SCHERMAN QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2018 SKQB 29 Date: 2018 01 24 Docket: DIV 113 of 2006 Judicial Centre: Regina (Family Law Division) BETWEEN: JEFFERY ALLAN REID and BARBARA LYNN ELLIS-REID Counsel: Mary Lou Senko for the petitioner Chris Gratton for the respondent FIAT ZARZECZNY J. JANUARY 24, 2018 THE APPLICATION [1] The applicant/petitioner, Jeffery Reid, filed second Application for Variation with the court September 29, 2017, seeking to vary Consent Interim Order issued by Zarzeczny J. August 7, 2007 [Order]. THE INTERIM CONSENT ORDER [2] The provisions of the Order addressed Mr. Reid’s child and spousal support obligations. It was based upon the petitioner’s then income of $48,196 and the respondent’s income of $0. Paragraph 2(b) of the Order provided that Mr. Reid: …shall pay to the Respondent for child support and s. expenses the sum of $150 per month commencing August 1, 2007 and continuing on the first of each and every month thereafter for so long as the child is child within the meaning of the Divorce Act. [Emphasis added] [3] The parties agreed by this provision of the Order that: Given the amount of spousal support, the parties agree that these are reasonable arrangements for the support of the child pursuant to s. 15.1(8) of the Divorce Act. [4] Paragraph 3(a) of the Order provided that Mr. Reid would pay to Ms. Ellis-Reid as spousal support the sum of “$1,250 per month commencing August 1, 2007 and continuing on the first of each and every month thereafter until further Order or agreement.” [Emphasis added] [5] Subparagraph 3(d) of the Order provided that spousal support is reviewable “if the CPP claim is successful and may be recalculated retroactively.” Subparagraph 3(c) obliged Ms. Ellis-Reid to advise Mr. Reid once her CPP claim was ruled upon. This requirement reflected the understanding between the parties that because Ms. Ellis-Reid claimed she was disabled and therefore unable to work, she would make an application for CPP disability benefits/payments. THE POSITION OF THE PARTIES [6] Succinctly stated, and as reflected in the written Briefs of Argument filed by counsel for each of the parties upon the hearing of this variation application in chambers, the position of the parties is as follows: [7] Mr. Reid, advises the court that he has continued to pay the $150 per month child support and $1,250 per month spousal support ordered to the present date. He was, when the Order was made and now continues to be, member of the Canadian Armed Forces. At para. 23 of his affidavit he deposes that: The compulsory retirement age for the Canadian Military is 60 years old, which will turn on December 5, 2019. am currently planning on retiring one year early in 2018. My estimated total annual income at this time will be $37,500 per year, but am willing to continue to provide child support in the Guideline amount until Elizabeth receives her first degree. [8] Insofar as spousal support is concerned, Mr. Reid seeks an order from the court terminating his obligations for payment. This is based upon Ms. Ellis-Reid’s failure to obtain employment of any significance since the Order and her failure to diligently make and pursue an application for CPP disability benefits for which she may be eligible as required by the Order. Mr. Reid also bases his position on the fact that the marriage was an 11 year marriage. He has continued to pay over 12 years of spousal support. [9] As the court understands it, insofar as material changes in circumstances are concerned, Mr. Reid relies upon the following: i) his intention to retire early from the Canadian Armed Forces which will reduce his income from $67,000 to $37,500; ii) the fact that Ms. Ellis-Reid has not applied for split in his CPP credits (which he supports) which may make her eligible for disability pension; and iii) Insofar as his child support obligations are concerned, his daughter, Elizabeth, receives incomes and financial support for her university studies from student loans, bursaries, scholarships and summer and part-time academic year employment. While he acknowledges he must and intends to support Elizabeth, the amount should take into account these financial resources and support should only continue for her first degree. [10] These circumstances, Mr. Reid claims, meet the material change threshold for successful variation application. [11] Ms. Ellis-Reid opposes Mr. Reid’s variation application. Her position, advanced by her counsel, is that Mr. Reid has not established the threshold requirement of material change in circumstances. The general circumstances of the parties are basically the same, albeit with some changes (in law not material) from those existing throughout the period of time that Mr. Reid has paid the child and spousal support payments that he has. In response to his now declared intention to take early retirement, no sound reason for Mr. Reid’s choice to retire early is provided. It appears simply to be matter of choice, not necessity. Implicitly she takes the position that so long as he has spousal and child support obligations that choice, in law, should not be open to him. [12] Ms. Ellis-Reid responds, through her counsel’s submissions, that she is prepared to take reasonable steps and to diligently pursue new CPP disability application which she had previously pursued but which was denied because she did not have sufficient CPP credits. Now that Mr. Reid is prepared to either apply for or agree to split his CPP credits or support her application to do so, she will reapply. To do so she requires and is waiting to receive sufficient supporting medical reports from her current (but new) medical specialist that she consults in Saskatoon where she now lives with her daughter Elizabeth. [13] There are two issues to be decided with respect to this variation application, namely: 1. Has the applicant met the threshold obligation to satisfy the court that there is (are) material change in circumstance(s) to support the court’s variation of the Order? 2. If the applicant has met the “material change in circumstance” threshold, what should be the disposition of his variation application? [14] The decisions of the Supreme Court in the cases of Willick Willick, 1994 CanLII 28 (SCC), [1994] SCR 670 and G.(L.) B.(G.), 1995 CanLII 65 (SCC), [1995] SCR 370, identify and illustrate how the principle of “material change of circumstances” applies in the context of applications to vary child and/or spousal support orders. The guiding question cited is “if known at the time of the original order, would the change have resulted in different order?” [15] Mr. Reid recommenced his military career in early 2000 and served in the military at the time he authorized the Order he now seeks to vary. Much younger at that time than he is now, nevertheless he would have then and must throughout the duration of his payment of support, been aware of the retirement regulations for persons serving in the Canadian military. He nevertheless agreed, by the provisions of the Order, to continue to make child support payments to support his daughter so long as she remained child within the provisions of the Divorce Act, RSC 1985, (2d Supp). [16] His affidavits also recognize and acknowledge that at the time he entered into the Order, Ms. Ellis-Reid had no income and she suffered from at least two of the now longer list of medically disabling conditions set out in her affidavit. She continues to assert she is disabled and unable to engage in employment. [17] Cases in Saskatchewan have consistently concluded that voluntary early retirement, or for that matter, the choice of a payor to either leave the work force, stop working, go back to school or change jobs for lesser pay, all by choice as opposed to necessity, do not constitute a material change of circumstance sufficient to support a variation application to eliminate or reduce a payor’s obligation to pay child or spousal support (see Zaleschuk v Zaleschuk, 2009 SKQB 356 (CanLII), 340 Sask R 305 and the cases therein cited including Poitras v Poitras, 2006 SKQB 96 (CanLII), 276 Sask R 163; Grey v Grey, 2003 SKQB 266 (CanLII), 237 Sask R 109). [18] In the circumstances of these parties, both at the time the Order was entered into and now in excess of the 10 years that its provisions have been (to the credit of Mr. Reid) complied with, I have concluded that there is not a material change of circumstances established in this case as legally required to support the granting of the variation application. [19] Mr. Reid continues to be employed with the Canadian Armed Forces and can maintain this employment for another two years. Ms. Ellis-Reid claims to be and have been disabled and unable to work. As the Order contemplates, she now undertakes to diligently pursue split of her and Mr. Reid’s CPP credits and reapply for CPP disability benefits previously applied for but denied. [20] The parties’ daughter Elizabeth continues to be child within the meaning of the Divorce Act based upon the authorities applicable to children attending university full-time. [21] The changed circumstances argued for are, at best, future contingencies not present changes. The parties have been content to follow the existing Order, both payor and recipient, for the last 10 years in all their circumstances prevailing during that time. see no basis in law or fact to vary that status quo. note further that the parties have agreed to inextricably intertwine the payor’s spousal and child support obligations to the total “lump sum” payment of $1,400 for tax purposes favouring large sum payable for spousal support and lesser sum than that which would be required for child support. If future consent order is reached, the parties should reconsider the advisability of doing so. [22] For the reasons stated and analysis undertaken, I dismiss the applicant’s variation application. [23] Before leaving this matter wish to make the following additional comments and observations. While have dismissed Mr. Reid’s variation application, it may well be the case that from and after the date of his mandatory retirement, which is scarcely two years away, his circumstances including the substantial decrease in his income from the current level of approximately $67,000, may well constitute material change in circumstance prompting yet another variation application at that time. It may also be that Elizabeth will have completed her first degree. In addition, Mr. Reid advises he is prepared to fully support Ms. Ellis-Reid’s eligibility to apply for and obtain split of Mr. Reid’s CPP credits. This when achieved, will allow her to reapply for CPP disability benefits. If she is successful and receives disability pension, that increase in Ms. Ellis-Reid’s income, combined with the reduction of Mr. Reid’s income upon retirement, may also support the conclusion that all these events combined are sufficient material changes in the circumstances of the parties to then support variation application being made if an agreement is not reached. [24] For this reason, and in the interests of avoiding multiple court proceedings in the future, in dismissing the present variation application, I further order the following: 1. That Ms. Barbara Lynn Ellis-Reid immediately proceed to complete an application to split the CPP credits to the account of Jeffery Allan Reid equally, the same to be supported by Jeffery Allan Reid either through a joint application made or consent endorsed upon the application made by Barbara Lynn Ellis-Reid. Both parties will cooperate to execute such further or other documents as necessary to achieve the CPP credit split; 2. That upon confirmation of the split of the CPP credits, Barbara Lynn Ellis-Reid will, within 60 days thereafter, apply for CPP disability benefits and pursue the application diligently. She shall provide all information reasonably required by CPP to support her application; and 3. That Barbara Lynn Ellis-Reid will keep Jeffery Allan Reid informed of all communications received from the CPP disability claims administrators and provide copies of such correspondence to him immediately upon receipt. J. T.C. ZARZECZNY
HELD: The application was dismissed. The court found that the applicant had not proven that there was a material change in circumstances as voluntary early retirements do not constitute material change of circumstance. It ordered the respondent to immediately proceed to complete an application to split the applicant’s CPP credits.