One topic that we write about with some frequency is the importance of providing details to the courts when requesting changes in things such as spousal support or child support. In many cases, when a couple separates, one of the parties may owe the other some or both forms of support either on a retroactive and/or an ongoing basis. The law recognizes that people can experience many changes in their lives and support amounts can be adjusted to reflect these changes. For example, if someone loses a job or is forced to take a job that pays less than they are accustomed to, they could ask the court for a variance in their support obligations. However, as we see in a recent decision from the Ontario Superior Court of Justice, simply saying things have changed is likely not enough to demonstrate they have.
Husband claims he can no longer earn the income he previously earned
The parties involved were married in 1989 and raised three children before separating in 2005. This led to a divorce in 2006. However, the divorce was short-lived, and they were remarried in 2010. Their second marriage lasted until December 2019, at which time they separated again. In total. They cohabited for 27 out of 30 years.
They had a number of issues to work through following their second separation, but this post will focus on the spousal support issues specifically.
The husband used to work as a welder for the Ontario Power Generation (“OPG”). He retired in 2016, during the parties’ second marriage. However, following his retirement, he was able to obtain contracts to work while still collecting his pension. This led to him enjoying a significant income. For example, in 2021, he earned $262,977, with only $73,000 of that coming from his pension. The wife made significantly less money following her retirement as a registered practical nurse, where she received just under $31,000 per year.
A temporary spousal support order was put in place in April 2001, during the time the husband was working as well as collecting his pension. As a result, he was ordered to pay $6,052 per month in spousal support. At the time of the trial, the husband was looking to have the temporary spousal support order varied on an interim basis prior to their ultimate divorce. The husband stated that he is no longer able to work contract work for OPG, and even if he was able to, he planned to purchase a farm to operate rather than return to work.
Can the husband demonstrate a material change in circumstances?
The husband says there has been a material change of circumstances in that his most recent OPG contract ended in December 2021 and that no more contracts will be made available to him. He told the court he would notify his wife if additional work was offered, but as noted above, he planned to purchase and operate a hobby farm for the next phase of his retirement.
The wife was critical of the husband’s request, telling the court he had failed to prove that no future contracts would be offered to him. In response to this, the husband claimed there is a policy within OPG that states contract workers cannot work any longer than three years at a time. He said this was the reason being a six-month layoff he took in the summer of 2020 and that the most recent lack of contract work was the result of less demand for contract workers. Additionally, he said that his hobby farm plans would take up the majority of his time, and he anticipated the farm would run at a deficit for the first few years. Finally, he said physical health issues, including a recent diagnosis of diabetes, won’t allow him to do the type of work he had done with OPG.
The court is critical of the lack of documentation
The husband provided the court with a reply affidavit in which he stated OPG had changed their policies and that the work he had been performing was not being offered to younger/current employees of the utility. However, he failed to provide any documentation to support that position. The court said. “If this is his position, then it was incumbent upon the husband to take steps to get this evidence before the court.” The husband said he did ask for documentation from OPG but was unable to get it at short notice. The court was not sympathetic to his failure to act in a timely manner. Had he attempted to obtain said records in a timelier fashion, or had he tried reaching out to multiple contacts, he may have been more successful. In fact, the court said that if the documents did exist in written form (as he said they did), he could have pursued a motion for the production of it or, in the alternative, summoned a witness from OPG to testify that such a policy exists.
Finally, the court was not entirely convinced that the husband’s health troubles would prevent him from doing the type of work he had been doing with OPG since his plan to run a hobby farm would have been more labour intensive than the work he was doing.
For these reasons and more, the court dismissed the husband’s motion, but the parties will have a chance to revisit the issue again when they go through a full divorce trial. In the meantime, the case serves as a good example of the importance of properly supporting a position with relevant documentation when appearing before a court.
Contact the Divorce Lawyers at Howie Johnson Barristers & Solicitors for Assistance with Spousal Support Variations
The experienced family and divorce lawyers at Howie Johnson Barristers & Solicitors in Windsor have over 25 years of experience helping clients with all matters related to family law, including spousal support matters. If you are concerned about matters related to financial disclosure or the division of assets, please contact us online or by phone at 519-973-1500 to book a confidential consultation with one of our family lawyers.