What constitutes “co-habiting” with a new partner for the purpose of meeting the material change test under a separation agreement?

[27] As the parties were married, variation of spousal support is governed by the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) as amended, and in particular section 17. Per subsection 17(4.1), before the court can make a variation order it must be satisfied that there has been a change in the condition, means, needs or other circumstances of either former spouse since making the last spousal support order. Once that has been met, the objectives of a variation order are set out in subsection 17(7) which reads as follows:

17(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 above any 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.

[28] The four section 17(7) objectives can be viewed as an attempt to achieve an equitable sharing of the economic consequences of marriage or marriage breakdown: see Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813 at paragraph 78, and Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518 at paragraph 21. Family law can only play a limited role in alleviating those economic consequences (Moge v. Moge at paragraph 76). No one objective has greater weight or importance than another (L.M.P. v. L.S., 2011 SCC 64 at paragraph 49).

[29] As an overview, the approach to be taken was set out by the Supreme Court of Canada in L.M.P. v. L.S. at paragraph 50 as follows:

50. In short, once a material change in circumstances has been established, the variation order should “properly reflec[t] the objectives set out in s. 17(7), . . . [take] account of the material changes in circumstances, [and] conside[r] the existence of the separation agreement and its terms as a relevant factor” (Hickey, at para. 27). A court should limit itself to making the variation which is appropriate in light of the change. The task should not be approached as if it were an initial application for support under s. 15.2 of the Divorce Act.

Change in Circumstances

[30] The change in circumstances must be material, meaning that if known at the time it would have resulted in different terms: L.M.P. at paragraph 32.

[1] The trial in this matrimonial case primarily involved equalization; spousal support; child support; access; and a variety of miscellaneous issues.

[…]

[53] The respondent asks that I take into account what he says is the applicant’s “partnering” with Thomas Beamon. He submits that there is strong circumstantial evidence that they are living together, even though the applicant denies it.

[54] The applicant acknowledged during her testimony that Mr. Beamon had slept at her home nearly every day for a week prior to the trial. She acknowledged that Mr. Beamon has access to the matrimonial home and can come and go as and when he pleases by using a password. She acknowledged that the furniture for Mr. Beamon’s children has been moved into one of the secondary bedrooms in the home. She acknowledged that Mr. Beamon keeps at least some of his clothes at the home. She acknowledged that some of his furniture is stored at the matrimonial home. She admitted that he eats a lot of his meals there. She also acknowledged that she, Brock, Mr. Beamon and his children have taken a number of family vacations together.

[55] The respondent submits that unless re-partnering with Mr. Beamon is taken into account now, it cannot be taken into account later because it is clear that the relationship is at a stage where it is likely, or at least clearly possible, that it may ripen into a stable relationship. He notes that that is the inevitable result of L.G. v. G.B, 1995 CanLII 65 (SCC), [1995] 3 S.C.R. 370; and Bhupal v. Bhupal (2008), 2008 CanLII 53129 (ON SC), 92 O.R. (3d) 211 (S.C.J.); affirmed 2009 ONCA 521 (CanLII), 97 O.R. (3d) 230 (C.A.).

[56] It should be noted that the respondent had placed Mr. Beamon under subpoena, but he elected to not call him at the trial.

[57] I am not prepared to find, on the evidence presented, that the applicant and Mr. Beamon are in a spouse-like relationship. At most, the evidence suggests that they are in a serious relationship that may ripen into a spousal relationship, but has not yet done so. Accordingly, I am not prepared to take into account the applicant’s relationship with Mr. Beamon in calculating spousal support.

[58] I have sympathy with the respondent’s position. At this point, he is in the unenviable position where it is quite possible, even probable, that the relationship will ripen into something stable. As such, that possibility is clearly foreseeable. According to L.G. v. G.B., supra, which is based on the test in Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, if the relationship indeed moves to a spousal relationship, it will not give rise to a legally-recognized change in circumstances so as to result in a potential reduction in spousal support. While some may consider this to be unfair, it is nevertheless the result of binding authority. At this point, there is no evidence that Mr. Beamon contributes anything to the applicant’s living expenses.

[1] […] the main issue in this case is variation of spousal support, specifically, quantum and duration pursuant to the Divorce Act R.S.C. 1985, c.3 (2nd Supp.) (“Act”).

[…]

[4] The couple’s September, 1997 separation agreement included joint custody and payments to the respondent of spousal and child support. Regarding spousal support, the applicant agreed to pay $1,200 on each of the 15th and last day of each month, indexed to C.P.P. (Ottawa) and life insured. The divorce judgment incorporated some terms from the separation agreement.

[…]

The Applicant’s Position

Spousal Support

[14]

(i) The marriage lasted 14 years and he has already paid spousal support for over eight years. He submits he has fulfilled his obligation to help the respondent over the financial shock of separation.

(ii) He argues not only has the respondent an obligation to become self-sufficient but given she was employed on a full time basis for three of the past four years, she in fact has achieved self-sufficiency.

(iii) He deposes the respondent has introduced little evidence that she actively sought employment since October, 2001. The applicant presented newspaper advertisements showing there have been jobs available.

(iv) He submits if the respondent is self-employed as a business and personnel consultant it would be reasonable to expect her to file a business plan, budget and financial statement because there must be some expectation of profit. She has not presented this information.

(v) Further, because the respondent’s child care responsibilities have lessened substantially over the past eight years of separation she has more time to do what it takes to become self-sufficient.

(vi) The respondent claims she cannot work full time as the result of a January, 1994 motor vehicle accident. It is the applicant’s position that accident had nothing to do with their subsequent separation and divorce. Also, the respondent has not provided medical evidence supporting a diagnosis of post traumatic stress disorder which she says is a result of the accident.

(vii) The applicant asserts that since the respondent has cohabited with a new partner since April 2001 and cared for his children on a part-time basis, that partner now has the financial responsibility to provide for the respondent. The respondent states caring for the children does not inhibit her activities to find employment.

(viii) The respondent now enjoys a better lifestyle than the applicant can afford – she lives in a more expensive house, drives a newer, more expensive car, and can vacation in her partner’s summer cottage. In short, she does not require support.

(ix) The respondent has overstated her expenses which affects her credibility.

(x) In October 2001 Morin, J. found her income to be $38,000 annually in denying her motion to increase spousal support. The applicant submits this court should find the respondent’s average annual income to be $37,114 and certainly not less than its $29,733 average over the past six years.

(xi) The applicant submits his average adjusted annual income is $95,322, not $103,000 nor the $120,000 suggested by the respondent. He submits his income should be adjusted downwards because the $1,000 monthly extra shown on his financial statement is an allowance for automobile expense and rent and is not a taxable benefit.

(xii) Finally, he argues he does not have the required ability to pay spousal support if the respondent does not contribute to the expected post-secondary expenses of James and in the future those of Jenna. He will be required to shoulder the entire burden of these special expenses subject to what the children can contribute.

[…]

(ix) The respondent does not deny she has cohabited with her new partner since April 1, 2002, but submits this cohabitation should not be a reason to terminate spousal support.

[…]

[30] The applicant invites the court to impute income to the respondent. Pursuant to section 19 of the Guidelines, a court has a broad discretion to do so. Presumably, the argument for the imputing is the applicant believes the respondent is intentionally unemployed given she was employed full-time for almost three years after separation. Additionally, but not pleaded in so many words, the applicant would have the court attribute income to reflect the benefit of the respondent having a new partner to share expenses.

[31] The court is not prepared to impute income. The court is not satisfied the respondent is intentionally underemployed. The evidence is she only recently obtained any special training. Before that she stayed at home with the concurrence of the applicant for fourteen and a half years to raise the children, followed by some periods of full and part-time employment. There is some medical information to suggest she cannot now work full-time. By starting her own business, she has some control over the hours she works and hopefully her present networking with potential clients will pay off. The court accepts her position that she desires to achieve financial independence. Further, the new partner has no legal obligation to provide for the respondent. Rather than impute income for the fact they share expenses, the preferred approach is to determine how that sharing impacts on her needs. This will be examined when discussing spousal support.

[…]

[41] The applicant requests he be relieved from paying spousal support effective October 1, 2002 for the reasons set out earlier. The respondent submits the court should not discontinue spousal support for the reasons she has given. As well, the separation agreement and the details of the various court orders have been set out. Although neither side referred to it during their submissions, their separation agreement contained a clause that the respondent was to become self-supporting as soon as reasonably possible.

Material Change

[42] The last order which dealt with spousal support in a substantial way was the order of Morin, J. dated October 5, 2001. It continued spousal support of $250 twice monthly. The applicant’s income was $103,000 and the respondent’s $38,000 annually. Has there been a material change in circumstances since that order?

[43] The respondent lost her employment October 15, 2001. This court has found her 2001 “after job loss income” to be $35,284. This court rejects the respondent’s request to increase spousal support effective October 1, 2001 on the basis there is not a material change in her income or circumstances for that year.

[44] In 2002 there are changes which the court finds are sufficient, when taken in combination, to be considered material and to found a variation. First, the applicant’s income decreases from $103,000 to $96,000, the respondent’s income decreases from $35,284 to $14,100, and the respondent shares expenses as of October 1, 2002 with her new partner.

[…]

[46] The applicant argues the respondent is self-sufficient, having been employed full time for three of the eight years following separation.

[47] It is often said that “timing is everything”. At the time of Morin, J.’s order the respondent was employed; on January 24, 2003 when this variation proceeding was commenced by the applicant the respondent was unemployed. The court is satisfied she was not self-sufficient on that date nor is she now, receiving only the Child Tax Benefit of $113 monthly.

Other objectives

[48] The Supreme Court of Canada in Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] S.C.J. No. 14, held all objectives of s.15.2(6) of the Act and not just self-sufficiency must be addressed. The other objectives relate to the economic advantages or disadvantages to the spouse arising on marriage breakdown and the apportioning between the spouses of any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage. Those objectives have been considered by the parties in their separation agreement and by the previous orders dealing with the issue of spousal support. To date this has resulted in the applicant paying spousal support.

[49] Section 17(7) of the Act requires the court to examine all the same objectives of spousal support at the time of variation as had been observed when the agreement/order was first made. In addition s.17(4.1) of the Act allows the court to consider whether there has been a change in the condition, means, needs, and other circumstances of the former spouse since the making of the order.

[50] Many authorities interpreting Canada’s Divorce Act now tend to compensate the child-care giving spouse who has sacrificed career opportunities. (See Moge v. Moge (1992), 1992 CanLII 25 (SCC), 43 R.F.L. (3d) 345.) This court has no evidence here of what those career opportunities for the respondent might have been, or what compensation is fair. In any event, it seems clear that this 14 year cohabitation was sufficiently long enough to create a relationship in which the respondent was financially dependent upon the applicant. Courts suggest that dependency should be addressed before support is terminated. See Moge v. Moge, supra.

[51] What conditions, means, or other circumstances convince the court the respondent’s economic dependence on the applicant continues to exist?

Child Care

[52] By arguing the respondent’s child-care responsibilities have lessened, the applicant is lending support to the respondent’s argument that she was the primary care-giver. Today’s child-care responsibilities are different, given Kristopher is independent, James resides with his father and only Jenna still remains with her mother. Although not quite age 40 at the date of separation, a fact that suggests she was then capable of entering the work force, there was a significant period following separation during which the respondent had to juggle child-care along with her attempts to find a position and then remain employed. She continues to be involved with Jenna today.

[53] The court is satisfied both parties continue to have significant although different child-care responsibilities.

Sickness

[54] In addition to the pattern of economic dependency, there is the added factor that the respondent’s health deteriorated while she cohabited with the applicant.

[55] The court has no evidence other than the respondent’s deposing she has a post-traumatic stress disorder. Her doctor provides his opinion that the respondent cannot work full time. While it would have been helpful to have a more complete medical picture, the court is satisfied the respondent’s health is a factor to be considered.

Job Opportunities

[56] As for the advertised employment opportunities, the court has no evidence the respondent is qualified to fill them.

Co-habitation

[57] Cohabitation with another does not rule out entitlement to spousal support, especially when the duration of the new relationship has not created a new entitlement. At the time of the application, the period of cohabitation was only 10 months.

[58] It is admitted the respondent has a new partner and they share expenses. The respondent assists her new partner in care-giving for his children when the children enjoy access with them. Despite her assertions this care-giving does not affect her efforts to build a business, the court suspects the child-care coupled with her health concerns has some bearing on her ability to work. For this reason it is reasonable to expect the new partner with his annual income of ninety to one hundred thousand dollars to contribute to her expenses and financial well being and in fact he does, even though a legal obligation to provide support based on cohabitation is absent.

Lifestyle

[59] The applicant submits the respondent’s lifestyle is better than his. The respondent submits her lifestyle is no different than what they enjoyed during marriage. The respondent’s comments on their “retirement home” and travelling were not disputed and convince the court this couple enjoyed a comfortable lifestyle. Both parties are entitled to a standard of living after separation which while comparative to each other is initially, in reality, lower than what they enjoyed during marriage. It is difficult to maintain the same lifestyle when costs are increased to maintain two households rather than one unless there has been a corresponding increase in income. That increase in income has not occurred here.

[60] The applicant equates the respondent’s staying at home – a more expensive home, driving a more expensive car, with lesser child care responsibilities as indicative of a better lifestyle. Further, the applicant claims his lifestyle is “lower” because he must work and his money goes to pay child support, particularly special expenses. The respondent’s “better lifestyle” may be more illusionary than real. When the most recent financial statements of the parties are compared on the essential items of housing, food, clothing and transportation, the applicant spends $4,017 monthly; the respondent $3,878. The applicant’s monthly income is $8,000; the respondent’s $113. The applicant’s total monthly expenses are $9,014; the respondent’s $6,201. The respondent’s health care costs are five times the applicant’s. The applicant contributes $1,125 monthly for RRSPs, the respondent, zero. Even discounting the respondent’s housing and transportation expenses, the court is satisfied the respondent has need. That need is not the total responsibility of her new partner.

Duration

[61] Significant time has elapsed since separation during which the applicant has supported the respondent. It is tempting to seize upon this factor, and terminate support, especially since the separation agreement contained the provision the wife was to become self-sufficient as soon as reasonably possible. The fact the respondent had not achieved self-sufficiency during eight years of payments must be weighed with the other objectives of spousal support.

[62] In Canada, there are no statutory spousal support guidelines that establish the period during which spousal support is paid.

[63] Rather, s. 15.2 of the Act allows the court to order payment of an amount the court thinks reasonable for a definite or indefinite time or until a specified event occurs and the court may impose terms, conditions or restrictions after taking into account the conditions, means and other circumstances of each spouse including the length of time the spouses cohabited, the functions performed during cohabitation, and any order, agreement or arrangement relating to support.

[…]

[65] In summary, the court is satisfied the respondent has need, and their lifestyles are comparable. Having no income she is not self-sufficient; she assumed duties of care-giver to their children that continue even today. Her health prevents full-time employment and her co-habitation is not of the required length to provide her with entitlement from another. These are the circumstances which convince the court the pattern of economic dependence continues and while it seems odd to say an application after eight years is “premature”, this court is satisfied the respondent still has an entitlement to spousal support from the applicant.

[1] This was a motion by the Respondent husband to terminate the spousal support provisions of the order of Justice Czutrin dated March 26, 1997. That order – requiring that the Respondent pay $250.00 per month – was actually a temporary order, but both counsel requested that I treat this as a variation of a final order.

[…]

[8] In his March 26, 2007 endorsement, Justice Czutrin noted:

a. Both parties had made inadequate disclosure.

b. However, the Respondent’s failure to make disclosure came in spite of specific requests by counsel for financial information.

c. The Respondent’s evidence did not contradict the Applicant’s characterization that this was a traditional marriage in which he was the main economic provider.

d. As of 1997 the Applicant had been living in an unmarried relationship with another man for approximately three years, and she was obtaining some financial benefit from that cohabitation.

e. No “need” for support was demonstrated on the Applicant’s financial statement. Any financial difficulty had been created by the Applicant dissipating her assets from the funds received in the property settlement.

f. Based on recent earnings, the Respondent’s income was deemed to be $57,000.00, arising from skills and work experience he obtained during cohabitation.

g. The court noted: “because of the functions performed during the cohabitation and marriage the Applicant was economically disadvantaged and the Respondent economically advantaged.”

h. Justice Czutrin found that pursuant to section 15 of the Divorce Act the Applicant was entitled to spousal support. […]

[…]

[11] The Respondent’s counsel argued the Applicant is still living with the same partner, and after 17 years together there should be a presumption that they share a permanent economic unit, with the result that any “dependency” upon the Respondent has been extinguished. […]

[…]

[26] The mere fact that the Applicant is still living with her partner does not automatically constitute a material change in circumstances. Although the Respondent’s counsel attempted to draw the distinction that at the three year stage which existed in 1997 the Applicant’s live-in relationship was “embryonic”, whereas now it is “permanent”, the existing order sets out no specific timelines by which continued cohabitation would constitute a “material change”, or justify some automatic review or termination.

[27] Re-partnering by a dependent spousal does not necessarily terminate entitlement, particularly when that entitlement is (in whole or in part) compensatory as described in Bracklow v. Bracklow, 44 R.F.L. (4th) (S.C.C.). The Applicant’s financial participation in a second long-term relationship has in many ways been defined and limited by the economic disadvantage she experienced in her marriage to the Respondent.

[28] From the evidence I conclude the Applicant’s efforts toward self-sufficiency have been (a) reasonable, and (b) as contemplated when the 1997 order was made. Prior to separation she had a long history of working part-time at lower wages. She has maintained this employment path, and plans to continue to do so despite adversity and significant uncertainty in her own life.

[29] In the final analysis, the only real “change” relates to the comparative income levels of the parties.

[1] Mr. Sheridan says that there has been a material change in his financial circumstances, and those of Ms. Sheridan, such that the terms of an order relating to child and spousal support should be varied retroactively to the date of the order. He has brought this application to vary the order of Baltman, J. dated September 19, 2011. The question for me to decide is whether there has been such a material change and what the effect of that change might be on the order.

[…]

[8] In brief, Mr. Sheridan says:

1. He was under pressure to sign the Minutes of Settlement and now realizes that he should not have done so.

2. Almost immediately after the order was made, his income dropped substantially.

3. Based on his income tax returns for 2011 through 2013 and his pay stub of 2014, his income has been reduced such that a new order should be granted.

4. Based on that income, he has overpaid both child and spousal support and the arrears should be rescinded.

5. Although he may not have paid the appropriate amount of special or extraordinary expenses, he has overpaid Ms. Sheridan so much that the overpayment should negate these expenses.

6. I should calculate spousal support based on the household income of Ms. Sheridan including the income of her new partner.

7. Ms. Sheridan should have done more to be self-supporting and I should bring spousal support to an end.

[9] In response, Ms. Sheridan says that the order should not be changed because Mr. Sheridan has earned substantial unreported cash income and that there has been no material change in his circumstances. She is also upset about the manner in which the separation occurred and the fact that he has failed to exercise proper access to the children. She has had to make sacrifices over the years since the support has been lower than expected and has arrived sporadically.

[10] She submits that she has been a stay-at-home mother throughout their 18 year marriage with the exception of a few years of part-time employment. Since they have only been separated a total of four years, support should not come to an end at this time.

[11] She denies that Mr. Sheridan was under any pressure with respect to the interim order.

[12] She seeks an order that Mr. Sheridan pay debt payments as set out in the present order and that he pay her $275.00 for a medical expense she incurred when he failed to maintain her on his benefits pursuant to the order.

[…]

[25] There has been a substantial drop in Mr. Sheridan’s income. Ms. Sheridan has commenced a new relationship. Two of the four children have left the home and Ms. Sheridan is no longer supporting them. Ms. Sheridan has been able to find reasonable employment. I am satisfied that there has been a material change in circumstances as set out in the parties’ agreement such that I can consider a variation of the order.

[…]

[42] Section 15.2 of the Divorce Act, states that spousal support is to be awarded such that the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including the length of time the spouses cohabited; the functions performed by each spouse during cohabitation; and any order, agreement or arrangement relating to support of either spouse.

[43] In making an order for spousal support, the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

[44] Further, pursuant to s. 17(7) of the Divorce Act, an order that varies the support of a spouse should recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; relieve any economic hardship of the spouses arising from the breakdown of the marriage; and in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[45] Pursuant to the Spousal Support Advisory Guidelines, calculations are to be made based on the income of the spouses. I cannot accept Mr. Sheridan’s submission that support should be based on Ms. Sheridan’s combined household income.

[46] This was a lengthy marriage and for most of it, Ms. Sheridan stayed at home with the children. After that, she had only part-time employment as she made efforts to support herself.

[47] Spousal support is not only based on need but on compensation for a spouse for the lost opportunity to earn income. That has been the case here where this long marriage has made it difficult for Ms. Sheridan to re-enter the workforce.

[48] I do not accept Mr. Sheridan’s submission that Ms. Sheridan has not done enough to support herself. The information that he attaches to his affidavit is not properly admissible before the court. Even if it were admissible, I can see no basis to find fault with Ms. Sheridan’s efforts. She has recently found a new job which has doubled her income. She is making satisfactory efforts to obtain self-sufficiency.

[49] After 21 years of co-habitation, support for four years is simply too short. I decline to order a termination of the support at this time.

[…]

[51] Both parties made their submissions on the basis of the S.S.A.G.’s. However, the full text of the Guidelines sets out a number of possible exceptions to those calculations. Those exceptions can include repartnering and support variation applications such as this. Accordingly, there are arguments that may be made that the ranges are not appropriate.

[1] This is a motion by the ex-husband Eric Wegler ("Eric") to change (reduce or eliminate) spousal support payable to Rise Wegler ("Rise"), his ex-wife […]

[…]

[31] At the time of the divorce, commencing March 1, 2002, Eric was to pay Rise spousal support of $1200 per month, to be reviewed at Eric's option on or after March 1, 2005.

[32] Eric applied for review of spousal support. Eric gave evidence that the 2005 review was to focus on Rise's progress in achieving self-sufficiency. In 2005-2006, she was taking university courses part-time. As of March 2006, she didn't think she was self-sufficient yet. She told Eric she needed more time. She wanted increased spousal support. On the eve of trial in May 2006, the parties reached an agreement that he would continue to pay her spousal support of $1700 per month reviewable at the option of Eric at any time after March 31, 2011. A consent order was issued. They agreed to share the s. 7 expenses on a 75/25 split except university expenses, which were to be shared on a 50/50 basis.

[33] When Eric exercised his option for a 2011 review pursuant to the May 19, 2006 Order, counsel for Rise submitted that she should not be bound to accept the $1700 per month, but should be entitled to receive spousal support determined under the Spousal Support Guidelines.

[34] When he agreed in 2006 to pay $1700 per month in spousal support, Rise was yet to re-partner. By the summer of 2007, she was living at least part-time with a Mr. Bernie Wasserman ("Bernie"), an engineer.

[35] On November 17, 2009, Rise and Bernie entered into a cohabitation agreement (Ex. 24), paragraph 5.1 of which provides: "The parties acknowledge that Rise's continued cohabitation may affect her rights to receive spousal support from her former husband."

[36] Paragraph 1.7 includes the following: "They plan to purchase together a new home in the near future." Paragraph 2.5 provides that with respect to that residence, "Each party will be expected to contribute to the maintenance, upkeep, utilities… not necessarily equally but to the extent he or she is able."

[37] In early 2010, Rise advised Eric that she and Bernie had purchased a home together for $730,000.

[38] Rise and Eric could not agree on the effect that Rise's re-partnering should have on Eric's continuing spousal support obligations.

[39] At the time of the hearing in July 2012, Rise and Bernie had lived together 2½ years. Her evidence was unclear as to how her repartnering has affected the quantum of her ongoing living expenses. On the subject of splitting their housing expenses, she said at first that she pays 50% and Bernie pays 50%. She later said that if Bernie's adult son is living with them, Bernie pays 40% and she pays 60%. If the son is not there, she pays 65% and he pays 35%. When her three daughters are at home, she pays 65%. Of total grocery costs of $1300 per month, Bernie pays 30% and she pays $1000.

[40] Her financial statement filed in these proceedings indicates that she pays $600 per month for property taxes. She gave evidence Bernie pays $150 per month. She could not specify the total amount of the property taxes on their home. [There was evidence that in 2009, the municipal taxes on that house were $5,373 per year, or $447.75 per month.]

[41] Rise did not include her investment income on her financial statement, which she estimated at $7,750 in 2011.

[42] Starting October 18, 2010, Rise worked from 8:30a.m. to 4:30p.m., three days per week at St. Michael's Hospital. However, that employment ended on November 15, 2010. She was on unemployment insurance for 10 months. She has not worked since November 2010, although she gave evidence that she has been attempting to find work as a medical secretary during the hours Maya is in school, which allows her to "address Maya's needs."

[43] Eric gave evidence they each received $850,000 at the time of the divorce. She said they each received $750,000.

[44] At trial, Rise estimated her present net worth to be $961,000.

[45] Rise would like post-secondary costs to be shared 75/25. If she were to receive full child support for all three daughters, she would agree to a 50/50 split for post-secondary costs.

[46] While Faryn and Kira pay personal entertainment expenses, Rise gave evidence that she has been using child support money to pay 100% of their transportation, clothing, shoes, toiletries and cell phone costs; when they are home she provides them with spending money. They use her car. She insures them and pays for their gas.

[47] She admitted that Faryn applied for Ontario Student Assistance (OSAP), a loan of $5,000 and $1,000 grant based on her reported income plus Faryn's income. After she received it she banked the loan portion and repaid it when Faryn graduated.

[48] Rise gave evidence that when Faryn was 13, it was discovered she has a "profound" hearing deficit. She may eventually lose her hearing altogether. Rise recently had to make special arrangements, e.g., note-taking for Faryn's upcoming studies at Seneca. It was a "big endeavour to look into all of this." However, she agreed in cross-examination that Faryn applied to Seneca "online without me helping her." In cross-examination she said, "She tries her best to use her cellphone as a telephone."

[49] Eric downplayed Faryn's hearing difficulties, saying, "They are treatable by supplying new hearing aids every few years."

[50] Maya has defiance issues. Rise takes her to see a psychologist, Dr. Taub, "on a weekly basis as necessary" (since July 2006 about once per month) and once per week to see a social worker at Southlake Hospital in Newmarket.

[51] Rise gave evidence that dealing with Maya's defiance is "a full-time job on its own." Because Eric continues to work long hours, 7:30 a.m.-7:00 p.m., he is unavailable to take Maya to counseling sessions or other activities.

[52] Rise said in effect that she has devoted her life to the children, putting her life on hold for her family. Because of her family obligations, she has had little opportunity to explore other opportunities. In her mind, her past and continuing obligations to the children make ongoing spousal support from Eric "fair."

[53] She said she has been able to take only 1 or 2 courses at a time. In 2010, she graduated from a three year Bachelor of Arts program. In the year after her graduation in 2010, she took no courses at all.

[54] Now she maintains that she needs a 4 year B.A. to gain entrance to graduate school. She said she can't get into teaching with a 3 year degree. She needs to complete four more courses to graduate from a 4 year degree. At present her long-term plan is to finish a 4 year degree by the end of April 2014 and then to try to get into teacher's college in Guelph or Oshawa. A Master's in Education would take a year or two. She would like to obtain a Master's degree and work with children.

[55] I accept Rise's evidence that during the marriage, her child care responsibilities adversely affected her earnings and earning potential. To this day, her child care responsibilities continue to curtail her earning capacity and to enhance Eric's. I find Rise has in the past and continues at present to bear the lion's share of responsibility for seeking to the needs of the children. Eric has met with Maya's psychologist Dr. Taub only once in the past six years. In cross-examination, it became evident that Eric is unfamiliar with Maya's present problems and treatments. I find Eric understated Maya's present difficulties. For instance, he thought she is receiving group therapy at Southlake Hospital, when in fact she receives individual counseling.

[56] The fact that Rise's childcare duties extended well beyond the date of separation made it next to impossible for her to achieve economic self-sufficiency.

[57] Here the parties were financially interdependent. She was economically disadvantaged disproportionately and he was economically advantaged during the marriage and after the separation by her assumption of the childcare duties, leaving him free to pursue his career unfettered by childcare responsibilities. This continued after the separation and continues today, although to a lesser extent than at the time of the separation. Her responsibilities vis-à-vis Maya and to a lesser extent Faryn and Kira, while they do not materially affect her ability to seek full-time work, keep her from working the long hours Eric is free to work.

[58] Now Maya is starting high school, she could drive herself to her own appointments. While her difficulties continue, in my view Rise could do full-time work without adversely affecting her.

[59] When Maya is totally independent, Rise will be largely free to pursue her own ambitions unfettered. However, by then, she will be in her late 50s. That in itself will adversely affect her earning potential.

[60] In this case, given her continuing responsibilities and her age at the time those responsibilities will completely cease, the wife on her own cannot realistically replicate, the joint standard enjoyed during the marriage. As her children's needs have decreased, her working capacity has increased, but even that ability must be viewed in the context of lost opportunities for training and advancement in the interim.

[61] Although Rise has been pursuing post-secondary education, by the time she finishes her 4 year degree and Master's, she will have reached the age at which many teachers have already retired.

[62] I find Rise suffers from some continuing economic disadvantage from the marriage and the child care responsibilities she assumed during the marriage which continue to the present time. Her economic disadvantage from marriage will likely continue indefinitely, even though the marriage was medium term and she does not meet the rule of 65.

[63] At the same time, I find she overstated the effect on her ability to pursue her education and work fulltime of her past and present child care responsibilities.

[64] I am of the view that she could and should have retrained at a faster rate.

[65] By now she should have been more self-sufficient than she is. That said, given her almost exclusive assumption of child care responsibilities, even had she aggressively retrained, she would never have been able to generate the earnings Eric can, in large measure because he has been saddled with minimal child care responsibilities.

[…]

[93] In all the circumstances here, I am of the view Rise continues to be entitled to spousal support.

[94] It appears that Rise will continue to be economically disadvantaged as a result of the marriage and her continuing child care obligations.

[95] On the one hand, by reason of the child care arrangements the parties made during the marriage and post separation, Rise has had and continues to have compensatory claims based on economic disadvantages flowing from her assumption of primary responsibility for child care, not only during the marriage but also after separation. While that hobbled Rise's ability to work, it freed Eric to work long hours without impediment. She has continued to incur financial consequences as a result. The parental partnership principle has applied and continues to apply, given Rise's continuing child care responsibilities. Section 15.2(6) of the Divorce Act provides that a spousal support order should apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage.

[96] It is necessary to consider individual facts. Here, ten years after the divorce, Eric continues to benefit and Rise continues to suffer financially from patterns of child care established during the marriage and continuing to the present.

[97] If Rise chooses not to work fulltime, that is her choice. However, in considering the amount of spousal support, if any, it should be assumed that she could work full-time as a medical secretary.

[98] The fairest way of dealing with her delays in retraining and her reluctance to work is to impute to her the income she could have made as a medical secretary on a full-time basis. Based on part-time hourly rate of $22 per hour, in 2010 x 40 hours/week = $45,760 per year.

[99] In addition, she has investment income of approximately $7,750.

[100] Rise's income should be imputed at $53,510.

[101] I have found that Rise could and should have made more vigorous efforts either to find work as a medical secretary or to complete her university education sooner than she has. Her child care responsibilities have decreased as her three daughters matured. The youngest, Maya, is in high school. Despite her defiance issues and Faryn's hearing issues, by now Rise should have sought and obtained full time employment.

[102] I have considered a number of other pertinent factors. I have considered the repartnering of the parties. The continuing spousal support being of a compensatory nature, her repartnering while relevant, does not necessarily eliminate Eric's ongoing benefit and Rise's ongoing detriment.

[103] The length of her relationship with Bernie is increasing. He shares expenses with her.

[104] I have also considered the financial statements and standards of living of the parties. Rise received substantial assets on the dissolution of the marriage that are or could be available to increase her income or reduce her day-to-day expenses. She has no mortgage. Her net worth is substantial. Even though she has not been working of late, while she has been receiving full child support, her net worth has been increasing and she has been able to take numerous trips.

[105] I have also considered that Eric has also repartnered and is able to share living expenses with his spouse.

[106] I have considered that in 2006, before she repartnered, at a time when she was entitled to full table child support, she agreed to spousal support of $1700 per month. She agreed to generally pay 25% of s. 7 expenses for all three daughters but specifically to pay 50% of university expenses because he agreed to pay full table support [even though two of the daughters would be attending university and living away from Rise's home.]

[1] This Motion to Change (to terminate the payment of spousal support as the applicant wishes to retire) and the Cross Motion (the respondent seeks retroactive and increased spousal support from 2015) are brought under the Divorce Act. Counsel agreed that the relevant sections of the Divorce Act are sections 15(2) and section 17. A trial was held during which I had the opportunity to hear viva voce evidence.

[2] The applicant seeks an order that his spousal support obligation to the respondent contained in their separation agreement be terminated effective June 30, 2021 when the applicant is 58 ½ years old. That is the age at which his pension was valued for equalization purposes.

[...]

[4]  The parties agree to the following facts for the purposes of trial:

1. The Applicant was born on December 25, 1962. He is presently 55 years of age about to turn 56 on Christmas Day.

2. The Respondent was born on January 24, 1963. She is presently 55 years of age and will turn 56 early in the new year.

3. The parties were married on August 24, 1985.

4. The parties separated on September 12, 2003.

5. The parties were divorced on April 3, 2007 by Justice Paisley in Toronto.

[…]

[5] The parties did not argue that the pending retirement of the applicant would not constitute a material change in circumstances, even though it has not yet occurred. Both appeared to simply want to have certainty for their future and hence this matter was before the court. The decision to retire is one of the agreed circumstances which is defined as a material change in circumstances in the separation agreement between the parties. Unless there is a compelling reason to find otherwise, the courts should respect the agreement made by the parties with the advice of counsel. I therefore find that there is a material change in circumstances in this matter which permits the court to proceed to determine the issues argued during this trial

[…]

[23] The respondent’s partner Mr. Young testified. He is a long time employee of Arcelor Mittal in Hamilton and will earn approximately $95,000 in 2018. He was called as a witness by Ms. Williams. He agreed that he and the respondent have essentially been a couple since 2014. In 2016, Ms. Ryan finally moved into his residence where they have co-habited to this date. He testified that they have never discussed the possibility of living in separate dwellings.

[24] Ms. Ryan purchased a house in July 2018 which required extensive renovations. She testified that starting in late August, she began renovating the house, working as much as 10 hours per week to get it ready for occupancy.

[25] She explained she purchased it as her retirement investment to give her security. Contrary to her partner, she testified that she plans to move into that house when the renovations are completed. Frankly, I do not believe her when she says she intends to move there while continuing her relationship with her partner. I accept that she probably will rent the house out as an income producing property which is something her partner indicated he thought was a real possibility. Alternatively, she and her partner may decide to move to that residence and rent out his property which is a cottage property near Lake Erie. I believe that Ms. Ryan has tailored her evidence to escape the suggestion that in considering her household and living expenses, her partner will be able to easily contribute one half of the expenses. I am reaffirmed in my belief in that respect by virtue of the fact she did not disclose to the applicant that she was co-habiting with Mr. Young since May 2016 until these proceedings were initiated late in 2017.

[26] In 2014, the applicant began co-habiting with a new partner. She works for the same employer as the applicant and earns approximately $117,000 per year as of the date of this trial. They live in her home in Pickering and share an interest in a condominium located at Yonge Street and Finch Avenue in Toronto. The fact they were co-habiting was disclosed in his 2014 tax return which was produced to the respondent in a timely manner.

[…]

[33] It is clear that based on the Spousal Support Guidelines, the applicant has benefited significantly from paying a lower amount for spousal support than he otherwise would have been liable to, from 2012 to present (once his obligation to pay child support terminated). However, the respondent was aware of that fact and chose not to seek an order varying it until 2017. Even then, she had not disclosed the fact that she was co-habiting with Mr. Young since at least 2016. Furthermore, from the record before the court, the respondent has not provided her tax returns and Notices of Assessment from the Canada Revenue Agency in a timely way.

[34] I do not feel that this is a case where retroactive spousal support should be ordered from 2015. Mr. Ryan has faithfully complied with virtually every detail of his required disclosure and payments under the separation agreement. To suddenly burden him with a large capital payment because of the delay of the respondent in enforcing her rights would be tantamount to rewarding her for “sitting in the bushes”.

[35] I do find that he had notice of this retroactive spousal support claim late in 2018 and therefore it is ordered that he is responsible for retroactive spousal support from January 1, 2018 to date, with credit of course for the amounts paid by him monthly in that period.