nan IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Puddifant v. Fraser, 2005 NSSC 340 Date: 20051209 Docket: 1201-51125 Registry: Halifax Between: Eunice Marie Fraser v. Hal James Puddifant Respondent Judge: The Honourable Justice Deborah Gass Heard: June 27, 2005, in Halifax, Nova Scotia Counsel: D. Timothy Gabriel, for the petitioner Terrence R. Cooper, Q.C., for the respondent [1] This is Mr. Puddifant’s application to vary a corollary relief judgment issued August 20, 1998, varied the 20th of August, 2001, amended July 2, 2002 and varied in June 2003. In his amended application dated June 23, 2005, he seeks a termination of spousal support or alternatively a decrease in support with a fixed date for termination. He also seeks costs of the application. [2] The facts are fairly straightforward. The parties were married October 19, 1984. They have one child, Tyler Dean Puddifant, born January 6, 1989. They separated in August 1996, after 12 years of marriage. At the time of the hearing, the applicant and respondent were 46 and 42 years of age respectively. Their 16 year old son has been living with his father since October 1996 except for year (2003 2004) when he lived with his uncle. The parties were divorced in 1998. [3] At the time of the divorce, Mr. Puddifant’s income was approximately $51,000.00 and Ms. Fraser’s was approximately $7,584.00 from Canada Pension Plan disability payments. Paragraph four of the parties’ corollary relief judgment provides for spousal support as follows: 4. The Respondent shall pay to the Petitioner for the support and maintenance of the Petitioner the sum of $600.00 per month which shall be payable in bi-monthly instalments of $300.00 each, the first such payment to be made on July 15, 1998, the second such payment to be made on the last day of July, 1998, and likewise on the 15th and last day of each succeeding month, PROVIDED HOWEVER that in the event the Respondent should elect to apply for and obtain that portion of the Petitioner’s monthly Canada Pension Plan payment in non-taxable benefit payable with respect to the child, then in such an event, the Respondent shall pay to the Petitioner for the support and maintenance of the Petitioner the sum of $800.00 per month, payable in bi-monthly payments of $400.00 each, on the 15th and the last day of each month. All payments shall be made through the Director of Maintenance Enforcement. [4] Before the corollary relief judgment was granted, there was an interim order of $400.00 per month commencing April 1998. [5] Throughout the marriage and continuing to this day, the respondent has suffered from serious mental illness. [6] The applicant retired from the military in July 2004 after 25 years of service. He was in position where he had refused postings outside the province. Although he was not forced to retire, the evidence before me, which is unrefuted, is that if he refused two postings, then he was required to leave. The postings offered were Gagetown with the possibility of deployment to Afghanistan, and Edmonton with potential deployment to Bosnia. His evidence was that his family life came first. His son’s schooling and friends were an issue as his son was then entering high school. His partner was in mid-career as nurse in Nova Scotia. She had child as well to consider. He took the severance package. Mr. Puddifant continues to be solely responsible for the support of the parties’ son. The mother has never been asked or ordered to pay child support. [7] Has there been change in the “... condition, means, needs, or other circumstances of either spouse? [8] The Divorce Act, (1985) provides: 17(1) 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; (3) The Court may include in variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought. (4.1) Before the court makes variation order in respect of spousal support order, 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. (7) variation order varying spousal support order should (a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown; (b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relief any economic hardship of the former spouses arising from the breakdown of the marriage; and (d) insofar as practicable, promote the economic self-sufficiency of each former spouse within reasonable period of time. [9] While the recipient’s income has increased to some extent, in all other respects her circumstances are the same as they were at the time of the granting of the divorce. Although the applicant had some employment since retirement, his income is reduced. [10] Although there is no cure for Ms. Fraser’s illness, it is manageable. She has home and could take in boarders. The applicant believes the respondent can work and has made no effort to do so. However, her effort to take one university course resulted in her hospitalization. Her unchanged circumstances are juxtaposed against the applicant’s decrease in income and his responsibility to meet the needs of their son. [11] At the time of the parties’ divorce, MacDonald, ACJ (as he then was) in Puddifant v. Puddifant [1998] N.S.R. (2d) uned. 102 (S.C.) stated at para. 21: She will have Tyler with her lot under the agreed upon access regime. She will require more money to survive. She should not have to turn to the state unless absolutely necessary. [12] The court also found that to lesser extent the respondent was economically disadvantaged by the breakdown of the marriage. He found that Mr. Puddifant was economically advantaged by the marriage, able to be posted away in pursuit of his career while she assisted with the care of their son. [13] In awarding spousal support, MacDonald noted at para. [28] Much has been said about the fact that Mrs. Puddifant is presently unemployed. She has explained why she cannot work at present. accept Mrs. Puddifant’s evidence in this entirety on this issue. She is not able to be gainfully employed at this time. She is slowly improving and must be cautious. She is doing volunteer work. This will be good test. Hopefully she will be employed some day. believe she wants to be employed. do not accept for minute that she is lazy. She is ill. She is afflicted with terrible illness and Mr. Puddifant must be patient. In conclusion, find that she requires ongoing support. [14] Since the granting of the original order, Mr. Puddifant has left the military in the interests of his family. Their son, Tyler, has spent much less time with his mother than was anticipated by the court at the time. [15] Ms. Fraser is now in receipt of income from her share of the pension, which was just over $58,000.00 upon division. [16] Thus conclude that there has been change in circumstances as required by the Divorce Act before variation can be considered. QUANTUM OF SUPPORT: [17] The applicant’s income is now primarily derived from his pension. [18] As general rule, according to the Supreme Court of Canada in Boston v. Boston, [2001] S.C.R. 413, the payor’s pension income stream that has been divided, should not be included as income for spousal support purposes. [19] Here the respondent has converted her equalized property into income. [20] Ms. Fraser now receives income as follows: CPP $10,752.00 $896.75 per month Investment 3,824.00 Income 318.73 per month Spousal 7,200.00 600.00 per month GST Rebate 342.00 28.50 per month Total $22,118.00 $1,843.98 per month [21] The applicant’s income is now $37,823.46. Of that $4,666.92 is his half of the pension which was divided. His income for spousal support purposes is $33,156.54. Her income (without spousal support) is $14,918.00. The disparity in their incomes since the order of 1998 is now $18,439.50 as opposed to $43,404.00. He has continuing and growing financial responsibility for their teenaged son, whose needs demand more monetary resources now than when he was eight or nine years old. [22] I conclude that the maintenance ought to be reduced to $300.00 per month effective September 1, 2005 to take into account his reduced income and her income derived from the pension division. [23] Having found that Ms. Fraser was entitled and continues to be entitled by virtue of her continuing inability to become self-sufficient, the court must be mindful of the other factors set out in the Divorce Act as considered by the Supreme Court of Canada in Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] S.C.R. 420. There the court ruled that the extent of the spouse’s obligation to meet the other’s financial needs depends on the length of the relationship, the ability to pay, any repartnering of the former spouses, and the other obligations of the parties. [24] Here the applicant has been supporting the respondent for nine years. They were married for 12. He has been the sole provider for their son. [25] Counsel urged the court to consider the Spousal Support Advisory Guidelines. These are not law. The duration of support in 12 year marriage is suggested to be between and 12 years. Exceptions to this “range” have applied where there is disabled spouse. [26] In Coombs v. Coombs (2001) 2001 NSSF 32 (CanLII), 199 N.S.R. (2d) 285 (S.C.) the parties were together for 13 years. On an application to terminate or reduce spousal support, Williams, J. reduced, but did not terminate support after 15 years. The original order was not time-limited and he could find no rationale for doing so, as her need continued, based on her disability. [27] In Bishop v. Bishop [2005] N.S.J. No. 325 (S.C.) LeBlanc, J., in “post guidelines” decision ordered maintenance for 10 years (but total of 11 years) in 13 year relationship where the recipient was unable to work. [28] In Wittich v. Wittich 2005 NSSC 265 (CanLII), [2005] N.S.J. No. 377, 2005 N.S.S.C. 265 (B. MacDonald, J.), the parties were married for ten years but in relationship for six years prior to marriage. They had one child who was in his father’s care. The circumstances of this case were highly unusual. The order was indefinite. [29] In Hamilton v. Hamilton [2002] N.S.J. No. 172 (Hall, J.), the parties were married for five years and the wife was disabled. She had custody of the parties’ son. An order for spousal support was ordered, and although no time limit was placed on the order, it was not indefinite. [30] In Robicheau v. Earle [2004] N.S.J. No. 161 (S.C.) Coady, J. ordered indefinite support in 12 year marriage where the wife was on Canada Pension Plan disability. [31] In all of these cases, except Coombs, supra the orders were in the first instance. It is not unusual for such orders to be indefinite at the outset. This is an application to vary after nine years of continuous support. Each case must be decided on its own facts. [32] The Supreme Court of Canada in Bracklow, supra addressed primarily the entitlement issue. However, the court ruled that even where entitlement is based on “non-compensatory grounds” as is the primary basis here, ongoing need on the part of one spouse, and ability to pay on the part of the other, is not an automatic ground for indefinite support. [33] When the matter was sent back to the British Columbia Supreme Court on November 1, 1999, the result was an order for $400.00 per month for five years resulting in total support paid over eight years for seven year relationship. [34] The other leading case on the issue of spousal support under the Divorce Act is Moge Moge (1992) 1992 CanLII 25 (SCC), 43 R.F.L. (3d) 345 (S.C.C.) L’Heureux-Dubé, J. stated at p. 376: All four of the objectives defined in the Act must be taken into account when .... an order for spousal support is sought to be varied. No single objective is paramount. The fact that one of the objectives, such as economic self-sufficiency, has been attained, does not necessarily dispose of the matter. [35] Likewise, where economic self-sufficiency has not been attained, that does not dispose of the matter either. In other words, the failure to attain self-sufficiency should not automatically result in the continuing obligation of the supporting spouse. [36] This leaves the other considerations set out in subsection (7)(a), (b) and (c). (a) While in this case there was some element of compensatory support at the outset to reduce the economic advantage/disadvantage, that has been more than recompensed by the years of support paid to date and the applicant’s sole responsibility for their child since 1996. (b) When one considers the financial consequences for the care of Tyler, there are not only the hidden costs, but the increased costs as Tyler has moved into adolescence and high school. Those will continue and no doubt increase as Tyler pursues his education. (c) The issue of economic hardship resulting from the breakdown of the marriage was addressed by the lump sum payment referred to in the parties’ agreement at the time of the divorce. [37] am sympathetic to the respondent’s need for support and to the applicant’s need to see an end to this obligation. In considering these four objectives of spousal support, am mindful that none of them holds position of prominence. [38] Notwithstanding the wife’s disability, I cannot conclude that his obligation to her should extend beyond the length of their marriage. conclude this on the basis that he has shouldered the sole responsibility for their son and must balance her need with him having some “light at the end of the tunnel”. [39] The Guidelines are helpful tool at the end of the reasoning process and within the range suggested, there must be basis on which to determine duration. There may well be occasions for support to be indefinite in the case of disabled spouse. Here the original order was indefinite. That does not mean it is permanent. Applying the principles in Moge and Bracklow and considering all four objectives of support it is my view that his responsibility for her maintenance needs to be time limited. It is question of balancing the rights of both parties. Because of her disability, the length of time needs to be at the higher end. The respondent is now 42. She still is relatively young and there is nothing to suggest that it will be impossible for her to earn some income. While she may not be able to become totally self-sufficient, there is no evidence that she is unable to contribute anything at all towards her own support. CONCLUSION: [40] This application was heard in June 2005. The applicant received severance package and his pension was to start in September 2005. [41] There will be an order for maintenance of $300.00 per month effective the 1st of September and payable until August 31, 2008. This represents the duration of their marriage. Should there be change in the parties’ circumstances before then, an application to vary may be warranted, but in any event, the spousal support will end in August 2008.
The husband applied to vary a corollary relief judgment in order to either terminate spousal support or decrease it with a fixed date for termination. The parties were married for twelve years and had been divorced for seven years. The husband had been paying $600 per month in spousal support since the divorce and had recently retired from the military; his current income was now primarily derived from his pension. The wife had serious long-term mental illness and was unable to manage employment. The parties' teenage son was now solely in the husband's care. Spousal support reduced to $300 per month payable for a further three years at which point it will terminate. Notwithstanding the wife's disability, the husband's obligation to her should not extend beyond the length of their marriage; although the wife might not be able to become totally self-sufficient, there was no evidence that she was unable to contribute anything at all towards her own support.