Appeals, Spousal Support, Retirement

In most cases, an application to vary support brought two-and-a-half years prior to the alleged change in circumstances would run counter to the fundamental principle that a material change must have already occurred in order for a court to have jurisdiction to vary a final order (at para. 28). There is a risk in such a case that the financial disclosure and other evidence in support of an alleged material change will be speculative due to its prematurity.

Here, following a 24-year marriage, the court made an order in 1996 requiring the husband to pay ongoing spousal support and to maintain insurance policies in favour of the wife. In January 2014, the husband, now aged 70, brought an application to terminate his support and life insurance obligations effective June 1, 2016, on the basis of a planned retirement. The husband’s application was granted and the wife, now age 69, appealed.

While the Court of Appeal would not endorse, as a general principle, the application judge’s encouragement of the early timing of the application to vary, this case was exceptional in that there was evidence to support the conclusion that the husband would indeed retire, that the subsequent change in his income would be very significant, and that there was sufficient financial information to permit the judge to determine that his retirement would be a material change (at para. 27). This ground of appeal was dismissed.

The judge also did not err in finding that the husband’s retirement and reduction in income was a material change in circumstances. While the husband’s retirement was within the court’s contemplation when making the order in 1996, the effect of that retirement was not considered in fixing the amount of support, nor was there any evidence on the record to permit an assessment of the financial impact of retirement (at para. 31). A determination that the wife was entitled to support “forever” could not foreclose the husband’s future application to reduce or terminate his support obligation upon a material change in his financial circumstances. The judge’s findings that the husband was sincere in his proposed retirement and intended to live frugally within his reduced means were available to her (at para. 32): Schulstad v. Schulstad, 2017 ONCA 95 (Weiler, Rouleau and Roberts JJ,A.).

LAO LAW – The Bottom Line in Family Law

Sole or Joint Custody and Access

A parent cannot disengage from attempting any meaningful effort to communicate with the other parent and then expect to gain sole custody based on an alleged inability to communicate (at para. 31). Here, the parents separated when the child was three. For the first two years of the child’s life, they had shared parenting responsibilities. The mother contended that, several months before separation, the father assaulted her physically and she was afraid of him. The father denied the assault. They separated when the mother left the home with the child without notice and refused to speak to the father. Since then, she had avoided all contact with him. She set the terms of access, which was facilitated through third parties. When the father began a logbook to communicate about the child, the mother saw this as an attempt to control her.

The court found that both parents had the ability to meet the needs of the child, who was happy and well-adjusted. The father’s entries in the logbook were child focused and appropriate. The court could not determine whether the alleged assault had occurred or not. However, it concluded that the mother’s decision not to engage in meaningful communication was not the result of any past domestic violence, but that she chose this course to strengthen her position for sole custody. The court did not believe there was a power imbalance between the parties. The mother had to find a way to communicate with the father effectively in the child’s best interests. The fact that the child had remained with the mother since separation as a result of the mother’s actions did not strengthen her claim for sole custody and primary residence. The court granted joint custody with week-about residence of the child: Bjarneson v. Karambetsos, 2016 ONCJ 684 (Cleghorn J.).

LAO LAW – The Bottom Line in Family Law