Q.B. No. 03705 J.C. R. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: PATRICIA MARGARET PEARSON RESPONDENT (PETITIONER and GLEN MARTIN PEARSON APPLICANT (RESPONDENT) Jeffrey G. Brick for the respondent (petitioner) Hal B. Wellsch for the applicant (respondent) FIAT ZARZECZNY J. May 19, 2000 FACTS [1] The applicant divorced husband applies to vary the spousal support provisions contained in a separation agreement dated June 18, 1975 (the "agreement) between he and the respondent, Patricia Margaret Pearson. By virtue of paragraph 4(a) of the agreement the parties agreed that the initial sum of $550.00 would be paid for spousal support and further agreed “the said payment shall continue until the wife remarries or dies, whichever date occurs the sooner”. The agreement provided for annual adjustments to the spousal amount payable based upon the increase in the Consumer Price Index for Regina-Saskatoon. The respondent asserts that the amount that should now be paid pursuant to the terms of the agreement exceeds $1,000.00. Although this was paid as the adjusted amount due in 1995 it was unilaterally reduced by the applicant to $627.55 per month in February of that year. [2] The applicant continues to pay this spousal support which (except for the unilateral reduction in 1995) he has been paying for in excess of 25 years in accordance with the terms of the agreement. The basis of the applicant’s variation application is that he is now 67 years old and retired. His retirement income is substantially less than was his employment income at the time that he entered into the agreement. The applicant also asserts that the respondent is now employed part-time and earns an income which was not the case at the time the agreement was entered into. [3] At the time the agreement was entered into this couple had five children, all of whom lived with the respondent and whom she raised. The separation agreement makes provision for child support payments. The children have now grown up and lead lives of their own. The respondent works part-time as clerk at Regina jewellery company and earns gross monthly income of $849.33 (including modest pension of $34.33 monthly). The respondent will be 64 years of age on July 1, 2000. She deposes that she lives in modest apartment in the north end of Regina and drives 1978 vehicle which is in need of repair. [4] The applicant is graduate professional engineer and was the founder and partner in an engineering firm in Saskatchewan. He had always earned a considerable income although he deposes to a number of substantial business investment losses in the United States. He has holding company through which he had provided computer sales and consulting services, business he has substantially wound down and from which he expects little or no income this year and into the future. He deposes to total gross monthly income of $2,674.00. He has locked-in pension with an asset value of $215,000.00 and house worth approximately $126,000.00 (with mortgage of $54,000.00 which he co-owns with his present wife). He married approximately two years ago. [5] In trilogy of cases the Supreme Court of Canada concluded that in order for court to vary support provisions in valid settlement or separation agreement or consent order, material or radical change in circumstances causally connected to the marriage needs be established. [6] The decree nisi for divorce dated September 26, 1977, incorporated the support provisions of the separation agreement. In the Saskatchewan Court of Appeal decision of Masters v. Masters (1991), 1991 CanLII 8022 (SK CA), 93 Sask. R. 241, the court upheld the dismissal of an application to vary spousal support order contained in divorce decree on the same basis as the Supreme Court trilogy namely; the failure of the applicant to establish radical unforeseen change in circumstances causally connected to the marriage. (See also Remenda v. Remenda (1996), 1996 CanLII 7102 (SK QB), 142 Sask. R. 313 (Q.B.) and Ireland v. Gessner (1996), 1996 CanLII 6848 (SK QB), 150 Sask. R. 298 (Q.B.)). [7] The retirement of one or other of these parties was reasonably foreseeable at the time that they entered into the terms of the separation agreement. It was also foreseeable that retirement income is most often less than employment income. The applicant clearly has a higher and better standard of living than the respondent. As the financial calculations submitted by the respondent demonstrates, the applicant’s net disposable income after tax and after deduction of the current support payment ($627.00) is $1,548.00 whereas the respondent’s net disposable income is $1,218.00 after receiving the taxable support payment of $627.00. [8] The agreement between the parties, in its preamble, clearly expresses the intention of the parties when they made it, namely; "that there shall be a complete, final and effective settlement of their respective rights". The retirement of the applicant and the reduction of his income as a consequence is or was reasonably foreseeable at the time the agreement was entered into. The fact it has now occurred is not that kind of radical unforseen change in circumstance required to be established upon the authorities to support the variation application. Nor am I persuaded that the respondent's modest income provides any proper ground for variation of the agreement. She still has a much lower standard of living than the applicant even after taking into account the amount she is receiving as spousal support. [9] In all the circumstances and for the reasons stated the variation application is dismissed with costs to the respondent.
FIAT. The husband seeks to vary the spousal support provisions of the parties' 1975 separation agreement. This agreement held that the sum of $550 (adjusted for inflation) is to be paid to the wife until she dies or remarries, whichever comes first. The applicant paid this amount (except for a unilateral deduction in 1995) for over 25 years. The basis of his application is that he is now retired and earning less income. In addition, the respondent now earns part-time income that she did not have at the time of the agreement. At the time of the agreement, the wife raised the couple's five children and received child support from the applicant. HELD: The application is dismissed with costs to the respondent. The SCC has held that in order for a Court to vary support provisions in a valid settlement, separation agreement or consent order, a material or radical change in circumstances causally connected to the marriage needs to be established. Retirement of one of the parties was reasonably foreseeable at the time they entered into the agreement. It was also foreseeable that retirement income is most often less than employment income. This is not the kind of radical unforeseen change in circumstance required to vary the support. The preamble of the parties' agreement states that they intended it to be a complete and final settlement. The applicant has always earned considerable income and continues to have a better standard of living than the respondent. The respondent's modest income does not provide grounds to vary the agreement as she still has a much lower standard of living that the applicant, even after receiving the spousal support.