



COURT OF APPEAL FOR ONTARIO

CITATION: Savage v. Savage, 2019 ONCA 984

DATE: 20191213

DOCKET: C66077

Rouleau, Roberts and
    Harvison Young JJ.A.

BETWEEN

Carla Linn Savage

Applicant (Appellant)

and

Michael Anthony Savage

Respondent (Respondent)

Josh Glieberman, for the appellant

Michael H. Tweyman, for the respondent

Heard: November 13, 2019

On appeal from the order of
    Justice Susan Woodley of the Superior Court of Justice, dated September 26,
    2018.

REASONS FOR DECISION

A.

Overview

[1]

The appellant appeals an order which terminated the spousal support
    payable to her by the respondent. She appeals on the grounds that, first, the
    trial judge erred in finding that the respondents retirement had constituted a
    material change in circumstances, and second, that even if she did not err in
    so finding, the trial judge erred in terminating spousal support in the
    circumstances.

[2]

For the following reasons, the appeal is dismissed.

B.

Factual Background

[3]

The facts may be briefly summarized. The parties separated in 2012
    following an approximately 25-year marriage which produced three children who
    are now adults. In 2015, shortly before a scheduled trial, the parties settled
    the outstanding issues between them as set out in the consent order of Nicholson
    J. (the consent order). This order equalized the parties assets and provided
    for the payment of non-term limited spousal support by the respondent to the appellant
    in the amount of $1,650 per month. Notably, the order provided that either
    party could seek a change in spousal support based on material change, whether
    the change was foreseen or foreseeable, unforeseen or unforeseeable.

[4]

The respondent brought a motion to change in March 2017 on the basis
    that he intended to retire. On December 31, 2017, at age 57, the respondent retired
    with a full pension. The appellant had retired from her public service position
    in May 2017 when she was 56 and eligible for a full pension.

C.

The Reasons Below

[5]

The trial judge found that the respondents retirement constituted a
    material change in circumstances. She set out the test as whether a change had
    occurred which, if known at the time of the last order, would have resulted in
    a different outcome. Having found a material change in circumstances, she then considered
    the means and needs of the parties pursuant to s. 17 of the
Divorce Act
,
    R.S.C. 1985, c. 3 (2
nd
Supp.). Given her assessment, she terminated
    the support obligation.

D.

Law and Analysis

[6]

The appellant agrees that, in order to succeed on this appeal, she must
    demonstrate an error in principle, a significant misapprehension of the
    evidence, or that the award is clearly wrong:
Hickey v. Hickey
, [1999]
    2 S.C.R. 518, at para.  11.

(1)

The Trial Judge Did Not Err in Finding a Material Change

[7]

The appellant argues that the respondents retirement was early,
    voluntary and unreasonable and could not therefore constitute a material
    change. She argues that the fact that the original consent order did not
    reference retirement should be taken to mean that it was specifically exempt
    from consideration as a material change. She emphasizes that the respondent had
    wanted a clause that specifically provided that his retirement would constitute
    a material change in circumstances. That clause was not agreed to and was not
    included in the order.

[8]

We disagree with the appellants position. The trial judge considered
    all the evidence before her on this issue which was fully argued. She observed
    that the original consent order did not reference retirement at all. She noted,
    however, that the consent order did provide that either party could request a
    review or change to spousal support in the event of a material change, whether
    foreseen or foreseeable, unforeseen or unforeseeable. She found that in the
    circumstances of this case, the respondents retirement constituted a material
    change.

[9]

The case law cited by the appellant can be distinguished. For example,
    in
Haworth v. Haworth
, the order expressly provided for spousal
    support to be paid each and every month thereafter until the [payee] dies:
    2018 ONCA 1055, 145 O.R. (3d) 74, at para. 18, leave to appeal refused, [2019]
    S.C.C.A. No. 149. By contrast, the consent order in this case anticipated that
    the support issue could be reopened if the circumstances materially changed,
    even if this change was foreseeable.

[10]

In addition, the trial judge declined to find that the respondent had
    opted for early retirement at age 57 in order to avoid paying spousal support.
    She considered the circumstances, including the 27-year span of his teaching
    career, the drain inherent in the teaching profession and his evidence that
    retiring when he became eligible for a full pension had been a goal that had
    pushed him to continue teaching. She also found that his decision to retire
    based on eligibility for a full pension could not be said to be unreasonable in
    light of the fact that the appellant herself had retired at age 56 in 2017 on
    the same basis. She specifically noted that there was no evidence that he had
    retired to avoid spousal support. The respondent had planned to retire when he
    became eligible for a full pension upon the rule of 85 and the trial judge accepted
    his evidence (which was contrary to the appellants evidence on the point) that
    the appellant knew this.

[11]

These factual findings were open to the trial judge on the evidence
    before her. In particular, the appellants submission that the trial judge erred
    in placing insufficient weight on the absence of a reference to retirement in
    the consent order must be rejected. The trial judge considered the evidence
    before her and applied the correct law in interpreting the consent order.

(2)

The Trial Judge Did Not Err in Terminating Support

[12]

The appellant argues that the trial judge erred in terminating support. The
    heart of her argument is that five years of spousal support was insufficient
    compensation for her income (and thus pension) disadvantages that arose from their
    marriage. They had been married for over 25 years during which time the
    appellant took maternity leaves and worked part-time. She says that the trial
    judge erred in considering the net worth of the parties as part of the needs
    and means analysis. At the time of the trial, the respondent had pension income
    of $49,538 annually of which $9,572 had not been equalized. However, he had no
    capital assets. The appellants pension income was $29,300.28 annually of which
    $3,864 had not been equalized but she had approximately $500,000 in
    investments.

[13]

We see no error in the trial judges consideration of the parties
    assets and her finding that income from capital should be imputed to the
    appellant. It was relevant to an assessment of the relative incomes of the
    parties. While it might have been preferable for the trial judge to indicate
    precisely what amounts she was imputing to the appellant for income from
    capital, it is clear from the percentage figures to which she refers that the
    result of the application of a reasonable return rate would effectively
    equalize the parties pension incomes.

[14]

The trial judge also referred to the fact that the appellant has
    repartnered under the heading of Means and Needs as follows:

In addition to imputing income to
    Carla on account of her capital assets, income may be imputed to Carla on
    account of the financial benefits that she receives as a result of her re-partnering
    .

[15]

The appellant argues that this constitutes an error in that the trial
    judge imputed income to the appellant on the basis that she is living with a
    new partner, despite the fact that the new relationship was only approximately two
    and a half years old. We disagree. Viewed in context, it is apparent that the
    trial judge did no more than consider this financial benefit as a general
    factor in assessing the parties means and needs. She stated only that income
    may be imputed on this basis but there is no indication that she actually did
    so. As noted earlier, the income that the appellant can reasonably generate
    from her capital is more than sufficient to cover any disparity in the parties
    retirement income.

[16]

The appellant also argues that in terminating support, the trial judge
    failed to apply the fact that spousal support had been grounded in the
    compensatory rationale. She accepted the appellants evidence that her shorter
    work week had been for the benefit of the family and that this had given rise
    to an economic disadvantage on the breakdown of the marriage which led to lower
    income and pension payments. She also found, however, that this economic
    disadvantage had been fully compensated for by the respondent through both the
    equalization of their assets and the spousal support that had been paid by the
    time of the trial. This finding was open to her on the record, and it is not
    the role of this court to revisit such determinations absent palpable and
    overriding error. We note that this is not a case like some of those cited by
    the appellant where the recipient spouse is disabled or has no income of her
    own, or where the income disparity is very significant.

E.

Conclusion

[17]

The appellant has not demonstrated any error on the part of the trial
    judge in finding that the respondents retirement was a material change and
    that the spousal support should be terminated.

[18]

The appeal is therefore dismissed.

[19]

The appellant shall pay costs of the appeal to the respondent in the
    amount of $7,500 inclusive.

Paul Rouleau J.A.

L.B. Roberts J.A.

A. Harvison Young
    J.A.


