Hickey v. Princ, (2015) 340 O.A.C. 136 (DC)

• Judge: Heeney, R.S.J., Lofchik and Matheson, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: June 11, 2015
• Jurisdiction: Ontario
• Citations: (2015), 340 O.A.C. 136 (DC);2015 ONSC 5596

Hickey v. Princ (2015), 340 O.A.C. 136 (DC)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. OC.010

Edward Hickey (applicant/respondent on appeal) v. Gaye Princ (respondent/appellant on appeal)

(DC-14-2058; 2015 ONSC 5596)

Indexed As: Hickey v. Princ

Court of Ontario

Superior Court of Justice

Divisional Court

Heeney, R.S.J., Lofchik and Matheson, JJ.

October 14, 2015.

Summary:

The parties separated after 17 years of marriage, and were divorced in 2004. The wife was unable to work due to her disabilities. The husband was ordered to pay monthly spousal support. The property of the parties was also divided, with the caveat that the husband's Ontario Provincial Police pension had not been fully agreed to. The husband commenced the present motion to change, based on his retirement. He was entitled to a full unreduced pension of $74,477 per year. The wife's income was $35,140.44 per year, consisting of $5,520 in rental income and $29,620.44 in spousal support. Given her disability, she had no employment income. The motion judge concluded that there had been a material change in circumstances, reduced the spousal support from $2,468.30 to $1,050 per month, and fixed a termination date of October 31, 2001. The wife appealed.

The Ontario Divisional Court allowed the appeal. The threshold for variation had not been met. "[A] payor is not entitled to write himself a ticket to a life of idle leisure at the young age of 51, abdicating his spousal support obligations in the process, simply because he has earned the right to a full pension. Such an approach is inconsistent with the provisions of s. 17(4.1) of the [Divorce] Act." Had it been necessary to rule on the issues that related to the quantification and duration of the support order as varied, the Court would have found that the motion judge erred in law in exempting part of the husband's pension income on the basis of "double dipping", and in fixing a final termination date.

Family Law - Topic 3997

Divorce - Corollary relief - General - Economic self-sufficiency - [See Family Law - Topic 4039 ].

Family Law - Topic 4009.1

Divorce - Corollary relief - Maintenance and awards - Awards - Effect of retirement of spouse - The husband was a police officer with the Ontario Provincial Police (O.P.P.) - He based his motion to vary his spousal support obligations on an alleged material change in circumstances related to his voluntary retirement at age 51 on a full pension - The motion judge concluded that the parties had agreed to equalize the husband's pension at its highest value, based on a retirement age of 51, despite the express words of the Minutes of Settlement that "values included for ... the [husband's] O.P.P. Pension ... have not been fully agreed to by the parties" - The Ontario Divisional Court held that the motion judge misapprehended the evidence - "This was a palpable error, evident on the face of the documentation. It was an overriding error, in that it clearly played a major role in the decision-making process that led the motion judge to conclude that the [husband] was entitled to retire at age 51 despite his ongoing obligation to support his disabled former spouse, and is sufficiently significant to vitiate that finding." - See paragraphs 37 to 46.

Family Law - Topic 4009.1

Divorce - Corollary relief - Maintenance and awards - Awards - Effect of retirement of spouse - [See all Family Law - Topic 4017 ].

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Variation of periodic payments or lump sum award - The husband based his motion to vary on an alleged material change in circumstances related to his upcoming retirement at age 51 - He argued that his retirement at age 51 constituted a material change in his income that was unforeseeable, thereby entitling him to vary spousal support downward - The motion judge found that the husband had proven a material change in circumstances - The Ontario Divisional Court, in concluding that the husband had failed to prove the threshold condition for variation, stated that "[i]t is incongruous that the motion judge found that retirement at age 51 was not foreseeable for purposes of spousal support, yet it was foreseeable in equalizing the [husband's] pension, and was taken into account in arriving at the appropriate value. It seems to me that a specified event cannot be both foreseeable and unforeseeable at the same time." - See paragraphs 51 to 54.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Variation of periodic payments or lump sum award - The Ontario Divisional Court dealt with a variation addressed the issue of whether spousal support could continue past the date of retirement of the pension-holding payor spouse - "The pension-holder is entitled to vary only if he is able to demonstrate that his ability to pay support is compromised and therefore a material change in circumstances has occurred. Evidence that a payor voluntarily retired in order to frustrate a support order is clearly an important fact militating against a finding of a material change. In such a case, it would be open to the court to impute income to the payor up to an amount he would have earned if he had not retired ... . However, it does not follow that the absence of such evidence means that the dependent spouse, and the court, must accept voluntary retirement as giving rise to an automatic right to vary the support order to an amount commensurate with the payor's pension income. ... [T]he issue is whether 'his ability to pay' has been compromised. The payor's ability to pay is not necessarily restricted to his pension income alone, and may include his capacity to earn income, either from the job he has chosen to leave or from other employment following retirement. This is consistent with s. 17(4.1) of the [Divorce] Act, which requires the court to determine whether 'a change in the condition, means, needs or other circumstances of either former spouse' has occurred, before making a variation." - See paragraphs 58 to 60.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Variation of periodic payments or lump sum award - The husband chose to retire at age 51 on a full pension - He moved to vary his spousal support payment obligations downward - Before making a variation, s. 17(4.1) of the Divorce Act required the court to determine whether "a change in the condition, means, needs or other circumstances of either former spouse" had occurred - The Ontario Divisional Court stated that, in considering s. 17(4.1), it was "highly significant" that the husband was only 51 years of age - The wife suffered from health problems that the husband conceded rendered her unable to work, such that she was substantially if not totally dependent upon the husband for her support - "In our view, the "means" of the [husband] to pay support is not restricted to his pension income, since he is fully capable of earning income from some other source, and is of an age where it is reasonable for him to continue earning employment income. His capacity to earn income from some other source should have been considered by the motion judge in determining whether a material change in circumstances had occurred." - See paragraphs 62 to 64.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Variation of periodic payments or lump sum award - The husband was a Detachment Commander with the Ontario Provincial Police - He based his motion to vary his spousal support obligations on an alleged material change in circumstances related to his retirement at age 51 on a full pension - The motion judge, in concluding that the husband had proven a material change, found that there was no evidence that the husband chose to retire at age 51 in order to avoid paying spousal support - The Ontario Divisional Court held that, contrary to the motion judge's finding, there was evidence that the husband "had embarked on a steady campaign to eliminate his spousal support obligations" - At the time of the parties' separation, the husband intended to retire at age 60 - His later decision to retire at the earliest possible date, coupled with a motion to vary that was issued nine months prior to that retirement date, supported an inference that he chose to retire early to frustrate the spousal support order - Even accepting the motion judge's finding, that did not end the matter - The husband's decision to retire was voluntary, not compelled by a mandatory retirement policy or health limitations - He still had the capacity to continue working as a Detachment Commander or some other gainful employment - "[A] payor is not entitled to write himself a ticket to a life of idle leisure at the young age of 51, abdicating his spousal support obligations in the process, simply because he has earned the right to a full pension. Such an approach is inconsistent with the provisions of s. 17(4.1) of the [Divorce] Act" - See paragraphs 68 to 74.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Variation of periodic payments or lump sum award - The husband was a police officer - He based his motion to vary his monthly spousal support obligations of $2,468.30 on an alleged material change in circumstances related to his retirement at age 51 on a full unreduced pension - He was earning an annual salary of $122,707.92 - His retirement came at the end of a 30 year career, entitling him to a full unreduced pension of $74,477 per year - The motion judge found that the husband had proven a material change in circumstances - The Ontario Divisional Court held that the husband had wholly failed to prove the threshold condition for variation; i.e., that his "means" had changed such that he was unable to pay the support order - By his own admission, the husband was not forced to leave his position for health reasons or for any other reason - He had, therefore, the capacity to continue working and earning $122,707.92 per year - Even accepting his retirement, his income at the time the divorce order was made was $78,286 per year; that did not constitute a material change - The motion judge did not consider the husband's income-earning capacity or his overall wealth - In failing to do so, the motion judge erred in law - See paragraphs 75 to 80.

Family Law - Topic 4021.5

Divorce - Corollary relief - Maintenance awards - Support guidelines (incl. non-divorce cases) - [See Family Law - Topic 4039] .

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance awards - To spouse - Extent of obligation - [See Family Law - Topic 4039] .

Family Law - Topic 4034

Divorce - Corollary relief - Maintenance and awards - Awards - Effect of division of matrimonial property - The Ontario Divisional Court, in the context of a variation involving a support recipient with a disability, discussed the general rule against "double dipping"; i.e., "where the recipient spouse has already received the benefit of the equalization of the payor's pension plan, it would generally be inequitable to require the payor to pay spousal support following retirement based on the portion of income from that same pension plan that had already been equalized." - See paragraphs 81 to 83.

Family Law - Topic 4034

Divorce - Corollary relief - Maintenance and awards - Awards - Effect of division of matrimonial property - The husband based his motion to vary his monthly spousal support obligations of $2,468.30 on an alleged material change in circumstances related to his retirement at age 51 on a full unreduced pension of $74,477 per year - The wife, given her disabilities, had no employment income - Her annual income was $35,140.44, consisting of $5,520 in rental income and $29,620.44 in spousal support - The motion judge found that the husband had proven a material change in circumstances - The Ontario Divisional Court concluded that the threshold for variation had not been met - The Court, in obiter, commented that the motion judge, in quantifying the support order as varied, erred in law in exempting part of the husband's pension income on the basis of "double dipping" - This case fit within the exception to the general rule against "double dipping" - Spousal support here was based primarily on need arising out of the wife's disability as opposed to compensation, and there were no children - The wife had made reasonable efforts to use the equalized assets in an income producing way, yet economic hardship persisted - If spousal support were to be substantially reduced or discontinued, she would be destitute - The husband had the ability to pay - See paragraphs 87 to 95.

Family Law - Topic 4039

Divorce - Corollary relief - Maintenance and awards - Spousal support - Suspension or termination of - The need for spousal support in this case resulted from the disability of the recipient spouse - The support order, as varied by the motion judge, fixed a final termination date for spousal support payments - The motion judge ruled that "a further eight years of support meets the four spousal support 'objectives' set out in s. 17(7) of the Divorce Act" - The Ontario Divisional Court concluded that the threshold for variation had not been met - The Court would have found, had it been necessary to rule on the matter, that the motion judge erred in law in fixing a final termination date - The motion judge relied on an outdated version (2008) of the Spousal Support Advisory Guidelines that recommended no exception to disability cases - While the motion judge did consider the wife's ability to support herself, his inference that she had undisclosed income was a misapprehension of the facts - Further, the motion judge's conclusory reasoning lacked any real analysis of the objectives in s. 17(7) - Self-sufficiency (s. 17(7)(d)) was unattainable by the wife - While she was able to leverage her equity in the matrimonial home and purchase a rental property, that property generated a mere $5,520 per year in rental income - Without the ability to work and earn income, she had no capacity to become self-supporting - Support ought to have been indefinite - See paragraphs 96 to 112.

Cases Noticed:

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 7].

Sengmueller v. Sengmueller (1994), 69 O.A.C. 312 (C.A.), refd to. [para. 11].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 35].

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 36].

Willick v. Willick, [1994] 3 S.C.R. 670; 173 N.R. 321; 125 Sask.R. 81; 81 W.A.C. 81, refd to. [para. 50].

L.M.P. v. L.S., [2011] 3 S.C.R. 775; 424 N.R. 341; 2011 SCC 64, refd to. [para. 50].

Boston v. Boston, [2001] 2 S.C.R. 413; 271 N.R. 248; 149 O.A.C. 50; 2001 SCC 43, refd to. [para. 56].

LeMoine v. LeMoine (1997), 185 N.B.R.(2d) 173; 472 A.P.R. 173 (C.A.), not folld. [paras. 56, 74].

Teeple v. Teeple (1999), 124 O.A.C. 294 (C.A.), refd to. [para. 59].

Leskun v. Leskun, [2006] 1 S.C.R. 920; 349 N.R. 158; 226 B.C.A.C. 1; 373 W.A.C. 1; 2006 SCC 25, refd to. [para. 61].

Cossette v. Cossette, [2015] O.A.C. Uned. 365; 2015 ONSC 2678 (Div. Ct.), refd to. [para. 64].

Powell v. Levesque (2014), 350 B.C.A.C. 43; 598 W.A.C. 43; 2014 BCCA 33, not folld. [paras. 65, 74].

Ross v. Ross (1994), 48 B.C.A.C. 151; 78 W.A.C. 151; 7 R.F.L.(4th) 146 (C.A.), refd to. [para. 65].

Bullock v. Bullock, [2004] O.T.C. 227 (Sup. Ct.), folld. [para. 72].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211, refd to. [para. 98].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [para. 101].

Schmuck v. Reynolds-Schmuck, [1999] O.T.C. Uned. 677 (Sup. Ct.), refd to. [para. 101].

Foran v. Foran (2007), 223 O.A.C. 109 (Div. Ct.), refd to. [para. 101].

Gray v. Gray (2014), 325 O.A.C. 117; 122 O.R.(3d) 337; 2014 ONCA 659, appld. [para. 110].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 17(1)(a), sect. 17(3), sect. 1(4.1), sect. 17(6), sect. 17(7), sect. 17(10), sect. 17(11) [para. 49].

Authors and Works Noticed:

Rogerson, Carol and Thompson, Rollie, The Spousal Support Advisory Guidelines, a New and Improved User's Guide to the Final Version (2010), pp. 8a-40 to 8a-41 [para. 97].

Counsel:

James N. Eastwood, for the applicant;

Jodi R. Fleishman, for the respondent.

This appeal was heard on June 11, 2015, before Heeney, R.S.J., Lofchik and Matheson, JJ., of the Ontario Divisional Court. In reasons written by Heeney, R.S.J., the Court delivered the following judgment, released on October 14, 2015.