THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2010 SKCA 52 Date: 20100406 Between: Docket: 1851 Richard Howard Williams and Shelley Rose Williams Coram: Cameron, Vancise and Smith JJ.A. Counsel: Richard Howard Williams on his own behalf Terrance Graf, Q.C. for the Respondent Appeal: From: 2009 SKQB 357 (CanLII) Heard: April 6, 2010 Disposition: Appeal allowed Written Reasons: April 14, 2010 By: The Honourable Madam Justice Smith In Concurrence: The Honourable Mr. Justice Cameron The Honourable Mr. Justice Vancise Smith J.A. [1] This appeal from a spousal support order was allowed orally from the bench for the reasons herein set out. [2] On May 21, 2008, Ottenbreit J., as he then was, issued judgment after trial in relation to petition by the respondent for division of matrimonial property and spousal maintenance. (2008 SKQB 222 (CanLII)) The parties had separated in 2003 after 24 years of marriage following two years of cohabitation. At the time of the judgment, the appellant was 60 years old and the respondent was 53. They had two adult children, born in 1984 and 1989 respectively. These children had continued to live with the appellant after the parties’ separation and the younger, Catherine, was full time student. The appellant had assumed substantial portion of her support. [3] Both parties had some health problems. The respondent testified that she had been diagnosed with breast cancer in 2005 and had had surgery followed up by radiation. She also had shingles and an attack in the nature of stroke in March 2006. The appellant suffers from Hepatitis C. After the separation, the respondent had worked at Safeway, but took buyout of her pension and job in February 2006 in exchange for $35,000. Although the respondent was no longer on any medication at the time of trial except for sleep and antidepressant medication, she testified that she was not capable of full time employment and testified that she was disabled and did not know when she would be well enough to work 40 hours per week. She had taken vocational training course for computers and reflexology course since separation, had earned $45,073 in 2006 (including $15,000 attributed to the Safeway buyout), $23,084 in 2005, $18,275 in 2004 and $24,795 in 2003. At the time of trial she was receiving social assistance in the sum of $14,000 annually. [4] In relation to the issue of spousal support, Ottenbreit J. said this: [54] Shelley claims spousal support retroactive to May 2007. Richard’s 2007 income appears to be $30,000.00 based on P-8, Shelley’s exhibit. The factors to be considered when determining retroactive support are contained in Rimmer v. Adshead 2004 SKQB 536 (CanLII); (2005) 259 Sask. R. 161 per Dawson J. at paragraph 67. The parties except for the trust units, separated with an equal amount of matrimonial property. Catherine still lives with her father and is still going to school. The fact that Richard has had and still carries the burden of primarily maintaining Catherine in my view is also factor which militates against retroactive support. Shelley has substantial debt but she also owns and has had the ability to finance house since separation. She has greater capital than Richard at the moment. Given the circumstances it would be unfair to order retroactive maintenance. [58] Richard at this time earns more than Shelley gets on welfare. Shelley obviously has some skills but is not working. She is still feeling effects of her illnesses but could in my view do some part-time work. believe that based on her past experience she could do some work at food store. She has taken various courses which would lead to job. It may take her while to find suitable well paying full time employment. Shelley is still young woman and potentially has many years potential in the job market. The marriage was one of relatively long duration. believe Shelley has established need. Richard has an ability to pay. However his job history is not stellar and his income has fluctuated substantially. His ability to pay is modest based on his income and the fact that he is still supporting Catherine. Richard is nearing retirement and has serious although presently manageable illness. Given Richard’s financial track record and the fact that both parties have gone bankrupt twice Shelley would do well to become self-sufficient as soon as possible. Some spousal maintenance for short duration is however appropriate.  I order Richard to pay Shelley $300.00 per month on the first day of each month commencing April 1, 2008 to and including March 1, 2009 based on his income of $30,000;00. Shelley shall have leave to have the court review this order after March 1, 2009 on seven days notice. [5] By notice of motion dated April 17, 2009, the respondent applied for review of Justice Ottenbreit’s order. By Fiat dated September 15, 2009, Sandomirsky J. ordered that the appellant pay the respondent spousal support of $600.00 per month. The order was permanent and no further review was fixed. He also ordered costs against the appellant in the amount of $750. The appeal is from this order. [6] The evidence before Sandomirsky J. established that during the year following the one year order of Ottenbreit J. the respondent had not engaged in any gainful employment at all. She had sold her house and used the proceeds to spend over four months out of Canada, living in Hawaii part of the time and spending month-long vacation in Jamaica. She paid for her adult children to visit her. Finally, on April 14, 2009, she commenced employment at Westfair Foods in probationary position. This was after the one year spousal maintenance order had expired and only few days prior to filing the application to review that order and to award to her substantial permanent spousal support. Prior to the hearing of her application, she lost this position and said in her affidavits, filed in support of the application, that she was “disabled and still receiving treatments”, that she was enrolled in legal assistant program, and that she had sought permanent full time employment since losing the Westfair Foods position, but had been unable to receive any offers of employment. She filed no medical evidence to indicate that she was unable to work and did not, in fact, say that she was unable to work. In fact, she indicated that she was seeking full time position. [7] The chambers judge imputed an income to the respondent of $14,289 based on the assumption that she was capable of working 30 hours week at minimum wage. He did not indicate why he did not find her capable of full time employment. He found the appellant’s income to be $38,964.37. This was an error, as it failed to take into account employment expenses of $8,822 allowed by Canada Revenue Agency and expressly found by the chambers judge to be reasonable. The proper income for the appellant was still in the neighbourhood of $30,000. He also still had the same medical issues and the couples’ daughter Catherine was still living with him and going to university full time. [8] The order of the chambers judge was based solely on calculation of the parties’ respective incomes, as found or imputed. The chambers judge discounted the relevance of the expenses of maintaining Catherine on the basis that she was over 18, without determining whether she was still a child of the marriage as a full time student. [9] In addition to the factual error or errors, it is our respectful view that the approach of Sandomirsky J. on a review of the issue of spousal support in light of the judgment of Ottenbreit J. was in error. It is clear that Ottenbreit J. set an order for fixed and short term in order to give the respondent an opportunity to find appropriate employment and become self sufficient. It is our view that, in this circumstance, it was incumbent on the respondent on the review application to establish that she was unable to become self sufficient. The evidence did not begin to establish that and, in fact, clearly showed that she had made no effort at all to do so within the year allocated by the Ottenbreit order and prior to the filing of the notice of motion, and little effort between that time and the hearing of the application. [10] The order of Sandomirsky J. is set aside, the respondent’s application for spousal support is dismissed and the order against the appellant for costs below is set aside.
The appellant contests an order for $600.00 monthly spousal support given by a Chambers judge on an application to review a previous order which granted the respondent $300.00 monthly spousal support for a period of 1 year. The parties were married for 24 years following a 2-year period of cohabitation. They have 2 adult children, one of which is largely supported by the appellant. Both parties have some health problems. Originally, the appellant was ordered to pay the respondent $300.00 in monthly spousal support for a period of 1 year. Given the appellant's health difficulties and the fact that he was nearing retirement, the trial judge noted that the respondent would do well to become self-sufficient as soon as possible. The Chambers judge who reviewed the original order found that, during the year period the respondent was collecting spousal support, she had not engaged in any gainful employment. She had sold her house and used the proceeds to spend over 4 months living in Hawaii and Jamaica. She obtained probationary employment just after filing a notice of motion but lost the job before the hearing commenced. HELD: The appeal is allowed, the orders of the Chambers judge for spousal support and costs against the appellant are set aside. The Chambers judge imputed an income of $14,289 to the respondent on the basis that she was capable of working 30 hours per week at minimum wage. He did not indicate why he did not find her capable of full time employment. The Chambers judge made an error in calculating the income of the appellant. He also discounted the expenses borne by the appellant in relation the maintenance of their adult child, who was a full-time student. It was incumbent on the respondent to establish that she was unable to become self-sufficient. The evidence did not begin to establish that and, in fact, clearly showed that she made little effort to do so within the year allocated by the trial judge.