George Dooley, of Nova Scotia, came to court seeking to be relieved of his monthly spousal support obligation, which came into effect in May 2014, to his ex-wife, Bernice Dooley. The Dooley’s had been married for 34 years, and at the time he sought to vary the spousal support of $5,000 a month, each of them was in their mid-sixties. Dooley v. Dooley 2020 NSSC 109
Mr. Dooley alleged four material changes in his circumstances, as follows:
a) Canada Revenue Agency had reassessed him and he was required to pay $295,000 in taxes;
b) he had retired;
c) he had separated from his second wife, Laurie;
d) he had financial obligations to the three children of his second marriage.
The court considered each alleged material change in turn, beginning with his CRA reassessment. The evidence indicated that the reassessment took place in 2017 and that he had additional debts including a $375,000 mortgage and $60,000 in consumer debt. As a result he had declared bankruptcy on May 1, 2017 and was entitled to an automatic discharge in January 2018.
Rejecting the CRA reassessment as a material change sufficient to invoke section 17 of the Divorce Act, the court remarked that with his bankruptcy, all of his debts disappeared, leaving him in a better position to pay support than before the bankruptcy. The court also noted that arrears of support are not cancelled by a bankruptcy.
With respect to his retirement, the parties’ earlier agreement provided that retirement would be considered a material change in circumstance, however, Bernice Dooley maintained that her ex-husband had not retired. Mr. Dooley opened Dooley’s Pharmacy in 1984 and retained it after their divorce. He began receiving his Canada Pension Plan in 2015 and sold his interest in Dooley’s Pharmacy in September 2015, receiving $455,000 from the sale. He alleged that all of this money was now gone.
He had also retained the family home after the 2014 divorce, which he renovated shortly thereafter. However, after receiving the funds from the sale of the pharmacy he tore down his newly-renovated home and built two homes on the property, one home for himself, his second wife and her three children; and one for Laurie Dooley’s parents.
After the sale of his business he remained working for the new owner as a pharmacist, with no guaranteed hours. In an affidavit dated August 2016 he deposed that he had not worked since May 2016, however, in a November 2019 affidavit he swore that he continued to work part-time during 2017. He had also worked at several other pharmacies in Nova Scotia prior to his move to Nunavut in September 2017. Throughout the period he maintained his pharmacy license.
Two months after his divorce from Bernice, he married Laurie Dooley, separating from her 19 months later, but not before he adopted her three children, 10-year old twins, and a 16 year-old. The adoptions were finalized shortly after the date of their separation. His new in-laws lived rent-free in the second home he built.
The court rejected his assertion that he was retired, remarking that his acquisition of additional financial obligations, including a second wife and three children, led to the conclusion that he could not afford to retire.
Moving on to consider whether the separation from his second wife and assumption of financial obligations with respect to his three adopted children, constituted a material change, the court noted that Mr. Dooley failed to provide evidence to establish the circumstances of his newly acquired family at the date of his divorce, making it impossible to determine if a change of circumstance had occurred.
Mr. Dooley and his second wife executed a separation agreement in February 2017, wherein each of them waived spousal support and each kept their own property. They agreed that they would both reside in the family home and either of them could, at a later date, apply to court to divide the home. There were no provisions for custody or child support in the agreement. However, he swore that he paid child support to Laurie Dooley for the three children, in the amount of $2,729, a sum that pursuant to the Nunavut guidelines required an annual income of $137,000.
Mr. Dooley’s evidence was inconsistent as he alleged that Laurie Dooley had claimed spousal support in their divorce petition, but later said she had not. Despite a request to provide a copy of the divorce petition, he failed to do so.
The court determined that Mr. Dooley had not proved, on a balance of probabilities, that his separation from Laurie Dooley had affected his ability to pay spousal support to his first wife:
“because there is no evidence they were in a relationship or, if they were, the nature of their relationship when the support order was granted…I don’t know whether the children were part of his household and being support by him when the spousal support order was granted. Certainly, if they were, then the current obligation to support them (even if now formalized in adoption orders) isn’t a material change”.
Not surprisingly, the first Mrs. Dooley queried whether her ex-husband’s alleged separation from his new wife, after 19 months, was bonafide, and I agree that her suspicions were well-founded. This sounds like a classic “sweetheart” deal and does not pass the smell test. Unfortunately, for him, his ill-conceived strategies were too far-fetched for even his QC lawyer to overcome and his application was dismissed.
In Mr. Dooley’s current financial situation, his retirement is years away, which is in keeping with Statistics Canada’s findings that 49% of Canadians 60 years or older are working “out of necessity”.