Townsend v Townsend, 2023 SKCA 91

Court of Appeal for Saskatchewan Docket: CACV3942 Citation: Townsend v Townsend , 2023 SKCA 91 Date: 2023-08-10 Between: Stephen Jay Townsend Appellant (Respondent) And Maryrose Ottilia Townsend Respondent (Petitioner) Before: Richards C.J.S., Leurer and McCreary JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice McCreary In concurrence: The Honourable Chief Justice Richards The Honourable Mr.

Justice Leurer On appeal from: FLD 266 of 2000, Saskatoon Appeal heard: November 17, 2022 Counsel: Anna Singer and Lauren Scharfstein for the Appellant Timothy Turple for the Respondent McCreary J.A. I. INTRODUCTION [ 1 ] When spousal support has been paid longer than the parties were married, can the duration and quantum of support paid constitute a material change of circumstance so as to justify varying an indefinite support order? That is the primary question on this appeal. [ 2 ] The parties were married in 1985 when Ms. Townsend was 36 and Mr. Townsend was 25 years old.

The marriage lasted 15 years, during which time Ms. Townsend worked only sporadically outside the home. While Ms. Townsend had two children from a previous marriage, they were independent when the parties separated in 2000, and there were no other children of the marriage. [ 3 ] Following a trial in the Court of Queen’s Bench in 2002, the trial judge granted judgment dividing the family property and awarding Ms. Townsend indefinite non-compensatory spousal support of $1,700 per month [Support Order]: Townsend v Townsend , 2002 SKQB 340 at para 97 [ Trial Judgment ].

Notably, the order for spousal support did not contain a review clause. The trial judge held that the spousal support was intended to “relieve the economic hardship [Ms. Townsend] suffered as a result of the breakdown of the marriage and also promote in so far as practicable, her economic self-sufficiency” (at para 81). At that time, Ms. Townsend was 53 years old, and Mr. Townsend was 42. [ 4 ] Mr. Townsend initially appealed the Trial Decision , but later abandoned the appeal. Thereafter, in 2003 and 2006, he brought applications to vary the Support Order, which were dismissed.

Finally, in December of 2018, he brought a new application in the Court of Queen’s Bench to terminate the spousal support obligation, arguing that there were material changes of circumstance justifying variation.

The Chambers judge dismissed the variation application: Townsend v Townsend (2021 November 24) Saskatoon, FLD 266 of 2000 (Sask QB) [ Chambers Decision ]. [ 5 ] The issue on appeal is whether the Chambers judge erred in determining that, since 2002, there have been no material changes in the parties’ needs, means and other financial circumstances to warrant a variation of the Support Order. [ 6 ] For the reasons that follow, I would dismiss the appeal. While Mr.

Townsend has been paying spousal support for longer than the parties were married, the mere fact of the duration and quantum of support he has paid does not constitute a material change in circumstances. I agree with the Chambers judge that there have been no material changes in the parties’ circumstances since trial to justify varying the Support Order. The duration and quantum of support paid does not exhaust the objectives of the Support Order in the circumstances of this case. II. PREVIOUS COURT DECISIONS [ 7 ] The Support Order required Mr. Townsend to pay Ms.

Townsend $1,700 of spousal support per month, indefinitely. In making that order, the trial judge found that Ms. Townsend had a need for spousal support and that Mr. Townsend had a commensurate ability to pay within the meaning of s. 5(1) of The Family Maintenance Act, 1997 , SS 1997, c F-6.2 [ Family Maintenance Act ]. The trial judge considered the objectives and factors under ss. 5(2) and (7) of the Act and arrived at the following findings and conclusions (see: paras 72–81 of the Trial Judgment ): (

a) Ms. Townsend was almost 36 years old at the time of the marriage, with a Grade 10 education. She was unemployed and living in subsidized housing with her two children from a prior relationship. She had no assets of consequence; (

b) Prior to the marriage, Ms. Townsend had worked for brief periods in a restaurant and as a hospital dietary aid but had given up

those jobs because their physical demands were incompatible with a medical condition. She worked occasionally in her brother’s securitybusiness; (

c) Following the marriage, Ms. Townsend seldom worked outside the home. The jobs she did take were low paying andpart-time or casual. After the parties’ separation, she did not work anywhere, nor did she attempt to find employment or to upgrade her jobskills; (

d) Mr. Townsend knew of Ms. Townsend’s medical condition and the limits it placed on her physical abilities when theymarried; (

e) Ms. Townsend was economically advantaged by the marriage. She was negatively affected by its breakdown because sherelied on Mr. Townsend for financial support. The marriage generated a pattern of dependency which continued after separation; (

f) Ms. Townsend’s medical condition did not render her incapable of working, but it limited her employment opportunities. Hermedical condition, coupled with her modest level of education and her lack of specialized training, meant that it was highly unlikely shewould ever be able to adequately provide for herself. While Ms. Townsend could contribute to her own support through low-paying work,she did not want to be employed and would not look for work or seek training; (

g) Ms. Townsend’s ability to contribute to her own support was quantified at $10,000 per annum, based on a four per cent returnon her investment and a small employment income of between $450 to $500 per month. Her needs were determined to be $24,000 peryear; and (

h) Mr. Townsend’s income at the time of trial (inclusive of commissioned income and rental income) was $71,560.98 per year,with annual expenses of $35,000.

At that time, he worked as a commissioned real estate agent, received dividend income from a privatedevelopment corporation held solely by him, and had rental income from revenue properties he controlled. [8] With respect to the indefinite duration of the Support Order, the trial judge concluded: [96] A review of the jurisprudence indicates that in situations where it is unlikely a spouse will ever achieve economic self-sufficiencyand/or in situations where the marriage has created an economic dependency, a time-limited support order should not be awarded. This isthe situation in this case.

Accordingly, I believe an indefinite order is appropriate. If either party’s circumstances change significantly it isalways open to them to bring an application for variation. … [9] When Mr. Townsend applied to the Court of Queen’s Bench for variation in 2018, he argued, as he does on this appeal, thatthe following material changes in the parties’ circumstances justified variation: (

a) Ms. Townsend is now receiving Canada Pension Plan [CPP] and Old Age Security [OAS] benefits totalling almost $10,000per year, increasing her income. Mr. Townsend’s income ($74,759 in 2018) had decreased from 2002 when adjusted for inflation. (

b) Ms. Townsend has received over $393,000 in spousal support, which has been paid for longer than the duration of themarriage. The duration and quantum of support paid exceeded the range provided for in the Spousal Support Advisory Guidelines (2008)[SSAG] and, thus, Ms. Townsend’s entitlement to spousal support on a non-compensatory basis had ended because the objectives of theSupport Order were met. [10] The Chambers judge rejected these arguments, determining that there were no material changes in circumstances to justifyvarying the Support Order. He found that Ms.

Townsend’s financial circumstances had not changed materially relative to her needs andmeans since 2002. He concluded that income of $10,000 should no longer be imputed to her because she was well past normal retirementage; the fact that she now received CPP and OAS benefits totalling $9,302 meant that her current income was not materially different thanit was when $10,000 of income was imputed to her prior to her reaching retirement age. [11] The Chambers judge similarly concluded that Mr. Townsend’s financial needs and means had not changed materially.

Hecontinued to be employed as a commissioned real estate agent and his income came from real estate commissions and rental properties henow owned with his new spouse. He remained solely in control of his development corporation but did not pay himself dividends despitecash held in the corporation of almost $400,000. The Chambers judge did not accept that Mr. Townsend’s 2018 income of almost $75,000should be adjusted for inflation, because the spousal support payments were not indexed for inflation. Further, he found thatMr.

Townsend had the ability to manipulate his income, that he split income with his new spouse, and that he did not draw upon allincome available to him. He concluded that Mr. Townsend’s net worth had increased substantially since 2002. [12] The Chambers judge rejected the argument that the passage of time and quantum of support paid constituted material changesthat justified terminating spousal support. He determined that the passage of time was not a relevant consideration to Ms.

Townsend’scircumstances, because the indefinite Support Order was based on the trial judge’s determination that it was highly unlikelyMs. Townsend would ever be able to provide adequately for herself. Thus, on these facts, the passage of time combined with the totality ofspousal support paid by Mr. Townsend did not satisfy the non-compensatory purpose of the Support Order such that it should beterminated. The Chambers judge concluded: [36] I accept that an order for indefinite spousal support order [sic] does not mean permanent support.

Further, a significant passage oftime giving rise to a question of whether the objectives of spousal support have been satisfied may constitute a material change incircumstances. However, mere passage of time is not sufficient to establish a material change in circumstances where an application isbrought to vary the terms of an indefinite order of spousal support, including where that passage of time extends beyond the suggestedduration of spousal support under the SSAG. III. ANALYSIS [13] Decisions involving support orders are owed deference on appeal.

An appellate court should intervene only where there is “anerror in principle, a significant misapprehension of the evidence or unless the award is clearly wrong” (Hickey v Hickey,

(SCC), [1999] 2 SCR 518 at para 11; see also: D.B.B. v D.M.B., 2017 SKCA 59 at para 48). [14] As I will explain, the Chambers judge did not err when he determined that there had been no material change in the parties’circumstances since 2002 that would justify a variation of the Support Order. [15] Mr. Townsend urges this Court to review whether the law in Saskatchewan “supports that there comes a time when theresponsibility to support the financial needs of a former spouse can shift from the former spouse to the state”.

In my view, such an analysismust begin with what the Legislature has directed – that an order for maintenance may only be varied where there has been a materialchange in circumstances since the order was made: see s. 10 of the Family Maintenance Act. [16] A material change is a change which, if known at the time the order was made, would likely have resulted in different terms:Willick v Willick, (SCC), [1994] 3 SCR 670; and G.(L.) v B.(G.), (SCC), [1995] 3 SCR 370 [G.(L.)].

Asthe Supreme Court noted in Willick, the “corollary to this is that if the matter which is relied on as constituting a change was known at therelevant time it cannot be relied on as the basis for variation” (at 688). [17] Subjective foreseeability is central to the material change principle: Stones v Stones, 2004 BCCA 99 at paras 15–16, 48 RFL(5th) 223. A variation application must focus on the prior order, and on any significant change in circumstance that has arisen since theorder was made. [18] Mr.

Townsend’s primary argument on appeal is that the Chambers judge erred when he concluded that the duration andquantum of spousal support paid by the date of the variation application did not constitute a material change in the parties’ circumstances.Mr. Townsend argues that, given the duration and quantum of support Ms.

Townsend has received, the objectives of the Support Orderhave been satisfied, thus constituting a material change from when the Support Order was made. [19] Respectfully, I am not persuaded by this argument. [20] By and large, Canadian courts have signalled, in relation to spousal support orders, that the passage of time alone does notamount to a material change in circumstances.

See, for example: Rondeau v Rondeau, 2011 NSCA 5 at paras 15–16, 299 NSR (2d) 244;Hess v Hamilton, 2018 ONSC 661, 5 RFL (8th) 287; Lafazanidis v Lafazanidis, 2019 ONSC 3108; Favero v Favero, 2013 ONSC 4216 atpara 171; and Droit de la famille — 142576, 2014 QCCS 4959 at para 38. This is also true with respect to child support orders. See: Grayv Wiegers, 2008 SKCA 7, 47 RFL (6th) 1 [Gray]; Savoy v Savoy, 2019 SKCA 1 at para 19; Campbell v Campbell, 2016 SKCA 39 atpara 6, [2016] 8 WWR 631; and G.S. v A.S., 2022 NLCA 32 at para 16. [21] On a related ground of appeal, Mr.

Townsend argues that the Chambers judge erred in law by drawing an analogy to Gray, acase involving a child support order, for the proposition that the passage of time, alone, does not amount to a material change in relation toa spousal support order. I do not agree. Gray is clearly relevant by analogy, as I noted above. [22] Returning to the primary issue on appeal, Mr. Townsend relies on L.M.P. v L.S., 2011 SCC 64, [2011] 3 SCR 775 [L.M.P.], forthe premise that the passage of time is a material change in circumstances. However, L.M.P. does not stand for that proposition.

While theCourt of Appeal for Quebec originally found that the passage of time constituted a material change in circumstances, that ruling wasoverturned by the Supreme Court. In its decision, the Supreme Court was primarily concerned with the issue of a spouse’s self-sufficiencyand the fact that the recipient spouse was unable to work and had never been expected to do so.

The Court did not analyze in anymeaningful way whether the passage of time, on its own, could constitute a material change in circumstances. [23] Whether the passage of time can satisfy the objectives of a spousal support order so as to constitute a material change is aseparate question. [24] Pursuant to the Family Maintenance Act, the first objective of spousal support is to recognize any economic advantage ordisadvantage to the spouses arising from the marriage.

The second objective is to relieve any economic hardship arising from thebreakdown of the marriage, while the last objective is to promote the economic self-sufficiency of the spouses within a reasonable periodof time, as far as is practicable: see s. 5(2) of the Family Maintenance Act. The legislation does not grant paramountcy to any one of theseobjectives – all three must be considered and given the weight that the circumstances require.

See: Miglin v Miglin, 2003 SCC 24, [2003]1 SCR 303 [Miglin]; L.M.P.; Bracklow v Bracklow, (SCC), [1999] 1 SCR 420 at para 35; and Moge v Moge, (SCC), [1992] 3 SCR 813 [Moge]. [25] A line of cases has developed in Ontario, although not at the appellate level, which suggests paying support over a significantperiod can raise a question about whether the objectives of the support order are satisfied so as to constitute a material change warrantingvariation. This line of jurisprudence begins with deJong v deJong, (Ont Sup Ct (Fam Div)) [deJong].

In that case, theparties – who had four adult children – had been divorced for almost 18 years. The mother had not worked since the separation. When theyoungest child completed school, the father applied to vary the child and spousal support provisions. The last variation had occurred fouryears prior and no provision for a review had been included as a term of the order.

The court stated that the father was not precluded frombringing the matter back to court for consideration, and that it must be determined whether there should, by then, have been someexpectation for independence on the part of the mother that would result in an imputation of income to her (see para 16). [26] However, deJong did not engage in a “material change in circumstances” analysis, nor did it discuss the objectives of spousalsupport at length.

Notably, the recipient spouse in that case had conceded that both child support and spousal support should end butrequested that spousal support continue for 18 months instead of terminating immediately. [27] Nearly a decade later, in Sharpe v Sharpe, 2018 ONSC 3673 [Sharpe], both spouses agreed that the passage of time constituteda material change in circumstances (see para 59). Specifically, it was conceded that payment of spousal support for the duration suggestedby the SSAG satisfied the objectives of the relevant legislation.

Given this concession, the court was not required to rule on this issue andmerely reaffirmed the position of the parties, emphasizing the link between the durations provided for in the SSAG and the objectives ofspousal support orders. [28] Thereafter, in B.D.P. v D.W.P., 2019 ONSC 949, the Ontario Superior Court issued a more definitive statement on the issue:

[71] A significant passage of time giving rise to a question of whether the objectives of spousal support have been satisfied is a material change in circumstances. In particular, the end of entitlement, as reflected in the [ SSAG ], is a material change that may give rise to an order to vary spousal support. (Footnotes omitted) [ 29 ] The court cited deJong for the first proposition, and Sharpe for the second.

With respect, I do not agree that deJong and Sharpe stand for those propositions, particularly because in both of those cases, the parties had agreed that some manner of variation was appropriate, and the material change analysis was not engaged.

In my view, B.D.P. has minimal precedential value because, as the Chambers judge noted, it conflates the legal principles applicable where a variation application is brought on the basis of a review provision with an application to vary, which requires a threshold material change. [ 30 ] In my opinion, the mere passage of time, in and of itself, cannot establish that the objectives of a spousal support order have been met.

Rather, “[t] he key question must be whether the objectives of the spousal support reflected in the original order have been satisfied, as a result of the passage of time” ( N.T. v P.T. , 2022 ONSC 5263 at para 200 ). In the circumstances of this case, the Chambers judge did not err when he determined that the objectives of the Support Order were not satisfied by the passage of time.

Let me explain. [ 31 ] As noted by the Chambers judge, it is significant that the trial judge reviewed the objectives of spousal support and the parties’ circumstances and determined that an order for indefinite support was appropriate with no provision for a review. The trial judge found that an indefinite order for spousal support was necessary because Ms. Townsend suffered economic hardship due to the marriage breakdown and because she would very likely never be self-sufficient. In other words, it was foreseen that she would always require support. Today, Ms.

Townsend has failed to achieve any level of self-sufficiency, but the trial judge already factored in her limited employment opportunities and her refusal to contribute to her own support when she settled on the quantum of spousal support and the indefinite duration of the Support Order (see paras 84 and 96). A fact that was known when a support order was made cannot later be relied upon to prove a change of circumstances justifying a variation of the order: G.(L.) at paras 49 and 73 . [ 32 ] Mr. Townsend argues that, given the passage of time, the economic hardship that Ms.

Townsend experiences is no longer caused by the breakdown of the marriage. He contends that, over time, it is Ms. Townsend’s failure to contribute to her own support and to properly manage her financial affairs that has caused economic hardship, not the marriage’s breakdown and, as a result, the objective of relieving against economic hardship caused by the marriage is no longer relevant. [ 33 ] This argument is superficially compelling but, ultimately, cannot succeed. Again, subjective foreseeability guides a consideration of material change.

We must ask: what was known at the time of the Support Order and what was foreseeable? The trial judge acknowledged that Ms. Townsend was economically advantaged by the marriage and disadvantaged by its breakdown, but she also acknowledged that the disadvantage caused by the breakdown would not be remedied by Ms. Townsend becoming self-sufficient. It was foreseen that Ms. Townsend would never be able to support herself independently. This was a stated reason for the indefinite period of support, without the inclusion of a review provision.

I note, also, that since the Supreme Court’s decision in Miglin , which followed the Support Order, the legislative objective of spousal support encouraging self-sufficiency has been de-emphasized. The Supreme Court noted in Miglin that self-sufficiency is but one of the objectives of spousal support and is an attenuated objective, in that it is only to be promoted “insofar as practicable” (at para 35, quoting Moge a t 852) .

This was similarly noted by the trial judge. [ 34 ] In conclusion on this point, the trial judge determined that an order for spousal support was necessary to relieve the economic hardship of the marriage breakdown and to promote self-sufficiency as far as doing so was practicable. She also concluded that the Support Order should be indefinite because it was unlikely Ms. Townsend would ever achieve self-sufficiency. Despite the passage of time, there has been no material change to Ms. Townsend’s economic hardship or her dependency. Thus, the objectives of the Support Order have not been satisfied. [ 35 ] Mr.

Townsend also contends that the Chambers judge erred when he determined that, even though the duration and quantum of support paid to date exceeded the range set out under the SSAG , this was not a material change in circumstances. Again, I am not persuaded by this argument. [ 36 ] The trial judge did not use the SSAG to arrive at the Support Order because the SSAG were not adopted in their final version until 2008.

However, had the SSAG applied, an indefinite order for support also would have been indicated using the “Without Child Support Formula” and the “Rule of 65” (which suggests that if a spouse’s age at the date of separation plus the number of years the spouses cohabitated equals 65 or more, an indefinite period of support is appropriate), although the duration and quantum of support that ultimately has been paid exceeds the range proposed under the SSAG . [ 37 ] Nevertheless, the difficulty with Mr. Townsend’s submission is that it presumes that Ms.

Townsend’s entitlement to spousal support has ended because it exceeds the range in the SSAG . The assertion that Ms. Townsend has experienced an “end of entitlement” confuses the requirement to establish a material change with the requirement to prove entitlement. [ 38 ] A spouse’s entitlement to support exists as long as they have a need for maintenance and the other spouse can provide maintenance: s. 5(1) of the Family Maintenance Act . If a need exists, the other spouse is required to meet it to the extent they can do so, subject to the objectives of s. 5(2) of the Family Maintenance Act.

In this case, it is acknowledged that Ms. Townsend has a continued economic need, and that Mr. Townsend has sufficient income to provide support.

The trial judge’s key finding respecting spousal support – that the “marriage generated a pattern of dependency which continued after separation” (at para 76) – has, unfortunately, not changed, as I have already discussed. [ 39 ] The Chambers judge succinctly and correctly determined this issue as follows: [39] … As the [Supreme Court] cautioned in L.M.P ., the focus of the analysis on a variation application remains on the circumstances of the parties and what has changed since the granting of the original order relative to the objectives the spousal support order was intended to satisfy.

Were it otherwise, the SSAG would have prescriptive effect as to duration whenever a specified duration was recommended, without the Court having discretion to otherwise make an indefinite order. The SSAG are discretionary and do not take

precedent over threshold entitlement issues set out in the applicable legislation regarding spousal support. [ 40 ] While it is well recognized that a n order for “indefinite” spousal support does not necessarily mean that support will continue forever (see: Jones v Jones , 2017 SKCA 46 at para 83 , 95 RFL (7th) 43; and D.B.B. v D.M.B ., 2017 SKCA 59 at para 97 ), the facts of this case are distinct because Ms. Townsend’s economic hardship and her inability to achieve self-sufficiency were recognized when the Support Order was made.

As the Chambers judge correctly determined, there have been no material changes to those circumstances since 2002, despite the guidance provided by the SSAG . [ 41 ] Finally, Mr. Townsend argues that the Chambers judge erred by not determining there was a material change in the parties’ financial needs and means since 2002. In my view, this ground of appeal cannot succeed. [ 42 ] The Chambers judge reviewed Ms. Townsend’s financial information, including that she was receiving income from CPP and OAS which she was not receiving in 2002. He determined that at age 70, Ms.

Townsend was past the age of ordinary retirement and that the CPP and OAS replaced the income of $10,000 imputed to her for her failure to work when she was working age. As a result, her financial circumstances were essentially unchanged. There is no error in this finding. [ 43 ] Similarly, the Chambers judge did not err when he determined that Mr. Townsend’s ability to provide support had not changed materially. The Chambers judge rejected the argument that Mr.

Townsend’s 2018 salary should be found to have decreased from its 2002 level due to inflation, as the spousal support payments were not indexed for inflation. In addition, the Chambers judge pointed out that Mr. Townsend’s net worth increased substantially since 2002, that he was able to manipulate his income and engage in income splitting, and that he had chosen not to pay himself dividends from a corporation which held significant cash. There is no error in the Chambers judge’s findings respecting Mr. Townsend’s finances.

I agree that ultimately there was no material change in the parties’ financial needs, means or other circumstances. IV. CONCLUSION [ 44 ] In the result, the appeal is dismissed. Ms. Townsend is entitled to her costs, in the usual manner. “McCreary J.A.” McCreary J.A. I concur. “Richards C.J.S.” Richards C.J.S. I concur. “Leurer J.A.” Leurer J.A.