A couple going through separation or divorce may very well be looking forward to reaching the point where all issues related to their time as a couple are resolved and they are able to move on with their lives. However, just because a divorce is finalized does not mean that the parties to the divorce will not run into issues down the road. As we saw in a recent decision from the Ontario Court of Appeal, a former couple may still find themselves in court decades after they were divorced. The background The parties were married in 1968. They separated in 1985 after being married for 17 years. They had two children while married, and the wife served as their primary caregiver until they reached approximately 12-years-of-age, at which time the children went to boarding school in England (where the parents were from), returning home in the summers. At the time of the trial the children were in their 50s and the parents were 73. The couple entered into Minutes of Settlement on October 15, 1991. This led to a divorce judgment that same year. The judgment included a provision that stated “the (husband) will pay to the (wife) for her support and maintenance as periodic payments the sum of four thousand dollars ($4,000.00) per month, commencing on the fifteenth day of the month next following that in which the proceeds become available, and continuing on the fifteenth day of each and every month thereafter until the (wife) dies.” Motions to change The husband brought two motions to change the 1991 judgment. The first was in 2015 and was related to insurance and security for payment of spousal support. The second was in 2017. In this motion the husband asked to be relieved of his spousal support obligations since he had retired from his career as a dentist. The court ruled in favour of the husband and decreased the spousal support amount from $4,000 to $1,000  per month. The motion judge in 2017 remarked that the wife choosing not to seek employment in the 27 years since the order was issued was “the most significant material change,” adding that the other significant change was the husband’s retirement. On appeal The wife appealed the 2017 decision, arguing there was no basis upon which the agreement could be changed, and that “Even in the face of a material change in circumstances, an agreement is an agreement and the support obligation cannot be altered.” The court did not agree that the order from the divorce was not susceptible to change, but it did find that the motion judge erred in arriving at the change from $4,000 to $1 per month by considering what constitutes a material change in circumstances and in failing to give any deference to the original order of support. Threshold of material change in circumstances When the couple were divorced, the husband was earning anywhere from $250,000 to $300,000 per year as a dentist. As he neared retirement he let his wife know that he would eventually seek to have his spousal support obligations terminated. By the time he retired in 2017, his annual income fell to $65,000 per year plus interest and investment income. The court disagreed that the wife’s failure to seek employment since 1991 constituted a material change in circumstances. The order divorce judgment was clear in stating that support would continue until death, and as such, the wife was entitled to rely upon that judgment. If anything, the court found the husband waited too long to raise the issue of the wife’s failure to find a job. By the time the motion was brought, she was 73-years-old, which would make it very difficult to find employment. The court did, however, agree that the husband’s large reduction in income did qualify as a material change, and that his retirement may not have been considered in 1991. The court referenced the Spousal Support Advisory Guidelines, though they were not in existence in 1991, scale the support obligations down in proportion to how the previous amount related to the husband’s income. In doing so the court arrived at a conclusion summarized as follows,

“ Looked at in this way, the original order was for a low amount of support, i.e. only $4,000, but for a potentially much longer period of time, i.e. the (wife’s) lifetime. Now that the (husband’s) income has decreased to the equivalent of an earned income of $65,000 plus a return on his investment estimated at 27,000 per year (3% on one half of his jointly owned “open investments” of $1.8 million), and the appellant’s income has increased to $32,000 per year, the amount of support should be varied accordingly. Given that the original support constituted approximately two thirds of the low end of the SSAGs, we would continue with that same formula, but based upon current income. Having regard to the parties’ current income, today the low end of the SSAGs would be $1,275. Two thirds of that amount is $850 per month for life.”

At NULaw, we understand the difficult situations faced by families going through divorce or separation. We have an experienced and professional team of family law lawyers with an extensive knowledge of the family law system. We rely on our experience to offer our clients exceptional service by combining big firm results with a small firm relationship. Our lawyers are forward-thinking, adaptable, and innovative. We work to protect our clients’ rights in a way that is meant to avoid costly litigation, but we will fight tirelessly on their behalf when necessary. Please call us at 416-481-5604 or reach us online to see how we can assist you in your family law matter.  

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