



COURT OF APPEAL FOR ONTARIO

CITATION: Haworth v. Haworth, 2018 ONCA 1055

DATE: 20181220

DOCKET: C65157

Doherty, Miller and Fairburn JJ.A.

BETWEEN

Brenda Winnifred Haworth

Applicant (Appellant)

and

John David Haworth

Respondent (Respondent)

Brenda Haworth, in person

Mark A.B Frederick, for the respondent

Heard: November 29, 2018

On appeal from the
    order of Justice Timothy Minnema of the Superior Court of Justice, dated January
    9, 2018, with reasons reported at 2018 ONSC 159.

REASONS FOR DECISION

(I) Overview

[1]

The parties separated in 1985 after a 17-year marriage. They agreed on minutes
    of settlement in 1991. Their agreement is reflected in a divorce judgment from
    that same year.

[2]

The respondent brought a motion to vary the divorce judgment, but the appellant
    did not appear. The respondent asked for changes to various provisions,
    including clauses relating to insurance and security for payment of spousal
    support. The motion was granted and the divorce judgment varied accordingly on
    October 5, 2015 (the 2015 order).

[3]

In the fall of 2017, the respondent brought a further motion to change
    the 1991 divorce judgement. This time he asked to be relieved of his spousal
    support obligations. The appellant opposed that motion and, at the same time,
    sought to have the 2015 order varying the divorce judgment set aside. This is
    an appeal from the order: (1) dismissing the appellants motion to have the
    2015 order set aside; and (2) granting the respondents motion, decreasing the
    spousal support from $4,000 to $1 per month.

(II) The Motion to Set Aside the
    2015 Order

[4]

The appellant claims that the motion judge erred in dismissing her
    request to have the 2015 order set aside. She advances the same argument in
    this court that she did before the motion judge. She says that she did not
    receive procedural fairness given that she had no notice of the original motion
    to change.

[5]

The motion judge gave numerous reasons for refusing to set aside the
    2015 order. He was satisfied that the appellant knew about the hearing long
    before it occurred and was properly served with all motion materials. Moreover,
    the motion judge found that the appellant did not have an arguable defence on
    the merits. Nor did she move promptly to have the judgment set aside.

[6]

In our view, the motion judge considered all relevant criteria and
    provided convincing reasons for why the 2015 order should not be set aside. We
    see no error in his approach.

(III) The Motion to Decrease
    Spousal Support

[7]

The appellant also appeals from the motion judges decision to vary the
    respondents support obligation. The divorce judgment arose from minutes of
    settlement that had been reached by the parties. They had agreed upon the
    respondents support obligations to the appellant. That agreement had been
    endorsed by the court in the 1991 divorce judgment, requiring the respondent to
    pay spousal support in the amount of $4,000 per month until the [appellant]
    dies.

[8]

The appellant argues that there is no basis upon which this agreement,
    distilled into a court order, can be changed and, therefore, the motion judge
    erred in varying the support from $4,000 to $1 per month. The appellant
    contends that, even in the face of a material change in circumstances, an agreement
    is an agreement and the support obligation cannot be altered.

[9]

Although we disagree that the support obligation in this case was not
    susceptible to change, we find that the motion judge erred in two ways in
    arriving at the change from $4,000 to $1 per month: (a) in considering what
    constitutes a material change in circumstances; and (b) in failing to give any
    deference to the original order of support.

(a) Threshold of Material Change
    in Circumstances

[10]

The
    respondent had a successful 49 year dentistry practice. When the parties
    entered into their minutes of settlement and the divorce judgment issued in
    1991, the respondent was earning between $250,000 and $300,000 per year. As
    retirement approached, the respondent put the appellant on notice that he would
    eventually seek to have the spousal support terminated. Once he was retired,
    and the respondents income had dropped to $65,000 per year (not including
    interest and investment income), the respondent brought the motion. That motion
    was ultimately decided when the parties were 73 years of age.

[11]

In
    deciding to change the spousal support from $4,000 to $1 per month, the motion
    judge concluded that there had been two material changes in circumstances. He
    found that the most significant material change was the appellants decision
    not to seek employment since the separation. Although the motion judge said
    that there was no obligation on the appellant to become self-sufficient, there
    was an obligation on her as a spousal support recipient to make reasonable
    efforts to contribute to her own support. She had not done so. Indeed, as
    pointed out by the motion judge, the appellant admitted in her motion materials
    that she had stopped working after the birth of their second child and that she
    was certain that the settlement would provide enough income for her to
    structure her post-divorce life as wanted.

[12]

The
    motion judge concluded that the second material change in circumstances arose
    from the respondents retirement and the corresponding substantial decrease in his
    annual income. Given that the respondent was 72 years of age when he retired,
    this was not a situation where the payor spouse took an early retirement to
    avoid support obligations. Rather, the respondent retired at a reasonable age
    and his new $65,000 base income was to be derived from RRIF withdrawals and his
    CPP and OAS entitlements. Even if one were to add the amount that may be
    derived from the husbands investments, at an annual rate as high as five
    percent, his income would not approach his earnings in 1991 dollars.

[13]

We
    disagree that the appellants failure to seek employment since 1991 constitutes
    a material change in circumstances. The clear wording of the divorce judgment was
    that spousal support would continue to death. The appellant was entitled to
    rely upon that judgment. The respondent waited far too long to raise the
    appellants decision not to seek gainful employment until an age when she was effectively
    precluded from correcting the situation.

[14]

We
    would, however, agree with the motion judge that the respondents substantial
    decrease in annual income does meet the threshold for variation: while the
    agreement specified support for life for the appellant, it also expressly
    contemplated a salary level far exceeding what the respondent will receive in
    retirement. As in
Schulstad v. Schulstad,
2017 ONCA 95, 91 R.F.L.
    (7th) 84, while retirement may have been within the parties contemplation at
    the time, the effect of that retirement was not considered in fixing the amount
    of support. Again, as in
Schulstad
, it would not have been possible
    for the parties, or the judge making the original order, to know what the
    respondents financial circumstances would be at retirement some 25 years
    later.

(b) Deference to the Original Support
    Order

[15]

Having
    found material changes in circumstances, the motion judge went on to consider
    the four objectives that apply to a variation of spousal support under s. 17(7)
    of the
Divorce Act
, R.S.C., 1985, c.3 (2
nd
Supp.)
.
He
    concluded as follows:


a)

Any economic disadvantages to the appellant arising from the marriage
    breakdown had long passed. Indeed, the motion judge concluded that the wife had
    structured her post-divorce life in a way that allowed her to live life to the
    fullest and not work.

b)

The appellant had suffered no adverse financial consequences as a result
    of the childrens care.

c)

To the extent that the appellant was experiencing any financial
    hardship, it did not arise from the marriage but from her own decision not to
    work.

d)

Although the motion judge acknowledged that there was no expectation
    that the wife would obtain employment now that she is in her 70s, he concluded
    that she could rearrange or manage her assets, including residences in France
    and Panama, to secure an increased income stream if desired.

[16]

Having
    regard to those factors, the motion judge reduced the spousal support from
    $4,000 to $1 per month. This effectively amounted to a rescission of the support
    order.

[17]

In
    our view, the motion judge erred in that approach to the variation.

[18]

Conspicuously absent from his reasons is an acknowledgement that the
    original support order  assumed to itself be in compliance with the
Divorce
    Act
objectives  expressly provided for spousal support for
    life: each and every month thereafter until the [appellant] dies.

[19]

As Bastarache and Arbour JJ. said in
Miglin v. Miglin
, 2003 SCC 24, [2003] 1 S.C.R. 303, at para 62
:
    judges making variation orders under s. 17 limit themselves to making the
    appropriate variation, but do not weigh all the factors to make a fresh order
    unrelated to the existing one, unless the circumstances require the rescission,
    rather than a mere variation of the order. (See also:
L.M.P. v.
    L.S.
, 2011 SCC 64, [2011] 3 S.C.R. 775, at para. 47.) The
    fact is that the spousal support order
reflected what had been agreed
    upon by the parties and that order was only one component of a larger
    agreement.

[20]

When
    the minutes of settlement, as endorsed by the divorce judgment, are read
    contextually, the parties agreement on support for life makes more sense. Using
    the original support order as the starting point, it is apparent that the
    on-going support amount of $4,000 per month was not just for compensatory support.
    Indeed, another provision in the order set out $40,000 expressly for
    compensatory support. This suggests that the monthly support provision
    contemplated at least some non-compensatory entitlement.

[21]


The variation to spousal support had to be considered against the
    backdrop of the original order which was arrived upon in the context of a
    broader agreement. This was not a case that required a rescission of the
    original support order. Instead, the motion judge should have used the original
    support order and varied it only to the extent required by the change:

Pustai v. Pustai
, 2014 ONCA 422, 47 R.F.L. (7th) 56,
    at para. 26. The respondents decreased income, combined with the motion judges
    finding that the appellant does not face economic hardship, were relevant
    considerations in determining the extent of the variation.

[22]

Accordingly,
    we would reduce the previously ordered spousal support in proportion with the
    respondents decreased income. Although the
Spousal Support Advisory
    Guidelines
(
SSAG
s) became available long after the time of the
    parties agreement, they still provide some insight into the level of agreed
    upon support back then. Applying the
SSAG
s to the parties respective
    incomes helps put the original support order in context. Taking into account
    the 17-year marriage, the parties ages, an earned income of $275,000 per year
    for the respondent at the time (to use the mid-point of his salary range) and attributing
    no income to the appellant, yields roughly $6,000-8,000 per month for the appellant
    for approximately 8.5  17 years.

[23]

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

(IV) Conclusion

[24]

We would set aside the order reducing the spousal support to $1
    and make a new order reducing the spousal support from $4,000 per month to $850
    per month for life.

[25]

Given the appellants mixed success on appeal, we would vary the
    trial judges costs order, requiring that the appellant pay the respondent $8,000
    (instead of $26,000) in costs.
In light of the mixed success
    on appeal, no costs will be ordered.

Doherty J.A.
B.W. Miller J.A.
Fairburn J.A.


