often result in a lower earning potential and fewer future prospects of financial success (Moge, at 861-863;Bracklow, at para. 39). In Moge, the Supreme Court of Canada observed, at 867-868: [34] Ms. Burns has taken the steps necessary in attempting to achieve self sufficiency.

Court Exhibit 4 confirms her annual incomefor the years 2018 to the present: • 2018 - $47,294.75 • 2019 - $73,912 • 2020 - $71, 700 • 2021 - $56, 257 (approximated) [35] However, as confirmed by the sum of the evidence, including, but not limited to the circumstances and length of the marriageand application of the principles enunciated in the case law, I find that Ms. Burns’ claim for spousal support from Mr. Burns oncompensatory grounds has not been satisfied and is ongoing. [36] I find the sacrifices made by Ms.

Burns during the marriage was to the detriment of her career, post separation earning potentialand has placed her in a less advanced economic circumstance. Other employment [37] While the evidence provided is sufficient to establish that Mr. Burns is currently no longer able to be employed as an R.C.M.P.officer, it does not substantiate his capability of holding employment in other occupations. I have no basis to question the medicalevidence provided, however I am without sufficient and cogent evidence to form the conclusion and make a finding that Mr. Burnscannot hold other forms of employment.

Double Recovery [38] Paragraph 5(

i) of the October 2, 2018, Separation Agreement and Minutes of Settlement provides that the parties respective pensions earned during the period August 1st, 1990 to January 7, 2018 be divided equally. Ms. Burns received $543,000.00 from Mr.Burns’ pension and Mr. Burns received $323.46 from Ms. Burns’ pension. Counsel for Mr. Burns argues that I should considerapproximately one half of Mr. Burns’ pension income for spousal support purposes as his pension has already be divided. [39] Counsel for Mr. Burns references the oft cited case Boston v.

Boston [2011] 2 S.C.R. 413 and also the decision of AssociateChief Justice Patrick Duncan, cited as Lucas v. Lucas 2019 NSSC 260 , [2019] N.S.J. No. 381, 2019 N.S.S.C. 260. I amsatisfied that A.C.J. Duncan’s decision in Lucas v. Lucas supra, can be distinguished from the present case as the spousal support claimin the former was of a non-compensatory nature. Also the parties in Lucas v. Lucas supra, had no children. [40] Counsel for Ms.

Burns estimates there is approximately 27 months of unequalised pension income not yet subject to divisionbetween the parties. [41] I acknowledge the precepts enunciated by the Supreme Court in Boston v. Boston supra, notably that where practicable Ishould focus on that portion of Mr. Burns’ income that has not been subject to division. [42] The Court in Boston v. Boston supra, also affirms that in some circumstances double recovery cannot always be avoided. Atparagraph 65 Justice Major states: 65 Despite these general rules, double recovery cannot always be avoided.

In certain circumstances, a pension which has previouslybeen equalized can also be viewed as a maintenance asset. Double recovery may be permitted where the payor spouse has the ability topay, where the payee spouse has made a reasonable effort to use the equalized assets in an income-producing way and, despite this, aneconomic hardship from the marriage or its breakdown persists. Double recovery may also be permitted in spousal supportorders/agreements based mainly on need as opposed to compensation, which is not the case in this appeal.

[43] In Chutter v. Chutter supra, Justice Rowles commentary at paragraphs 79 to 82, inclusive, is helpful to this discussion: [79] In my view, the trial judge’s emphasis on his finding that the assets the appellant received in the division of property canprovide her with a standard of living comparable to that which she enjoyed during the marriage overlooks the principles underlyingcompensatory support where one spouse has been disadvantaged by the marriage or its breakdown relative to the other spouse.

As thisCourt held in Tedham, at para. 60, a spousal support award based on compensatory principles should continue until compensation isachieved, even if the recipient spouse has achieved a degree of self-sufficiency. In arriving at that conclusion, this Court cited Allaire, inwhich the Ontario Court of Appeal rejected the husband’s argument that any disadvantages flowing from the marriage must defer to thefact that the wife, at the time of trial, was nevertheless able to earn a reasonable income (para. 21). That opinion was echoed by thisCourt in Beese v. Beese, 2008 BCCA 396.

In Beese, the wife was awarded compensatory spousal support for the economic disadvantageshe had suffered as a result of the marriage, notwithstanding the fact that following the separation she had been living with, andsupported by, another partner and that, as of the date of trial, she was fully employed and earning an income not substantially less thanthat of the husband. [80] Generally, the case authorities support the view that even in the context of high asset cases such as this one, entitlement tospousal support is not precluded: Metzner v.

Metzner (1997), (BC CA), 28 R.F.L. (4th) 166, 34 B.C.L.R. (3d) 314(C.A.); Francis v. Baker; R. v. R. (2002), (ON CA), 58 O.R. (3d) 656, 24 R.F.L. (5th) 96 (C.A.); Brown v.Rae, 2001 ABQB 809, 24 R.F.L. (5th) 293; Tauber v. Tauber (2001), (ON SC), 203 D.L.R. (4th) 168, 18 R.F.L.(5th) 384 (Ont. Sup. Ct.), aff’d (2003), (ON CA), 64 O.R. (3d) 229, 34 R.F.L. (5th) 450 (C.A.); Macdonald v.Macdonald, 2005 BCCA 23, 10 R.F.L. (6th) 423; Spiers v. Spiers, 2003 ABQB 830, 48 R.F.L. (5th) 198; Martin v. Martin (2004), (ON SC), 12 R.F.L. (6th) 415, [2004] O.T.C. 1139 (Sup.

Ct.), aff’d (2006), (ON CA), 81 O.R. (3d)503, 40 R.F.L. (6th) 32 (C.A.); Greither v. Greither, 2004 BCSC 1183, 10 R.F.L. (6th) 338, aff’d 2005 BCCA 550, 22 R.F.L. (6th)10; Modry v. Modry, 2005 ABQB 262, 375 A.R. 198; and Hodgkinson v. Hodgkinson. For a

summary of these cases, as well as anumber of high asset cases in which the court has not awarded spousal support, see Lawrence A. Kahn and Sarah R. Picciotto, “AreThere Cracks in the Glass Ceiling?: A Survey of Spousal Support Awards in High-asset Cases since Moge” Continuing Legal EducationSociety of B.C. (Sept. 2006). [81] In Macdonald, the wife’s compensatory spousal support claim was not barred by the fact that she had received a large assetaward upon equal division of family property. Each party received approximately $4,000,000 at trial.

The wife was the primarycaregiver for the parties’ three children throughout their 11-year marriage and the husband earned approximately $2,500,000 per year atthe time of the trial. The trial judge awarded the wife lump sum spousal support in the amount of $750,000. On appeal, this Courtdismissed the husband’s appeal of the spousal support award, stating at para. 17: [17] On the facts of this case, the compensatory loss-based entitlement required the greatest emphasis, though there was somerequirement for consideration of the need for retraining. Mrs.

Macdonald's economic loss arose not so much from entry into themarriage but from the role she played throughout the marriage and from the marriage breakdown itself. Throughout the marriage Mrs.Macdonald looked after the children and the home and created an environment in which Mr. Macdonald was free to pursue his career, ashe did with diligence and very good effect. At the end of the marriage the breakdown cut Mrs. Macdonald off from Mr.

Macdonald'svery accomplished income earning skills demonstrated by his ability to save over $4,000,000, after tax and legal fees, in the two and onehalf years between separation and trial. That lost financial stream could have provided for Mrs. Macdonald, as it may be expected toprovide for Mr.

Macdonald in the future, a wide variety of economic advantages including sufficient leisure to pursue intellectual andartistic interests in any part of the world. [82] Applying the reasoning in the jurisprudence to which I have referred, I am of the view that the appellant is entitled tocompensatory spousal support on the basis that she has been economically disadvantaged and the respondent advantaged by the marriageand its breakdown. The appellant’s role in the marriage reflected the parties’ joint decision that her career would be secondary to therespondent’s and secondary to her role as wife and mother.

As a consequence of their respective roles in the marriage, the appellant’searning capacity has been negatively affected, and conversely, the respondent’s earning capacity has been enhanced. In cases such asthis, the courts have recognized that the fact that the wife continues to earn a reasonable income post-separation does not disentitle her tospousal support (Myers; Francis; Allaire). Similarly, the fact that the appellant has received substantial assets does not of itself operateto deny her claim to spousal support (Macdonald).

The respondent received roughly the same value in assets, and the asset division didnot take into account the question of entitlement to spousal support. [44] In Flieger v. Adams, 2012 NBCA 39, the Court addresses the issue of double recovery and directs that “the burden rests uponthe party claiming “double-dipping” to prove the specifics of the pension division and to allocate the payor’s current income”. Mr.Burns has not satisfied the second part of that test.

At paragraph 15 the Court provides a synopsis of case authorities which include theobjectives of a spousal support variation order under the Divorce Act as per section 17(7). As paragraphs 15 and 16 the Court states: [15] The motion judge then considered the caselaw: in particular, the relevant principles as enunciated in themajority opinion in Boston and the objectives of a spousal support variation order under the Divorce Act. She relied on the conceptsfound in Gallant v. Gallant, 2002 NBQB 180, 250 N.B.R. (2d) 380, per Wooder J.; Meiklejohn v. Meiklejohn, (ONCA), [2001] O.J.

No. 3911 (C.A.) (QL), per Rosenberg J.A.; and Beninger v. Beninger, 2007 BCCA 619, [2007] B.C.J. No. 2657 (QL),per Prowse J.A.

I summarize them as follows: where any “economic hardship from the marriage or its breakdown” persists, the award ofspousal support on a variation application must give effect to the objectives of spousal support in s.17(7) of the Act; where thesatisfaction of the objectives in s. 17(7) of the Act can only be achieved by “double dipping”, then the practice is, and should be,condoned; the spousal support award must include a significant compensatory factor arising from the length of the marriage, the fact thatthe spouse gave up a career to raise children, and a significant needs-based component, taking into account the relative means and needsof the parties.

It should also attempt to adjust to some degree for the disparity in the standards of living of the parties, taking into accountthe standard which they enjoyed during the marriage.

[16] In this case, the motion judge applied the principles to the facts and, in so doing, found this case was an exception to the rule in Boston because the spousal support order was based on need, as opposed to compensation, and the respondent continued to suffer economic hardship from the breakdown of the marriage. I would not give effect to the ground of appeal based upon alleged double recovery. [ 45 ] I take authority from the above noted jurisprudence. I am satisfied the circumstances present establish an exception to the double recovery principle affirmed in Boston v. Boston supra. Ms.

Burns has an ongoing entitlement to spousal support from Mr. Burns on a compensatory basis. She has taken reasonable steps towards self sufficiency, however she still suffers economic hardship from the dissolution of the marriage. Ms. Burns’ roles and responsibilities during the marriage precluded her from having the opportunities to contribute to and/or accumulate assets in the amount or similar to the amount accumulated by Mr. Burns. He has re-partnered and has the ability to benefit from his partner’s income. The evidence establishes Mr. Burns has the means to continue to pay spousal support to Ms.

Burns as ordered. I am satisfied she has demonstrated the need for on going support. Findings [ 46 ] In

summary, my findings are as follows: • that there has been a change in circumstances occasioned by Mr. Burns’ medical discharge from the R.C.M.P. • that a fair and accurate approximation of Mr. Burns’ income for 2021 is $112,179.76. • that Ms. Burns’ entitlement to spousal support from Mr. Burns on a compensatory basis is ongoing. • that Ms. Burns suffers economic hardship as a result of the prioritization of Mr. Burns’ career and subsequent dissolution of the marriage. • That Ms. Burns has demonstrated the need for ongoing spousal support form Mr. Burns. • that Ms.

Burns has a lower standard of living to that of Mr. Burns. • that Ms. Burns has taken reasonable steps to attempt to achieve self sufficiency. • that Ms. Burns’ roles and responsibilities in the marriage precluded her from having the opportunities to contribute to and/or accumulate assets in the amount or similar to the amount accumulated by Mr. Burns. • that the circumstances in this case establish an exception to the double recovery principle as enunciated in Boston v. Boston supra. • the evidence does not support a finding that Mr. Burns is incapable of holding other types of employment. • Mr.

Burns has a continuing ability to pay spousal support to Ms. Burns as per the February 13, 2020, Order for Corollary Relief. Conclusion [ 47 ] In Volcko v. Volcko, 2019 NSSC 203 , Justice Beaton found that the payor had established a change of circumstance as a result of a reduction in his income, but also found the reduction did not necessitate a change in the quantum of spousal support. [ 48 ] Our Court of Appeal in Volcko v. Volcko, 2020 NSCA 68 upheld Justice Beaton’s decision. At paragraph 36 Justice Bourgeois states: [36] In my view, Mr.

Volcko has failed to establish appellate intervention is warranted and, in particular, that the hearing judge erred in law by declining to vary or terminate the quantum of spousal support set by this Court in 2015 either immediately or as a set date in the future. I am also satisfied a continuation of support at the rate of $20,000 per month does not amount to a patent injustice. In reaching these conclusions, I make the following observations: • Contrary to Mr. Volcko’s assertion, the hearing judge’s findings on each factor in s. 17(7) of the Act were not “in favour of Mr.

Volcko’s application for a decrease in support”. In acknowledging Ms. Volcko’s continuing compensatory claim, the hearing judge recognized she continued to suffer the economic consequences of setting aside her career opportunities to support Mr. Volcko’s professional efforts. This of course also included the parties’ joint decision that Ms. Volcko would remove herself from the workforce to undertake the primary responsibility for their children. These considerations, reflected in s. 17(7)(

a) and (b), weighed in favour of Ms. Volcko’s continuing support claim, not against it; • The hearing judge’s determination that the parties presently enjoyed comparable lifestyles engaged s. 17(7)(c). Given the nature of the compensatory claim and the goal of achieving relatively similar standards of living between spouses post-separation, the similarity of lifestyles was indicative that the current quantum of support was achieving that goal; • The hearing judge gave full consideration to the promotion of self-sufficiency.

It is, however, just one factor to be considered along with the others set out in s. 17(7). It is not the predominant factor, nor is it necessarily determinative. The relative weight afforded to the various factors will vary depending on the nature of the evidence before a hearing judge. Absent an error, appellate courts should not engage in a re-weighing of the factors; • The finding of a material change in Mr. Volcko’s income did not necessitate a variation of the support order. The hearing judge found Mr. Volcko had a continuing ability to pay support as ordered.

The record demonstrates this conclusion was available to the hearing judge based upon the detailed financial information before her. She also noted that since this Court set the quantum of support

in 2015, Mr. Volcko had been relieved of his requirement to financially support his daughter. These were appropriate considerations in determining whether, notwithstanding a drop in his income, the quantum of support ought to remain unchanged; and • In 2015, this Court determined support of $20,000 per month was appropriate. At that time, the Court understood Mr. Volcko’s recent income to be $1,282,936 in 2011, $1,520,976 in 2012, and “at least” $1,248,756 in 2013. Applying an averaging approach demonstrates an income of $1,350,889. On the variation application, the hearing judge concluded Mr.

Volcko’s averaged income for the prior three years was $1,273,581. Although clearly a decrease from the level of income noted by the Court in 2015, it was not as marked as Mr. Volcko had argued when seeking a downward variation. [ 49 ] In the Analysis

section of this decision, I considered and addressed the objectives of section 17(7) of the Divorce Act . [ 50 ] I have carefully reviewed the evidence, relevant legislation and case authorities. I find that Mr. Burns has not substantiated his application to terminate or vary his spousal support obligation to Ms. Burns as per the February 13, 2020, Order for Corollary Relief. Mr. Burns’ Variation Application is dismissed. [ 51 ] Counsel for the Respondent shall draft the Order. [ 52 ] Written submissions as to the issue of costs may be made subsequent to the issuance of the Order. __________________________ Samuel C. G. Moreau