



COURT OF APPEAL FOR ONTARIO

CITATION: Schulstad v. Schulstad, 2017 ONCA 95

DATE: 20170203

DOCKET: C61349

Weiler, Rouleau and Roberts JJ.A.

BETWEEN

Campbell Karl Schulstad

Respondent (Applicant)

and

Diann Borden Schulstad

Appellant (Respondent)

Pam MacEachern, for the appellant

Ron Paritzky, for the respondent

Heard: November 7, 2016

On appeal from the order of Justice L. Lacelle of the Superior
    Court of Justice, dated October 23, 2015.

Roberts J.A.:

[1]

The appellant wife appeals the order terminating the respondent
    husbands obligations to continue to pay spousal support and maintain life
    insurance for her benefit, past the respondents retirement date of June 1,
    2016.


Background

[2]

The appellant is 69 years old and the respondent is 70. They were
    married for over 24 years when they separated in 1990. They have one child who
    is now an independent adult.

[3]

The appellant resides in Ontario and has not worked outside the home
    since before their separation. The respondent resides in Kentucky, in the United
    States, where he has enjoyed a very successful and well-remunerated career as a
    general surgeon.

[4]

On July 30, 1996, Byers J. ordered the respondent to pay spousal support
    of $7,500 CAD per month, indexed each year based on the Consumer Price Index
    for Canada, and to maintain insurance policies in favour of the appellant. The
    support order was based on both compensation and need, recognizing the parties
    long marriage, the appellants sacrifices in supporting her husband while he
    completed medical school, and the appellants physical and psychological
    difficulties at that time.

[5]

At the time of Byers J.s order, the respondent was working as a general
    surgeon earning an income of $275,000 CAD. His income over the years has been
    well in excess of $200,000 USD. For example, his 2014 income was $288,836 USD.

[6]

In January 2014, the respondent brought an application to terminate his
    spousal support and life insurance obligations effective June 1, 2016, on the
    basis that he was planning to retire in June 2016. He also sought to reduce
    these obligations leading up to his retirement date.

[7]

At the time of the respondents application, he was paying the appellant
    over $10,000 CAD per month in spousal support and maintaining life insurance
    policies at a monthly cost of about $300 USD.

The Application Judges Decision

[8]

The application judge heard the matter in August 2015, ten months before
    the respondent intended to retire.

[9]

The application judge accepted that the respondent was going to retire
    from employment in June 2016 and held that he was acting in good faith in
    seeking to retire.  She stated at para. 28 of her reasons:  I do not find the
    motion is premature, and rather, find that the Applicants timing in bringing
    it was a responsible approach to the issue.

[10]

She also accepted the respondents evidence that his income would be
    reduced from an annual salary of over $250,000 USD to an annual income from
    pensions and investments of about $35,000 to $40,000 USD. During his oral
    testimony, the respondent estimated his annual pension income would be about
    $30,000 USD, plus a small amount of income from savings, for a total of about
    $35,000 to $40,000 USD per year.

[11]

The application judge concluded that the respondents approaching retirement,
    and consequent reduction in income, was a material change in circumstances
    since Byers J.s order.

[12]

The application judge determined that the parties respective assets and
    income would be about equal after the respondents retirement. Therefore, the
    application judge terminated the respondents spousal support and insurance
    obligations, effective on the anticipated date of his retirement in June 2016.

Standard of Review

[13]

An application judges order for spousal support is entitled to
    significant deference on appeal. An appeal court is not entitled to interfere
    with a spousal support order simply because it would have balanced the relevant
    factors differently or arrived at a different conclusion:
Hickey v. Hickey
,
    [1999] 2 S.C.R. 518, at paras. 10-12. However, an appeal court must intervene
    where the application judges reasons disclose an error in principle, a
    significant misapprehension of the evidence, or if the award is clearly wrong:
Hickey
,
    at para. 11.





Discussion of the Issues

[14]

The appellant raises the following issues:

(a)        Did the application judge err
    in considering the respondents application because it was premature?

(b)        Did the application judge err
    in finding that the respondents retirement and reduction in income were a
    material change in circumstances?

(c)        Did the application judge err
    in finding that the parties would be in financially similar circumstances after
    the respondents retirement?

[15]

For the reasons that follow, I would not give effect to the appellants
    submissions on the first two issues, but agree with her on the final issue. In
    my view, the application judge erred in finding that the parties would be in
    financially similar circumstances after the respondents retirement.

Analytical Framework

[16]

It is helpful to consider the issues on this appeal in the context of
    the relevant legislation and jurisprudence.

[17]

Section 17(a) of the
Divorce Act
, R.S.C. 1985, c. 3 (2
nd
Supp.) provides that a court of competent jurisdiction may make an order
    varying, rescinding or suspending, prospectively or retroactively a support
    order or any provision thereof on application by either or both former
    spouses.

[18]

Before a variation order in respect of spousal support order can be
    made, s. 17(4.1) of the
Divorce Act
requires that:  the court shall
    satisfy itself that change in the condition, means, needs or other
    circumstances of either former spouse has occurred since the making of the
    spousal support order or the last variation order made in respect of that
    order, and, in making the variation order, the court shall take that change
    into consideration.

[19]

The Supreme Court of Canada established the analysis to be applied by
    the court in considering a variation application in
Willick v. Willick
,
    [1994] 3 S.C.R. 670, at p. 688, as follows:

The approach which a court should take is to determine first,
    whether the conditions for variation exist and if they do exist what variation
    of the existing order ought to be made in light of the change in circumstances.

In deciding whether the conditions for variation exist, it is common ground
    that the change must be a material change of circumstances.

[20]

With these general principles in mind, I turn to consider each of the
    issues in turn.

(a)     Did the application judge
    err in considering the respondents application because it was premature?

[21]

The issue of prematurity is an issue at the first stage of the
Willick
analysis. In other words, prematurity is an issue impacting the threshold
    question of whether or not there has been a material change in circumstances. It
    is well-established that any decision to vary must not be made in accordance
    with events which may or may not occur:
Messier v. Delage
, [1983] 2
    S.C.R. 401, at p. 416. An application to vary will be premature if based on
    speculative or uncertain changes in circumstances:
Dufresne v. Dufresne
,
    2009 ONCA 682.

[22]

The appellant submits that the application judge erred in considering
    the respondents application because it was premature; the respondent had not
    yet retired and was unlikely to retire given that his monthly expenses well
    exceeded his projected monthly income. The appellant relies on
Vaughan v.
    Vaughan
, 2014 NBCA 6, 415 N.B.R. (2d) 286, for this submission.

[23]

I do not agree. In the particular and fact-specific circumstances of
    this case, it was open to the application judge to decide that the respondents
    application was not premature. This distinguishes the present case from
Vaughan
.

[24]

In
Vaughan
, the payor was 61 years old and his retirement was
    merely speculative. The New Brunswick Court of Appeal set aside an order
    varying the payors spousal support obligation if and when he retired.

[25]

In the present case, the application judge was satisfied on the evidence
    before her that the husbands retirement was a certainty. There was sufficient
    evidence available to the application judge at the time of the hearing to find
    that the respondent would retire in June 2016 at age 70 as planned. The
    respondent had given notice to his employer, and his employer was proceeding
    with a process to replace him.

[26]

The application judge was also of the opinion that there was sufficient
    evidence regarding the parties respective assets and incomes upon the
    husbands retirement to enable her to reach a decision as to whether the
    application was premature. This was a finding that was available to her on the
    evidence. Although her interpretation of this evidence was in error (to which
    issue I return later in these reasons), there is no basis to interfere with her
    conclusion that the respondents application was not premature.

[27]

That said, I would not endorse as a general principle the application
    judges encouragement of the early timing of the respondents application
    because of the potential problems created by premature applications to vary. 
    This case is exceptional in that there was evidence to support the application
    judges conclusion that the respondent would, indeed, retire, that the change
    in income of the respondent and support payments following his retirement would
    be very significant, and that there was sufficient financial information to
    permit the application judge to determine that his retirement would be a material
    change in circumstances.

[28]

In most cases, such an application so far in advance of the alleged
    material change in circumstances will run counter to the fundamental principle articulated
    in both legislation and jurisprudence that a material change must have already
    occurred in order for a court to have jurisdiction to vary a final order.  This
    is because there is a real likelihood that the financial disclosure and other
    evidence in support of an alleged material change in circumstances will be speculative
    due to its prematurity. Encouraging premature, speculative applications to vary,
    which lack the necessary solid and certain evidentiary foundation, will simply
    increase the already extremely high costs of litigation in family law
    proceedings.

(b)     Did the application
    judge err in finding that the respondents retirement and reduction in income
    were a material change in circumstances?

[29]

The appellant submits that the respondents proposed retirement could
    not constitute a material change in circumstances because it was within the
    contemplation of the parties and Byers J. when the original spousal support
    order was made. The appellant refers to Byers J.s statement that the appellant
    is entitled to spousal support forever.

[30]

She also submits that, regardless of whether or not the respondent was
    acting in bad faith by trying to frustrate his support obligations, his
    decision to retire was unreasonable. The respondent still has the capacity to
    work, and has failed to financially prepare for retirement. By this point in
    his life, the respondent ought to have amassed significantly more assets to
    provide better post-retirement income. The respondents retirement constitutes voluntary
    unreasonable unemployment, as in
Bullock v. Bullock
(2004), 48 R.F.L.
    (5th) 253 (Ont. S.C.) and
Innes v. Innes
, 2013 ONSC 2254 (S.C.).

[31]

I would not accept these submissions. While the respondents retirement
    was within Byers J.s contemplation, the effect of that retirement was not
    considered in fixing the amount of support nor was there any evidence in the
    record to permit him to assess the financial impact of retirement. Byers J.s
    determination that the appellant was entitled to spousal support forever
    could not foreclose the respondents future application to reduce or terminate
    his support obligations upon the material change in his financial circumstances
    caused by his complete retirement from remunerative employment. Indeed, Byers
    J. appears to have alluded to this possibility when he cautioned the parties
    that if the respondent stops working, the money stops.

[32]

Further, the application judges findings that the respondent was
    sincere in his proposed retirement and intended to live frugally within his
    reduced means were available to her on the record.

[33]

While the respondents financial planning certainly could have been
    better, it was within the application judges discretion to find that the
    respondents retirement at age 70, after a long and stress-filled career as a
    surgeon, was reasonable in the circumstances. This is not a case like
Bullock
or
Innes
where the payors voluntarily took early retirement at age 62.

(c)     Did the application
    judge err in finding that the parties would be in financially similar
    circumstances after the respondents retirement?

[34]

The appellant submits that the application judge erred in concluding
    that the parties present financial circumstances were relatively equal, such
    that spousal support should be terminated.

[35]

I agree. The application judge erred in finding that the factors that
    resulted in economic disadvantage to the appellant during the marriage and
    after its breakdown no longer existed and that the lost advantage had been
    recovered by the appellant.

[36]

In paras. 41-42 and 44-45 of her reasons, the application judge set out
    her conclusions on this issue:

In this instance, I find that the [respondent]
    and [appellant] are in substantially different positions than at the time the
    original order was made. They are now in similar financial positions. The [appellant]
    claims a net worth of ... $942,618.42.  In addition to this asset base, the [appellant]
    receives Canada Pension Plan benefits. While currently her entitlement to Old
    Age Security is clawed back, those funds will be available to her if support
    payments cease.

The [respondents] most recent
    financial statement of July 2015 indicates he has a net worth of $819,873.88 in
    U.S. funds. Since he will be living his retirement in the United States,  the
    value of those funds in Canadian dollars is irrelevant to this analysis.



I accept the [respondents]
    projection of his retirement income as being in the range of $35,000.00 to
    $40,000.00 per year. Manifestly,  he cannot make monthly support payments in
    excess of $10,000.00 in Canadian funds.

I find that maintaining this
    level of support will result in an inequitable sharing of the economic impact
    of the marriage and its breakdown. While the [appellant] is entitled to
    maintain a reasonable standard of living in retirement, her capital assets and
    government pensions will permit her to have a similar income to that of the
    [respondent] if the spousal support order is terminated upon the [respondents]
    retirement.

[37]

The application judge appears to have unduly focussed on the parties
    respective net worth. In doing this, she made a significant error by failing to
    appreciate the material disparity between the parties expected incomes.

[38]

More specifically, the following errors led the application judge to
    mistakenly believe that the appellants assets and government pensions would
    permit her to have a similar income to that of the respondent.

[39]

First, the application judge did not consider the value of the
    respondents net worth and anticipated retirement income in Canadian dollars. The
    application judge held that the Canadian dollar value was irrelevant because
    the respondent lived in the United States. This was an error. By failing to convert
    the respondents net worth and anticipated retirement income into Canadian
    dollars, the application judge could not fairly compare them to those of the
    appellant and thereby assess whether the parties were in similar financial
    positions.

[40]

Second, the application judge miscalculated the respondents potential
    investment income from his assets and treated the parties assets differently.
    As stated above, she accepted the respondents evidence that his annual pension
    income would be about $30,000 USD and his other income would be about $5,000 to
    $10,000 USD, for a total of $35,000 to $40,000 USD.

[41]

The respondents estimate of an expected return on his investments of
    between about 1 to 2% appears to be inconsistent with the evidence of what, in
    the absence of any other explanation, seems to be his actual return on
    investments in the record. For example, the respondents IRA Account grew from
    $416,274.70 in 2014 to $467,185.00 in 2015, reflecting an increase of over 10%
    in that year. There is no indication in the respondents statement of his
    expenses that he contributed anything to his IRA Account, suggesting, in the
    absence of any other explanation, that the increase must largely represent a
    return on investment. If a 10% return on investment is applied, it would result
    in the respondent having notional investment income of over $50,000.00 USD,
    rather than $5,000 to $10,000 as the respondent estimated. Accepting the
    appellants application of a USD/CAD currency conversion rate of 1.3, the
    respondents potential retirement income of $50,000 USD would convert to
    $65,000 in Canadian dollars.

[42]

I also note that the respondents modest estimated annual rate of return
    on his investments has not been adopted in recent case law. For example, in
Berta
    v. Berta
, 2016 ONSC 5723, a 6% interest rate was used; this court in
Mason
    v. Mason
, 2016 ONCA 725, 403 D.L.R. (4th) 64, attributed a 4.5% interest
    rate; and the British Columbia Court of Appeal

in
Parrett v.
    Parrett
, 2016 BCCA 151, 78 R.F.L. (7th) 1, applied a 4% interest rate.

[43]

Further, in accepting the respondents estimate, the application judge erroneously
    excluded the potential income that could be generated from the notional
    investment of the equity from the respondents house. However, in contrast, the
    application judge included the value of the appellants house while assessing
    her income potential.

[44]

As identified by the application judge at para. 42, the respondents net
    worth is $819,874 USD, including the value of his house. This figure is based
    on his 2015 financial statement, showing that his assets of $918,869 USD minus
    his debts of $98,995 USD are equal to $819,874 USD. The respondents net worth
    of $819,874 USD includes non-income producing assets totalling $46,950 USD
    (paintings, sculptures, a computer, and cars). After subtracting these
    non-income producing assets from the respondents net worth, the value of his
    income-producing assets is $772,924 USD. Again accepting the appellants
    application of a USD/CAD currency conversion rate of 1.3, the respondents net
    worth of $819,874 USD would be equivalent to $1,065,836 CAD. His
    income-producing assets of $772,924 USD would have a value of about $1,004,801
    CAD.

[45]

The appellants net worth is $942,618 CAD, including her house. Her 2015
    financial statement shows that her assets of $893,695 CAD minus her debts of
    $51,077 CAD are equal to $842,618 CAD. At the time of the hearing before the
    application judge, the appellants net worth was closer to $942,618 CAD,
    because the value of her home had increased by $100,000 CAD. The appellants
    net worth of $942,618 includes non-income producing assets totalling $10,500
    (furniture and a tractor). After subtracting these non-income producing assets,
    the value of the appellants income-producing assets would be $932,118 CAD.

[46]

The difference of $72,683 between the appellants and the respondents
    respective net income-producing assets is material.  The application judge
    erred in not taking this material difference into account in her analysis of
    whether spousal support and insurance should be reduced or terminated.

[47]

Third, the application judge did not recognize that the respondents
    yearly pension income of $30,000 USD is significantly greater than the
    appellants annual Canada Pension Plan (CPP) of about $3,500 CAD or any
    potential Old Age Security (OAS) income, and that the disparity is even
    greater once the $30,000 USD is converted into Canadian dollars, which amount, using
    a 1.3 conversion rate, becomes $39,000 CAD.

[48]

Given the respondents materially larger assets and potential income, it
    was an error for the application judge not to assess whether the spousal
    support and insurance should be reduced rather than terminated.

[49]

As I earlier indicated, I would not interfere with the application
    judges findings that the respondents retirement and dramatic reduction in
    income will result in a material change in circumstances.  The respondents
    material change in circumstances must necessarily affect the amount of spousal
    support and insurance that the respondent should be required to pay. The
    question is what should the reduction be?

Spousal Support

[50]

Based on the evidence before her, the application judge erred in failing
    to conclude whether the respondents obligations for spousal support should be
    reduced rather than terminated. However, to be fair to the application judge,
    the appellants steadfast position on the application, as on appeal, was that
    the application for termination or reduction of spousal support was premature
    and should be dismissed.

[51]

In my view, the evidence establishes that the initial compensatory and
    need bases for the appellants entitlement to support continue to exist. The
    disparity in the parties potential incomes and income-producing assets is
    indicative of the appellant suffering economic disadvantage arising from her
    role during the parties long-term marriage and its breakdown. In contrast, the
    respondent gained a significant economic advantage from the marriage that has
    not been affected by the marriage breakdown. A finding that the appellant is no
    longer entitled to support would undermine the objectives under s. 17(7) of the
Divorce Act
.

[52]

The
Spousal Support Advisory Guidelines
(Ottawa: Department of
    Justice Canada, 2008) (the SSAGs) by Carol Rogerson and Rollie Thompson are a
    useful tool in calculating spousal support on a variation application:
Gray
    v. Gray
, 2014 ONCA 659, 122 O.R. (3d) 337.

[53]

The SSAGs provide a number of factors to consider in determining the
    appropriate quantum of support within the ranges. The three most relevant
    factors in this case are the strength of the appellants compensatory claim;
    her need; and the respondents needs and ability to pay.

[54]

Section 9.1 of the SSAGs states, [a] strong compensatory claim will be
    a factor that favours a support award at the higher end of the ranges both for
    amount and duration. In accordance with compensatory principles, the more the
    recipient gave up in the paid labour market, the higher support should be.

[55]

The appellant has a very strong compensatory claim. This was a long-term
    traditional marriage where she made significant sacrifices for the respondent.
    During the marriage, she worked to support the family while he finished medical
    school. The family then relocated to Ottawa where the respondent completed his
    residency in general surgery. As Byers J. stated, [t]ogether  they made him a
    doctor. The respondent thereafter continued to further his career working as a
    surgeon while the appellant stayed home to care for their child.

[56]

The issue of need is measured against the parties marital standard of
    living:
Mason
, at para. 201. Section 9.2 of the SSAGs states, [i]n a
    case where the recipient has limited income and/or earning capacity, because of
    age or other circumstances, the recipients needs may push an award to the
    higher end of the ranges for amount and duration.

[57]

The appellant has a continuing need for support relative to the parties
    marital standard of living. As Byers J. stated, [w]e are not talking about
    subsistence living here. This woman was married to a high-earning medical
    practitioner. Further, the appellant continues to have limited earning
    capacity.

[58]

Section 9.4 of the SSAGs addresses the payors needs and ability to pay.
    Need and limited ability to pay on the part of the payor may push an award to
    the lower ends of the range.

[59]

The respondents income and ability to pay will significantly decrease
    post-retirement. The respondents 2015 financial statement shows annual
    expenses greater than his estimated post-retirement income. However, he
    submitted that he will adjust to his reduced income by living more frugally.

[60]

A payors retirement also has a particular impact on the SSAG analysis. Recognizing
    this impact, Rogerson and Thompson state the following in s. 19(e) of the
Spousal
    Support Advisory Guidelines: the Revised Users Guide
(Ottawa: Department
    of Justice Canada, 2016):

Eventually, as we get old enough,
    we all have to live off our capital, to draw down our capital resources to
    pay for our current needs, especially those without pensions. RRSPs have to be
    converted into RRIFs (Registered Retirement Income Funds) or annuities.
    Businesses and farms have to be sold. Interest from investments becomes insufficient
    to fund daily needs.

[61]

Respondents counsel submits that if this court were to find that the
    spousal support should be reduced, the matter should not be sent back for
    determination but that this court should recalculate the appropriate reduction.
    Appellants counsel was concerned that this court did not have sufficient
    information to make that calculation because the respondents post-retirement
    net worth and income are undetermined.

[62]

While the evidence in the record demonstrates that the amount of spousal
    support should be reduced and not terminated, there is insufficient information
    in the record to permit this court to calculate the appropriate reduction in
    spousal support in accordance with the factors required to be applied under s.
    17 of the
Divorce Act
and under the SSAGs.

[63]

For example, the absence of evidence respecting the respondents actual
    investment income, return on his investments, and expenses precludes a
    meaningful calculation of his income for the purposes of determining his needs
    and ability to pay spousal support.

[64]

Moreover, additional evidence concerning the appellants income is
    needed.  At the time of the hearing before the application judge, the
    appellants Old Age Security (OAS) income was being fully clawed back due to
    her spousal support. On appeal, respondents counsel submitted that the
    appellant would begin receiving OAS when support is terminated, raising her
    combined annual CPP and OAS income to at most $12,000. However, the appellant
    did not agree with that figure and there was no evidence as to what the
    appellants OAS income actually is. Further, the appellants August 14, 2015
    financial statement shows monthly income from investments of $94.27 and monthly
    RRSP/RESP withdrawals of $1,863.67. It is uncertain, for the purposes of
    calculating the appellants need for spousal support, what her return on
    investment is with respect to her investments within and outside her RRSP
    account.

[65]

As a result, the question of the appropriate reduction in spousal
    support, having regard to the long-term, traditional marriage, and the
    appellants compensatory and need-based entitlement to support, must be
    remitted back to another application judge of the Superior Court of Justice.

Life Insurance

[66]

The application judge terminated the respondents obligation to continue
    the approximate $300 USD of monthly insurance premiums because of his material
    change in circumstances. For the reasons already given, she erred in failing to
    consider whether the respondents insurance obligations should be reduced,
    rather than terminated.

[67]

According to the summary of benefits provided by the respondents
    insurer, on November 4, 2013, if not terminated beforehand, the respondents
    term life insurance could have continued to 2024, without a change in the monthly
    premiums of $278.30 USD. As the application judge noted, the respondent also
    maintained another policy for accidental death and dismemberment at a modest
    monthly premium.  According to the respondents application, this policy was
    carried at a monthly cost of $18.95 USD.
[1]

[68]

Byers J. originally ordered the maintenance of insurance because of his
    concern about the respondent not paying because of his track record.  However,
    given his material change in circumstances, the respondents ability to pay
    monthly insurance premiums has changed.

[69]

As I earlier noted with respect to the issue of spousal support, on this
    record, I am unable to determine whether the respondent would be able to
    continue or should be ordered to maintain the monthly insurance premiums for
    the life insurance and accidental death and dismemberment policies.

[70]

As a result, I would leave the question of whether the respondents
    insurance obligations should be reduced or terminated to the next application
    judge who hears this matter.

Disposition

[71]

Accordingly, I would allow the appeal and set aside the application
    judges termination of spousal support and insurance.

[72]

The issues of the amount of the appropriate reduction to be made and the
    amount of spousal support to be paid, retroactive to June 1, 2016, as well as
    whether the respondents insurance obligations should be reduced or terminated,
    are remitted back to another application judge of the Superior Court of Justice
    for determination.

[73]

Pending this determination, the respondent shall pay spousal support to
    the appellant in the amount of $1,000.00 per month, retroactive to June 1,
    2016.  This figure shall be adjusted retroactively to June 1, 2016, for any
    overpayment or underpayment, upon the final determination of this issue by the
    Superior Court of Justice.

[74]

If the respondent has not yet cancelled them, unless the appellant
    advises in writing that she does not wish the respondent to continue to
    maintain the insurance policies, he shall continue them until the final
    determination of this issue by the Superior Court of Justice. On providing
    proof of their payment to the appellant, the respondents monthly insurance
    costs shall be deducted from the monthly amount of spousal support of $1,000.00
    otherwise payable to the appellant in accordance with these reasons.

[75]

The appeal is otherwise dismissed.

[76]

With respect to the issue of costs on appeal and below, if the parties
    cannot agree on their disposition, they shall make written submissions of no
    more than two pages, plus costs outlines, as follows:  the appellant shall
    deliver her submissions by February 13, 2017; the respondent shall deliver his
    submissions by February 23, 2017.  There shall be no reply submissions.

Released: February 3, 2017

L.B. Roberts J.A.

I agree K.M.
    Weiler J.A.

I agree Paul
    Rouleau J.A.





[1]

Exhibit D to the affidavit of Jennifer James, sworn August
    18, 2015, in support of the respondents application to vary.


