Trewin v. Jones (1997), 32 O.R. (3d) 225 (C.A.)

  • Document:
  • Date: 2018

Re Trewin and Jones

[Indexed as: Trewin v. Jones]

32 O.R. (3d) 225

[1997] O.J. No. 399 No. C21859

Court of Appeal for Ontario,

Houlden, Finlayson and Rosenberg JJ.A.

February 7, 1997

 

 

Family law — Support — Spousal support — Variation — Wife working towards degree in education when support order made

— Trial judge making time-limited support order in anticipation of wife becoming self-supporting when education completed — Wife unable to find permanent employment upon graduation — Wife applying to extend and increase support order — Trial judge erring in concluding that no material change in circumstances existed — Wife 51 years old and trained for work in fields which were particularly hard hit by public sector restraint — Wife’s inability to find work constituting material change in circumstances — Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 17.

 

During the parties’ 24-year traditional marriage the wife, a registered nurse, largely stayed at home and raised the couple’s children. At the time of their divorce, the wife was enrolled in an honours degree program working towards teaching qualifications. At the time of the trial of the issue of spousal support, the husband was earning $74,000 per annum and the wife was unemployed but had over $200,000 to invest. The trial judge made a time-limited support order in the amount of $650 per month in anticipation that the wife would ultimately seek employment either in the health care field or in education. After she obtained her teaching qualifications, the wife was unable to find permanent employment. She brought a variation application under s. 17 of the Divorce Act to extend and increase the support order. The application was dismissed on the ground that there was no material change in circumstances. The motions judge found that the time-limited support granted by the trial judge was for purposes of re- education, which had been completed. The wife appealed.

 

Held, the appeal should be allowed.

 

There had been a material change of circumstances within the meaning of s. 17(4) of the Divorce Act. In holding that there had been no material change in circumstances because the support order was solely for the purposes of re-education, the motions judge misapprehended the purpose of the support order. Re-education was not an end in itself. The trial judge expected that the wife would be able to obtain employment. At the age of 51, the wife now found herself looking for work in two fields, health care and education, which had been particularly hard hit by public sector restraint. Different terms would have been imposed in this case had it been known at the time of the original support order that the wife, despite her reasonable efforts, would be unable to secure employment that together with her investments would provide her with sufficient income to maintain even a modest standard of living. The wife’s unmet expectation of self-sufficiency constituted a material change in circumstances.

Moge v. Moge, [1992] 3 S.C.R. 813, 81 Man. R. (2d) 161, 43 R.F.L. (3d) 345, 99 D.L.R. (4th) 456, 145 N.R. 1, [1993] 1 W.W.R. 481, consd

 

Other cases referred to

 

Harrington v. Harrington (1981), 33 O.R. (2d) 150, 123 D.L.R. (3d) 689, 22 R.F.L. (2d) 40 (C.A.); Munro v. Munro (1986), 2 R.F.L. (3d) 25 (B.C.C.A.); Ross v. Ross (1995), 168 N.B.R. (2d) 147, 16 R.F.L. (4th) 1, 430 A.P.R. 147 (C.A.); Sengmueller v. Sengmueller (1994), 17 O.R. (3d) 208, 2 R.F.L. (4th) 232, 111 D.L.R. (4th) 19, 25 C.P.C. (3d) 61 (C.A.); Story v. Story (1989), 42 B.C.L.R. (2d) 21, 23 R.F.L. (3d) 225, 65 D.L.R. (4th) 549 (C.A.); Willick v. Willick, [1994] 3 S.C.R. 670, 6 R.F.L. (4th) 161, 125 Sask. R. 81, 119 D.L.R. (4th) 405, 173 N.R. 321, 81 W.A.C. 81

 

Statutes referred to

 

Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 15, 17(4), (7)

 

APPEAL from a judgment dismissing an application to vary a support order.

 

Ian C. Vallance, for appellant. Robert J. Montague, for respondent.

 

The judgment of the court was delivered by

 

ROSENBERG J.A.: — This is an appeal from the judgment of Cosgrove J. dismissing an application by Ms. Trewin to vary the spousal support order of MacDonald J. dated March 13, 1992 made pursuant to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). The essential issue in this case is whether Ms. Trewin has demonstrated a material change in circumstances within the meaning of s. 17(4) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.).

 

The History of the Proceedings

 

The Trial before MacDonald J., March 1992

 

The parties were married in 1966 and separated in 1990. They had a “traditional” marriage. During the 24 years of the marriage, Ms. Trewin largely stayed at home working as a homemaker and raising the couple’s two children. Before the marriage, Ms. Trewin had qualified as a registered nurse. She worked for a short time after getting married until December 1967. After the couple’s first child was born in 1968, Ms. Trewin returned to work as a nurse for one year.

Mr. Jones had begun work with the federal government in 1965. In 1969, he took a leave of absence in order to return to university, and the family moved to Hamilton to accommodate his education plans. He attended university for one year, working towards a Ph.D. The family then returned to Ottawa and Mr. Jones resumed full-time employment with the federal government. He continued his studies and in 1975, obtained his Ph.D. In the meantime, Ms. Trewin remained at home and in 1976, the couple’s second child was born. In 1978, Ms. Trewin was diagnosed with a chronic thyroid condition, which has been a continuing concern for her.

An agreed statement of facts filed before MacDonald J. stated that Ms. Trewin “always had the option to work if she so desired or to stay home if she so desired”. Be that as it may, she only undertook sporadic employment in the health care field during the marriage. Between 1979 and 1986, she worked part- time as a nurse receptionist for various physicians and then part-time as a nurse in oral surgery. When she last worked in 1986, she earned $9.00 per hour. From 1982 to 1991, Ms. Trewin also attended university part-time.

The parties divorced in April 1991. In May 1991, Ms. Trewin obtained a Bachelor of Arts degree. She intended to obtain her honours degree and then take a Bachelor of Education degree. In the fall of 1991, she enrolled in an honours degree program, and expected to obtain her teaching qualifications by 1995.

In September 1991, the parties settled all matrimonial issues except spousal support. According to the agreed statement of facts, Ms. Trewin received $170,000 from her share of the proceeds from the sale of the house and an equalization payment. She received a further payment of $15,000 from Mr. Jones, and had savings and investments.

The outstanding issue was support. At the time of trial of the support issue in March 1992, Mr. Jones was earning approximately $74,000. Ms. Trewin was not employed, but had over $200,000 to invest. MacDonald J. ordered that Mr. Jones pay $650 per month in spousal support only until January 1, 1995. His reasons are important to resolving this issue. In part, they were as follows:

[The wife], at this point in time, is engaged in one course, having dropped one other that she was pursuing. She has had some success and has graduated with a degree, and is now pursuing an honours creditation, which would attach to the degree, but her extended plan is to continue into an education program at a university, ultimately being accredited as a teacher, and she anticipates being employable in that field.

I and Mr. Montague [the husband’s lawyer] were not nearly as confident in her ability to complete this course, nor in her anticipation of finding employment when it is ended. It was the husband’s position, as voiced through his solicitor, Mr. Montague, that this lady should be pursuing work in the health care field. She is a registered nurse, and seems capable of doing work in that area; although probably not as a full-time nurse in a hospital.

Over the years of the marriage she has worked from time to time in the health care area, and it would seem to me, and to Mr. Montague, that that is the area that she should pursue.

However, it is not up to this court to dictate to litigants what they should do with their lives. We can only make suggestions, and point out that the support that is sought by the wife for an extended period of training, can only be given if, with some realism there is hope for employment at the end of that training period.

It is incumbent on Mrs. Jones, and she is aware of it, as is her counsel, that she must seek some kind of employment to supplement what the husband will be paying. She has, I think, a very generous package, severance package if you like, from the marriage, assets that she has properly invested. That will provide her with a base minimal income for the future, And she should not, in my recommendation, touch or encroach on the capital. She should however and must ultimately seek some kind of gainful employment in this difficult job market and I anticipate that she will do so. She needs some assistance from the husband during the period that she says she will require to complete the educational programs that I have outlined.

 

(Emphasis added)

 

It is apparent that MacDonald J. took a narrow view of the purpose of spousal support. His reasons follow the now- discredited model based on notions of self-sufficiency and causal connection. MacDonald J.’s view was that support should continue only to the point that he judged Ms. Trewin should be self-sufficient as a result of new employment (following re- education) and her investment income. Ms. Trewin, however, did not appeal from this decision, and in fairness to MacDonald J., the decision of the Supreme Court of Canada in Moge v. Moge, [1992] 3 S.C.R. 813, 43 R.F.L. (3d) 345, had not then been decided.

 

The Application to Vary

 

Ms. Trewin’s application to extend and increase the support order was initiated on December 22, 1994. It was supported by several affidavits from her. Mr. Jones filed a responding affidavit. Both parties were cross-examined on their affidavits. At the hearing before Cosgrove J., a large number of documents were also filed. Ms. Trewin’s material indicated that, despite her best efforts, she had been unable to obtain employment.

 

Ms. Trewin was 51 years old at the time of the application. Her income from investments was $13,000. Although she had maintained her qualifications as a registered nurse by paying her dues, she had not worked full-time as a nurse since 1969. Further, the part-time employment while she also maintained the home and cared for the children had not permitted her to keep up with the “dramatic changes” in nursing over the 30 years since she had obtained her nursing degree.

 

Ms. Trewin had taken to heart the suggestions of MacDonald J. and attempted to upgrade her nursing skills. However, overwhelmed by the changes in nursing, she left the course after three weeks. She was incapable of working as a hospital nurse and therefore investigated employment as a receptionist- nurse. She indicated in her affidavit that she could expect to earn about $14,000 per year. On cross-examination, she stated that she could earn $14 per hour. In any event, although she sent out several applications, she was unable to obtain a job in this field.

Ms. Trewin decided to finish her teaching qualifications. She completed her honours degree and obtained some work as a teacher’s assistant. Her education was financed, in part, by student loans. In April 1993, she was accepted at Teacher’s College at Queen’s University and completed her degree in April 1994. She returned to Ottawa and set about applying to various school boards in Ontario. She sent out 103 job applications, but was only able to obtain some work as a supply teaching assistant.

At the age of 51, Ms. Trewin was living frugally in student- type accommodation. Her health had also deteriorated from the thyroid condition. Her monthly income, when she was still receiving the support payments, was approximately $2,000. Ms. Trewin alleged that Mr. Jones’ lifestyle had not changed materially since the divorce. Mr. Jones confirmed in his affidavit that his financial circumstances were as set out in his 1992 financial statement. This shows a monthly income of approximately $6,000.

 

Cosgrove J. dismissed with costs Ms. Trewin’s application to vary the support order. His reasons in their entirety were as follows:

 

The court does not agree that there is a change in circumstances warranting a reconsideration. The time-limited support granted by the trial judge was for purposes of re- education which has been completed. It was contemplated that she must after that point seek employment (in whatever area). In equity post-Moge the wife seems to be continuing as disadvantaged.

 

The Appeal Proceedings

 

On the appeal, counsel for Ms. Trewin sought to introduce fresh evidence to show the further deterioration in the wife’s financial circumstances. Mr. Vallance relied on Sengmueller v. Sengmueller (1994), 17 O.R. (3d) 208, 2 R.F.L. (4th) 232 (C.A.). In that case, McKinlay J.A. held at p. 211 that the court has a discretion to admit evidence that did not exist at the time of the trial “where the evidence is necessary to deal fairly with the issues on appeal, and where to decline to admit the evidence could lead to a substantial injustice in result”. In Sengmueller, supra, the court admitted evidence as to, inter alia, the imminent decline of the husband’s business due to his failing health.

Mr. Montague, counsel for Mr. Jones, did not oppose admission of the fresh evidence; in fact, he relied on some parts of it. Accordingly, the court accepted the fresh evidence.

The fresh evidence shows that, despite her continued efforts to obtain employment either in the education or health fields, Ms. Trewin has been unable to find a full-time job. She has worked only sporadically as a supply teacher. She has also done some volunteer teaching and worked as a teaching assistant. She has worked in the health care field as a home support worker.

Her total income from employment in 1995 was $9,572. Her investment income was $1,081 per month. However, those investments have matured, and she expects to receive considerably less when they are reinvested.

Ms. Trewin has now had to encroach upon her capital, which at the original trial was over $200,000, to the extent of approximately $23,000, and has set aside a further $25,000 for living expenses and legal fees. She continues to live frugally, having moved into a small one-bedroom apartment. She requires extensive dental work. Since her employment as a home support worker requires that she travel to patients’ homes, she must maintain a car. Her current car is 10 years old and requires considerable maintenance. She alleges that Mr. Jones continues to have a comfortable lifestyle. He lives in a large home, travels to Australia and Florida, drives a new car and is a member of a golf club.

 

Material Change in Circumstances

 

To succeed on her application to vary the support order, Ms. Trewin must establish a material change in circumstances within the meaning of s. 17(4) of the Divorce Act. Section 17(4) provides as follows:

17(4) Before the court makes a variation order in respect of a support order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of either former spouse or of any child of the marriage for whom support is or was sought occurring since the making of the support order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration that change.

In a variation proceeding the court must assume that the original support order was correct: see Willick v. Willick, [1994] 3 S.C.R. 670 at pp. 687-88, 6 R.F.L. (4th) 161. However, if the former spouse can show a change in circumstances, then pursuant to s. 17(7), the court in varying the order must consider the same factors as the judge had to consider in making the original order under s. 15. As Mr. Montague aptly put it, once the s. 17(4) threshold is met, the amount and duration of support is “wide open”.

In my view, there has been a material change in circumstances within the meaning of s. 17(4). Sopinka J. explained the meaning of “material change” in Willick v. Willick, supra, at p. 688:

This means a change, such that, if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation.

The reasons of MacDonald J. indicate the basis for the time- limited support order. He believed that by January 1, 1995, having either completed her degree in teaching or by returning to the health care field, Ms. Trewin would, with her investment income, be self-supporting. MacDonald J. also believed that Ms. Trewin would not need to encroach on her capital. Neither expectation has been fulfilled.

This court is entitled to interfere with the decision appealed from only if the reasons disclose “material error [including] a significant misapprehension of the evidence”: Harrington v. Harrington (1981), 33 O.R. (2d) 150 at p. 154, 123 D.L.R. (3d) 689 (C.A.). In my view, Cosgrove J. erred in holding that there had been no material change in circumstances because the support order was solely for the purposes of re- education, which had been accomplished. He misapprehended the purpose of MacDonald J.’s order. Re-education was not in this case an end in itself. MacDonald J. expected that Ms. Trewin would be able to obtain employment and not have to encroach on her capital.

In attempting to support the decision of Cosgrove J., counsel for Mr. Jones argues that there has been no material change in circumstances. He argues that the time-limited support was intended by MacDonald J. to provide Ms. Trewin with a period of time for retraining, but that it was fully anticipated that she might be unable to obtain suitable employment. I cannot accept this interpretation of MacDonald J.’s reasons. Such an interpretation would fly in the face of s. 15(7)(d) of the Divorce Act, which provides that the objective of self- sufficiency is a goal of a support order only “in so far as [is] practicable”. It would also be inconsistent with MacDonald J.’s admonition to Ms. Trewin that she not encroach on the capital. It was not unreasonable that the support order be based on the principle that Ms. Trewin should not have to encroach on her share of capital assets in order to support herself: see Ross v. Ross (1995), 16 R.F.L. (4th) 1 at p. 5, 168 N.B.R. (2d) 147 (C.A.). However, that could only be accomplished here if Ms. Trewin obtained suitable employment.

Whether there has been a change in circumstances must be determined having regard to the particular circumstances of the parties. A minor set-back for a person with significant personal resources who has been in the workforce full-time for many years could prove catastrophic for a person such as this appellant. At age 51, she found herself back in a difficult job market looking for work in two fields, health care and education, that had been particularly hard hit by public sector restraint coming on the heels of a recession. I note that in Moge v. Moge, supra, itself, the court found there had been a change in circumstances within the meaning of s. 17(4) entitling the husband to apply for a variation of child and spousal support. The court made this finding merely because the wife, who had been unemployed at the time of the order, had been able to secure part-time and intermittent cleaning work giving her an income of only $800 gross per month.

In my view, different terms would have been imposed in this case had it been known at the time of the original support order that Ms. Trewin, despite her reasonable efforts, would be unable to secure employment either in the health care or education field that together with her investments would provide her with sufficient income to maintain even a modest standard of living. The comments of Proudfoot J.A. in Story v. Story (1989), 23 R.F.L. (3d) 225 at p. 245, 42 B.C.L.R. (2d) 21

(C.A.), which were approved by L’Heureux-Dub J. in Moge v. Moge, supra, at pp. 844-45, seem apt:

It is often, in my opinion, totally unrealistic to expect that a 45- or 50-year-old spouse who has not been in the job market for many, many years to be retrained and to compete for employment in a job market where younger women have difficulty becoming employed. Employment and self-sufficiency are simply not achievable. In those cases, the obligation to support must surely be considered to be permanent. That obligation must flow from the marriage relationship and the expectations the parties had when they married.

Applications to vary spousal support orders are of necessity fact driven. The unique feature of this case is that MacDonald J., in his original spousal support order, went out of his way to express doubt as to the wisdom of Ms. Trewin’s decision, despite her nursing background, to leave the health care field to pursue a new career in the teaching profession. However, as he acknowledged, that was her decision to make. Counsel for Mr. Jones relies upon this scepticism on the part of MacDonald J. as supporting his argument that there has been no change of circumstances. MacDonald J.’s prediction was justified by subsequent events.

However, this should not be the end of the matter. A divorced wife, in the circumstances of Ms. Trewin, should not be discouraged from embarking on an extensive re-education program for fear that it might not be the best economic decision. While self-sufficiency is a recognized goal from the standpoint of the Divorce Act, self-worth and professional fulfilment are important to a spouse who is attempting to start a fresh career following the breakdown of the marriage. Ms. Trewin, in this case, knew what she could do in the health care field because of her experience there during and before marriage. She should not be punished because she rejected a continuation of that career path in favour of a change in professional direction. It is now apparent that despite reasonable efforts at self- sufficiency and her modest lifestyle, Ms. Trewin cannot support herself without continued assistance from Mr. Jones. In these circumstances, this unmet expectation constitutes a material change in circumstances: see Munro v. Munro (1986), 2 R.F.L. (3d) 25 (B.C.C.A.).

 

The Appropriate Order

 

Counsel for Ms. Trewin submits that if this court found a material change in circumstances, we should make the order that should have been made by Cosgrove J. Counsel suggests support in excess of $2,000 per month with no time limit. In my view, it is simply not practical for this court to attempt to fix the appropriate level of support. Although we have some information as to Ms. Trewin’s current circumstances, we have little current information about Mr. Jones.

Accordingly, the appeal is allowed and the matter is remitted to the Ontario Court of Justice (General Division) for a hearing to determine the appropriate support order in accordance with s. 17(7) of the Divorce Act. Ms. Trewin is entitled to her costs of the appeal and of the hearing before Cosgrove J.

 

Appeal allowed.