Damages for Parental Alienation?

Parental alienation is a most insidious form of child abuse, a phenomenon that leaves children scarred and innocent parents victimized.  If and when the child is returned, the healing process begins, though often times the damage is difficult to repair and the financial and emotional wear and tear is immeasurable. 

Sometimes “left-behind” parents consider whether a court action is feasible to receive damages from the alienating parent as compensation for the tortuous journey they travelled to recover their “stolen” child. 

In a recent Ontario case, the Court of Appeal considered an appeal by a father who sued his former wife and her new husband in a Florida court for $9.6 million in damages, including punitive damages, arising from an intentional course of conduct to interfere with his custodial rights and intentional infliction of emotional distress. Glegg v. Glass et al 2020 ONCA 833.

The father alleged that his former wife moved with his daughter to Florida in 2014 in the face of a 2001 joint custody agreement that provided both parents would remain in the Oakville, Ontario area until their daughter turned 18 years. The unilateral move led to extensive litigation and the return of their then 15-year-old daughter to Ontario. However, when the young girl turned 16, she sought and obtained an emancipation order, withdrawing from both parents’ control. Father’s appeal of this order was not successful. Later, his daughter brought a child support application against him, which she eventually abandoned.

The recourse to the Ontario courts was related to an application based on Letters of Request (letters rogatory) from the Florida court for the production of documents in the possession of his former spouse’s lawyers, as well as from the lawyer for his now estranged daughter, and Justice for Children and Youth, a non-profit organization providing legal services for children under the age of 18.

The application judge dismissed the father’s application concluding it would be against public policy to enforce the Letters of Request from a foreign court “in aid of a cause that is forbidden in Ontario” and because it would be a breach of solicitor-client privilege. 

The heart of the court’s dismissal was based on Frame v. Smith 1987 Canlii 74 SCC where the high court  held that a parent cannot sue his spouse or third parties for interfering with a parental relationship.  In Frame the court stated:

“Permitting civil actions against the custodial parents cannot be said with any certainty to be in the best interests of the child…Like the resort to fines and imprisonment, these proposed remedies could encroach on the resources of the custodial parent and could cause the child to suffer from the knowledge that one parent has taken such drastic action against the other.”

Query whether with the passage of 33 years since the Frame decision and the almost universal acceptance of advanced research and judicial analysis of parental alienation, this decision would stand scrutiny today, if the right case presented itself. 

While an action in damages for parental alienation has not yet succeeded in Canada, it is a viable claim in the United States. Segal v. Lynch May 3, 2010 in the New Jersey Court of Appeal,  began in Ontario where child custody, child support, spousal support, and property division was determined. A few years later the children and their mother moved to New Jersey and she effectively hid the children from their father for three months. 

The children’s father alleged that the mother’s actions alienated the children such that they no longer sought a relationship with him.  He sued his former spouse for intentional infliction of emotional distress. 

At trial the judge dismissed the father’s lawsuit. The principal grounds for the dismissal were the  finding that the facts of the case were not sufficiently egregious to satisfy a claim for intentional infliction of emotional distress. The court also said that the father’s allegations should be dealt with by the family court and not in a separate civil action. 

On appeal the trial judge’s decision was affirmed, but a different analysis of the law was invoked. The appeal court held that an action for damages alleging parental alienation was available, however, the best interests of the child and the doctrine of parens patriae must come into play. 

The appeal court said that the obvious witnesses in such a trial would be the children and the best interests of the child would not permit the action to proceed. The court did, however, confirm that the cause of action could be made out where the facts were so outrageous that justice required intervention. They suggested that prolonged alienation or repetitive allegations of unfounded sexual abuse may provide adequate grounds. 

Parental alienation is a complicated issue, but with the amendments to the Divorce Act, soon to come into effect, our legislators have recognized the dynamics associated with alienation by including a provision that a court must consider a parent’s ability to support the child’s relationship with the other parent, empowering the court to prioritize family connections when making parenting orders. 

Lawdiva aka Georgialee Lang

**This article was originally published by The Lawyer’s Daily ( thelawyersdaily.ca ) a division of Lexis Nexis Canada

Shark Tank Star Loses His Appeal

Robert Herjavec, of Shark Tank and Dancing With the Stars fame, not surprisingly, lost his appeal to overturn a $125,000 per month spousal support order resulting from a 4-week trial in 2018. While Wikipedia and other sites claim his net worth is $200 million dollars, the actual number is far less. Schedule A of the trial reasons indicate a net worth of $42 million, with no excluded property, and an annual personal income of approximately $6 million.

Herjavec asserted three grounds of appeal:

1.   The trial judge erred in her assessment of the respondent’s needs and means.

2.   The trial judge erred in her determination of spousal support by failing to apply, or incorrectly applying, this court’s decision in Halliwell, and the SSAGs.

3.   The trial judge erred in her order for indefinite spousal support by refusing to stipulate a termination date or review terms.

Was his appeal bound to fail? I would say yes, but I can imagine how strident he might be in pursuing this course of action. His position on spousal support at trial was prophetic of his misguided appeal. At trial, in the context of a 24-year marriage, with three children and a wife who left her professional career to raise the children, he argued that after paying $124,000 a month in temporary support since 2015, his wife had been overpaid by $500,000 and he sought reimbursement. He also suggested that spousal support ought to be immediately terminated. With respect to property division he asserted that he was entitled to a $3 million dollar equalization payment from his wife. The trial judge ordered him to pay $2.7 million to Ms. Plese to equalize family property.

Given the standard of review in spousal support appeals, the only ground of appeal that I examined in detail was the appellant’s position that the court failed to apply the principles of support found in Halliwell v. Halliwell 2017 ONCA 349.

Halliwell was a high net worth case, although paling in comparison to the Herjavec case, where Mr. Halliwell presented multiple grounds of appeal regarding property division and spousal support. At trial Mr. Halliwell was ordered to pay an equalization payment of $3 million dollars over 5 years and spousal support of $29,000 a month, based on his income of $1 million dollars per annum.

The appeal court held that the trial judge was fully justified in finding entitlement based on compensatory and non-compensatory factors, but in setting the quantum he needed to take into consideration that the equalization payment went a considerable distance towards satisfying both bases for the award, but he failed to do so. The Halliwell trial judge awarded support at the highest end of the Spousal Support Advisory Guidelines range, which the appeal court identified as an error in law, as well as the lack of investment income attributed to Mrs. Halliwell as a result of the equalization payment.

As a result Mr. Halliwell’s spousal support was reduced to $20,000 per month.

So how did the Herjavec appeal panel distinguish Halliwell? The appeal court reviewed the trial judge’s analysis:

“Here, in her analysis of entitlement, the trial judge looked at the respondent’s capital base resulting from the equalization payment and the potential investment income. The trial judge understood that the ability of the respondent’s capital base to meet her future needs could not be examined in isolation. She attributed some of the respondent’s capital base to the costs of residences, which were not income-producing, and the remainder to income-generating vehicles at an appropriate rate of return. She also compared the capital base of the respondent to that of the appellant. She found that, after the equalization payment, the appellant still had a substantial capital base through THG, his income of more than $5.5 million per year, his “luxurious” home in California, and other assets and savings.”

With respect to Mr. Herjavec’s argument that the trial judge erred by not stipulating a termination or review date, the appeal court noted that the judge’s award was for an indeterminate period, subject to variation based on a material change of circumstance.

Lawdiva aka Georgialee Lang

Season’s Greetings

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colour, age, physical ability, religious faith, choice of computer platform, or

sexual preference of the wishee.

“Shadow Trial” Argument Rejected in Special Costs Appeal

Berthin v. Berthin 2020 BCCA 376 is another high-conflict case described by the chambers judge as an “unenvious litigation odyssey”, an apt characterization considering the court action was commenced in 2011 and led to 19 reported decisions in the BC courts. Ten of the court’s judgments related to the sale of a property owned by the parties, an order sought by Mr. Berthin and then mightily resisted by him.

The latest foray in the appeal court was a leave to appeal application brought by Mr. Berthin as a result of a special costs order based on allegations of fraud advanced by him against his former spouse and the purchasers of said property.

In his application for leave, Mr. Berthin contended that the chambers judge erred by conducting a “shadow trial” and adjudicated the substantive issues as though there was a trial on the merits.

The appeal panel agreed that in most cases, when special costs are awarded, they will be ordered at the conclusion of a trial or hearing. In the case at bar, Mr. Berthin argued that he abandoned his case before the trial and consented to a dismissal of his action.

Relying on Lim v. Zhu 2019 BCSC 88 he submitted that the costs award was improper as the matter had settled without a hearing or trial. The relevant passage from Madam Justice Adair’s decisions in Lim v. Zhu was the foundation for Mr. Berthin’s appeal:

 “Because the parties settled, there will never be an adjudication of the facts, or findings about which party’s evidence was credible and reliable, or about whether parties conspired with one another, or a determination about whether a particular remedy was (or was not) justified. … The court should not now be expected to conduct a shadow trial to declare winners and losers for the purposes of a costs award.”

Unfortunately for Mr. Berthin, the appeal court distinguished Judge Adair’s case finding that Mrs. Berthin and the purchasers of the property declined to settle, and the cased was simply dismissed, “at which point the defendant’s entitlement to costs was triggered”, according to the Court of Appeal.

As well, in Lim v. Zhu some of the parties sought leave to discontinue before the trial and the remaining parties arrived at a settlement just before the trial commenced:

“There was, accordingly, no adjudication on the facts…but the settlement included a provision for costs to be “awarded upon application”.

Justice Adair declined to order costs against the settling parties but ordered costs payable by the discontinuing parties based on Ontario jurisprudence, citing Waterloo North Condominium Corp. v. Redmond 2017 ONSC 1304.

Finally, in dismissing the leave application the court remarked that Mr. Berthin’s case more resembled the facts in O’Connell Electric Ltd. v. BC Hydro 2006 BCSC 1632 where Mr. Justice Myers awarded special costs against a plaintiff who discontinued his action in unlawful conspiracy some five years after he started it. The judge considered the threshold issue: did the plaintiff have a sufficient factual basis upon which he could reasonably make allegations of conspiracy and dishonesty? Myers J. concluded that there was no proper evidentiary basis to do so and awarded special costs. The plaintiff’s appeal of the costs order was dismissed as was Mr. Berthin’s.

Lawdiva aka Georgialee Lang

Judge Remains Seized: Is That Ever an Error in Law?

The question of a judge’s refusal to “unseize” herself was considered by the Ontario Court of Appeal in DG v. AF 2015 ONCA 290.

The parties were engaged in high-conflict custody litigation, a scenario where the appellant mother, who had supervised access to her children, refused to accept the trial judge’s decision that custody be awarded to the children’s father. The trial judge remained seized until he was transferred to another judicial district. Thereafter a chambers judge heard multiple applications and seized herself of the proceedings.

The appellant sought to escape the chambers judge’s “influence”, arguing that the judge had no basis to seize herself indefinitely. She also suggested that the judge’s management of the case would put the judge in a continual conflict of interest because her applications to vary custody and access would inevitably involve the judge reviewing her own decisions.

The Court of Appeal rejected her allegations of unfairness and dismissed her appeal, saying that active case management was part of the underlying philosophy of the Family Law Rules. The court referred to Rules 2(5) and 39(9) of Ontario’s Family Law Rules, noting that these rules represent the “gold standard” for case management in the unified family courts, where case management is most active.

The court remarked that in a non-unified Superior Court site, litigants could not avail themselves of all of the benefits of active case management. Nonetheless, the court noted that nothing in the Family Law Rules prevented a judge from using her inherent jurisdiction to seize herself of a case. Further, the court confirmed that a judge’s seizure of a case permitted reasonably quick access to justice before a judge who is familiar with the relevant facts and the parties.

While this is certainly the goal of judicial case management, speedy access to a seized judge is often not achieved, given the busy calendars and travel of Supreme Court judges in British Columbia.

In BC the Supreme Court Family Rules provide for a Judicial Case Conference with expansive management powers available to judges or masters who conduct these conferences. Remedies available include court mediation, discovery orders, document production orders, a direction that any applications be made in a prescribed timeframe, additional orders regarding the timing of specific events in the litigation, and additional case conferences. In summary, the court can make any order or give any direction that will further the objectives of the Supreme Court Family Rules, which is the “just, speedy, and inexpensive determination of every family law case on its merits.”

Lawdiva aka Georgialee Lang

What to Do About Duplicate Divorce Filings?

It sometimes happens…estranged spouses, who are not in communication with one another, each go to a family law lawyer and each lawyer prepares and files court documents to obtain a divorce. So what happens if your lawyer files first, and the next day, a second Notice of Family Claim is filed, seeking a divorce. Or what about if both spouses file for divorce on the same day…it’s been done before, and that’s why the Divorce Act tells us what to do…

Section 3(2) states:

“Where divorce proceedings between the same spouses are pending in two courts that would otherwise have jurisdiction under subsection (1) and were commenced on different days and the proceeding that was commenced first is not discontinued within thirty days after it was commenced, the court in which a divorce proceeding was commenced first has exclusive jurisdiction to hear and determine any divorce proceeding then pending between the spouses and the second divorce proceeding shall be deemed to be discontinued.”

Pretty simple…if you file first, you go first, and the second divorce filing is deemed to be discontinued.

Each spouse filing on the same day is a bit more complicated. Section 3(3) says:

“Where divorce proceedings between the same spouses are pending in two courts that would otherwise have jurisdiction under subsection (1) and were commenced on the same day and neither proceeding is discontinued within thirty days after it was commenced, the Federal Court has exclusive jurisdiction to hear and determine any divorce proceeding then pending between the spouses and the divorce proceedings in those courts shall be transferred to the Federal Court on the direction of that Court.”

The upshot is that it appears that if one of you does not discontinue, the matter has to go to the Federal Court…a very bizarre solution…keep in mind that ordinarily divorces are heard in your local Supreme Court or Queen’s Bench, depending upon which Province you live in.

The case of Kumhyr v. Kumhyr 1997 Canlii 3078 BCSC sheds some light on this anomaly. In Kumhyr the husband filed for a divorce in the Nanaimo Supreme Court. On the same day his separated spouse filed for divorce in the Chilliwack Supreme Court. Ms. Kumhyr’s counsel referred to section 3(3) and argued that the case had to be transferred to the Federal Court. The Court said “no, you have misread section 3(3)”.

The Court explained that when section 3(3) refers to “proceedings in two courts that would otherwise have jurisdiction” it meant two courts, the Supreme Court in BC and another court in a different Province, since only the BC Supreme Court has jurisdiction over divorce in BC. The fact that the BC court locations were not the same did not make a difference.

In Kumhyr the spouses agreed that an order could made for custody of the children in the Nanaimo Registry and the final determination of which court would take charge would await further argument, another day.

If you have lots of money to spend on legal fees you could argue this point or you could come to a satisfactory solution, perhaps through mediation. Jurisdictional battles are expensive and time-wasting, especially one like this one.

Lawdiva aka Georgialee Lang

Can You Appeal An Interim Parenting (Access) Order?

The BC Court of Appeal recently considered the circumstances under which a parent can appeal an interim parenting order, in the case of Hammond v. Hammond 2020 BCCA 314.

The general rule is that if the interim order is made pursuant to the Divorce Act, there is an appeal as of right, but if the order is made under provincial legislation, the Family Law Act, “leave” or permission to appeal must be applied for in the Court of Appeal.

In Hammond the parents were married for 10 years, separating in 2018, two years after the birth of their son. In 2019 they entered into a consent order which included the following term:

” The child of the marriage shall, for the time being, continue to reside primarily with the Claimant mother. Provided however, the parties acknowledge their intention is to work toward an equal shared parenting regime so long as that objective meets the physical and emotional needs of the child. The parties further agree to review parenting time annually each September, or more frequently if agreed upon by the parties and circumstances warrant such a review.”

As an aside, terms such as this one are frequently inserted into agreements where one parent is of the view that shared parenting is not in a child’s best interests at the time the agreement is under negotiation. It is intended to provide some comfort or security to the other parent that his or her desire to be a fully involved co-parent is on the horizon. However, in my experience these terms suggesting an expansion of parenting time, rarely result in agreement, and most frequently, end up in court. Nonetheless, if a review term is the only way to provide an open door, it is better than nothing.

Mr. Hammond’s application to vary the consent order to expand his parenting time to an equal schedule was dismissed in July 2020. The court’s rationale was that the child’s anxiety, as alleged by the mother, had not subsided since the 2019 consent order and therefore, increased parenting time was not in the child’s best interests. Interesting that Mr. Hammond’s application was a variation application, which requires a material change in circumstance, and not a “review” as indicated in the consent order, which does not.

Unfortunately the judge’s reasons and the court order did not specify whether the dismissal order was made under the Divorce Act or the Family Relations Act, a fact central to the question of whether the appeal was allowed as of right. Mr. Hammond’s counsel also could not identify the applicable legislation.

As a practice point, if counsel is acting for a legally married litigant, the authority for an interim parenting order, in fact any interim order, should always be the Divorce Act. Of course, principles from the Family Law Act are relevant, as are cases, but the Notice of Application is rendered confusing if counsel cites the Divorce Act, as well as the provincial legislation. In marriage-like relationships the applicable legislation is the Family Law Act, thus eliminating any right to appeal an interim order.

Query if the distinction is fair to parents in marriage-like relationships? Of course, it is not….I wonder why this has not yet been addressed by legislators?

The reason it is unfair is because of the high bar that must be met to convince the Court of Appeal to grant leave to appeal an interim order. The criteria are as follows:

(1) whether the point on appeal is of significance to the practice; 

(2) whether the point raised is of significance to the action itself; 

(3) whether the appeal is prima facie meritorious or, on the other hand, whether it is frivolous; and 

(4) whether the appeal will unduly hinder the progress of the action. Power Consolidated (China) Pulp Inc. v. B.C. Resources Investment Corp. (1988), 19 C.P.C. (3d) 396 (C.A.

The appeal court has said on several occasions that it is only “in the most extreme circumstances” that leave will be granted to appeal family law interim orders. Munro v. Munro 2015 BCCA 530.

Twenty-four years ago, Madam Justice Proudfoot declared that access order are rarely final orders, because variations are applied and granted. She also said:

“…one could only imagine the number of access appeals that would arrive in this Court if leave were not required.” A.L.J. v. S.J.M. (1996), 81 B.C.A.C. 268.

Lawdiva aka Georgialee Lang

Court Cites Relevant Principles in Retirement and Spousal Support Cases

The issue of voluntary retirement and health issues are a common theme in spousal support termination cases and Bendall v. Bendall 2019 ONSC 3588 is illustrative of this. The Bendall’s married in 1979, after cohabitating for almost a year, and separated in 1994, making theirs a 16-year relationship. In late 1997 Mrs. Bendall was awarded custody of the two children and received an order that her husband pay her $800.00 a month in spousal support, terms that were contained in minutes of settlement between the parties. 

In 2000 Mr. Bendall applied for a divorce and sought to terminate spousal support. The divorce was granted, but the spousal support termination application was dismissed with a provision for a review of support in September 2005. After the parties’ son moved to his father’s home,  Mr. Bendall brought an application in January 2002 to terminate child support for his son and spousal support for his ex-wife. Child support was terminated, but his spousal support application was dismissed.

Not one to give up easily, Mr. Bendall brought another application to terminate support in March 2003, but it was adjourned generally and never resurrected. The review that had been ordered to take place in 2005 was not pursued by either party, instead in November of 2008 Mr. Bendall brought an application to terminate spousal support effective the date of the ordered review, namely September 2005, and a cancellation of all support arrears back to September 2005. 

In this 2008 application, Mr. Bendall deposed that he was earning $95,000 a year, was remarried to Susan, who earned $54,000 a year, and was supporting his second wife’s two children. We are not told the outcome of this application, but it appears that the support order remained in place until Mr. Bendall’s final termination application in 2019, which entailed a 2-day trial before Raikes J. 

The 2019 application to terminate spousal support was based on Mr. Bendall’s retirement on January 1, 2018 at the age of 59, with pension income of $59,000 a year, and a net worth of $348,000, not including his pension. His former wife estimated her total 2018 income at $36,000, which included $2,000 a month in employment income, $800 a month in spousal support, and the balance, payments from various government programs. She inherited $120,000 in 2016 and purchased and renovated a house with her brother. Her net worth was $139,000. She had no pension.

At the date of separation Mr. Bendall was employed at a refinery in Sarnia, Ontario, a position he held until his 2018 retirement. He advised the court that his health had been compromised when he had a car accident in 1999, and over the ensuing years had received various treatments and nerve block injections. In 2014 he began receiving spinal facet injections and was diagnosed with severe spinal stenosis. His work duties had been restricted because of his physical limitations and near the end of his employment, he moved into training to avoid the rigours of operational work.

He also testified that he was being harassed at work by upper management and had appealed to his union to intervene and hired a lawyer as well. His work hours were reduced, but eventually he decided his best course of action was to retire. He had worked for 38 years and was eligible to retire at age 55 with a full pension.

His former wife, Arlene, had been a mother and homemaker for a time. Her employment history was at low-paying, menial jobs including working in retail as a cashier or clerk, and “pitching garbage” at a waste plant, until 2012 when she returned to school to obtain computer skills and registered in a two-year law clerk program at a local college. 

She had suffered work-related injuries at the waste plant which affected her back and her hand and wrist and had been deemed 19% disabled. She also suffered from glaucoma and Meniere’s disease. At the time of trial, she was working for a lawyer 20 hours a week; filing, taking phone messages, banking, and other odd jobs. 

The trial judge reviewed the applicable law, as follows:

“1.      Parties cannot avoid support obligations by unilaterally deciding to leave the workforce, whether by retirement or otherwise: Cossette v. Cossette, [2015] O.J. No. 2073 (Div. Ct.) at para 13. See also Bullock v. Bullock, 2004 CanLII 16949 (ON SC)[2004] O.J. No. 909 (S.C.J.) at para 13 and the cases cited therein;

2.      Evidence that a payor voluntarily retired or withdrew from the workforce in order to frustrate the payment of support is an important fact militating against a finding of material change. In that case, the court may impute income to the payor up to the amount he would have earned had he not retired or withdrawn: Hickey v. Princ, 2015 ONSC 5596 (Div. Ct) at para 59, citing Teeple v. Teeple, [1999] O.J. No. 3565 (C.A.);

3.      The absence of evidence that the voluntary withdrawal from the workforce was for the purpose of reducing or avoiding the obligation to pay spousal support does not give rise to an automatic right to vary spousal support: Hickey v. Princ, supra, at para 60;

4.      The court must still consider the payor’s ability to pay support, which includes a consideration of his capacity to earn income either from the job he chose to leave or from other employment having regard to his circumstances: Hickey v. Princ, supra, at paras 60 and 64;

5.      Where the payor retires considerably earlier than expected and the recipient spouse has good reason to rely upon support being provided for several more years, the payor may well be expected to seek new employment opportunities: Dishman v. Dishman, 2010 ONSC 5239 at para 29;

6.      Whether the payor considered the financial circumstances and impact on the recipient spouse is one of the factors which the court will consider on an application to vary spousal support: Roy v. Roy, [2015] O.J. No. 73 at para 40;  Bullock v. Bullock, supra, at para 1

7.      The court should consider the motivation for retirement and whether it is reasonable in light of the ongoing spousal support obligations: Innes v. Innes, 2013 ONSC 2254 at para 30.

8.   There is no general rule that paying spouses must work to age 65. Likewise, a retirement after the paying spouse becomes eligible to retire with a full pension does not automatically constitute a material change that guarantees a reduction or termination of spousal support payable.”

The trial judge made the following findings:

  1. Mr. Bendall’s retirement was voluntary as he was not forced to retire by his employer or for health reasons;
  2. His employer had a longstanding record of accommodating his work restrictions due to his physical problems;
  3. He had been working for 38 years and could have retired at age 55 with a full pension. He saw retirement as a well-earned choice;
  4. He did not retire to avoid or reduce his spousal support obligations.

Raikes J. considered Mrs. Bendall’s argument that her ex-husband’s 2018 income was almost the same as his 2000 income when the support order was pronounced, and that he had failed to keep her apprised of his increases in income over the years.

The court disagreed, saying that a dollar in 2000 is worth more than a dollar 18 years later, the income may be comparable, but the value is not. Raikes J. also noted that Mr. Bendall was not obliged by any order or the minutes of settlement to provide updated income disclosure. With respect to this argument, it is likely that Mr. Bendall did provide income disclosure for each of his multiple unsuccessful termination applications.

The court held that Mr. Bendall’s retirement was a material change in circumstances and that his reduced income and retirement date was unknown at the time of the 2000 support order. The support order was terminated effective the date of his retirement and any monies paid after that date were to be repaid to Mr. Bendall. 

While this may seem like a harsh result, the court noted that the relationship had lasted 16 years, and the Spousal Support Guidelines provide for a duration of support for between 8 and 16 years, yet Mr. Bendall had supported his ex-wife for more than  20 years. The judge also found that Mrs. Bendall had 20 years to become economically independent and that her inability to become self-sufficient was not related to the marriage or its breakdown, but to physical ailments that occurred after the date of separation. 

Lawdiva aka Georgialee Lang

Canadians Spend Tens of Thousands on Spousal Support Court Cases

It has always been true that spousal support is one of the most difficult issues to resolve in family law cases. The introduction of the Spousal Support Guidelines in 2006 did provide some assistance by offering guidance to lawyers and judges with regards to monthly amounts and the length of spousal support payments. A review of recent Canadian case law indicates that spousal support remains a thorny issue that has caused many Canadians to spend hundreds of thousands of dollars attempting to  terminate or perpetuate spousal support payments. My observations, upon reading many recent decisions, can be summarized, as follows:

  1. Many litigants’ support orders fail to indicate whether the  initial order is compensatory or needs-based. In cases of indefinite support where the parties have entered into support agreements, the need to be clear about the basis for support cannot be overstated. Most often, support orders, resulting from contested applications, will provide evidence of their nature, either compensatory or needs-based, but consent orders and support agreements often do not. The cases indicate that where a spousal support order is compensatory, it is often more difficult for a payor to terminate support abruptly. Usually, transitional support for a time is ordered.
  2. Many Canadian women have ended up in poverty in their senior years, having relied on spousal support as their main source of income. While it may seem difficult for a 40 or 50 year old woman to retrain, family lawyers should encourage their female clients to be aware that only in the occasional case does spousal support continue after retirement. 

3. Payors who retire before the age of 65 without serious health issues, will find it very difficult to persuade the court that spousal support should be terminated absolutely. Of course, other factors come into play, including the nature of the support order, the length of the relationship, the age of the parties at separation, and the length of time support has been paid.

4. Retirement after the paying spouse becomes eligible to retire with a full pension does not automatically constitute a material change that guarantees a reduction or termination of spousal support payable.

5. While judges cannot compel people to work, they can and will impute income similar to income capable of being earned.

Lawdiva aka Georgialee Lang

Court Allows 68-Year Old to Retire Despite Spousal Support Obligation

Mr. Galo Angulo brought an application to terminate the payment of spousal support emanating from an order dated June 11, 2004 in the amount of $1,400.00 per month.  Angulo v.  Angulo 2019 ONSC 1456.  His ex-wife, Shirley Angulo, brought a cross-application seeking document production from 2005 to 2018, retroactive spousal support, and an order that Mr. Angulo’s second wife make full financial disclosure of her income and assets. She also sought the appointment of a chartered business valuator to determine the value of the increase of her former husband’s RRSP since the date of separation, and asked for an increase in spousal support based on his alleged “hidden income”. 

The parties were married for 28 years, separating in 2000. Galo had remarried and had two children, ages 9 and 12. Shirley remained unmarried. Galo was 68 at the time he brought his termination application. His ex-wife was 76, having retired at the age of 65.

The parties signed a separation agreement in 2002 whereby they divided their family property equally between them.  At the time of the agreement, Galo earned $140,000 per annum as a self-employed computer programmer. Shirley earned approximately $22,000 a year, working in a clerical position. Galo agreed to pay spousal support of $2,700 per month with an annual cost of living increase.

Shortly after their separation, Galo’s contract position was terminated. He remained unemployed for a year and took additional computer courses to upgrade his skills, but continued to pay spousal support from his savings. When he found new employment with CIBC Bank his salary was reduced to $73,000 per annum, but he acquired pension benefits.  

In June of 2004 the parties entered into a consent order varying his payment to $1,400.00 a month based on his decreased income.

The separation agreement also provided that “Obligations rising out of the remarriage of the Husband or the Wife are to be taken into account in determining whether there has been a material change in circumstances.”

In addition,  paragraph 20 of the agreement read:

“Further the parties agree that the support and property division of this agreement are inextricably intertwined and constitute and full and final financial settlement. More particularly, the husband and the wife acknowledge that he and she may be called upon during the rest of their lives to use, either wholly or in part, their capital for his or her own support and they agree to do so without recourse to the other.”

Galo worked at CIBC for almost 15 years, retiring in May 2018 at the age of 68. He deposed that the responsibilities of his job became too physically and mentally demanding of him. He was often required to work 18 hours a day and take phone calls and requests at all hours. As well, his computer skills from the 1980’s were becoming obsolete and the computer systems were being redesigned using new technology and skills that he did not possess. He deposed that if he wished to keep up with the bank’s requirements, he would have to upgrade his skills at his own expense, and still not be guaranteed a position because of the competition from younger candidates. 

His medical problems included sciatica, a torn ACL, degenerative disc disease, prostate issues, and high blood pressure. His doctor’s letter confirmed his ailments and indicated the Mr. Angulo relied on pain killers. The doctor did not state that his retirement was due to medical problems. He was not asked to retire, neither was he fired, but he said that his retirement was “obvious”.

Galo’s retirement income was approximately $32,500.00, comprised of his CIBC pension and CPP and OAS. His second wife’s income was $125,000, plus a discretionary bonus. His former wife’s retirement income was $37,500, consisting of spousal support, RRIF income, and CPP and OAS.  The parties’ respective net worth’s at the date of the hearing were similar. Mr. Angulo had assets valued at $877,000, while Shirley had property valued at $713,000.

With respect to Mrs. Angulo’s request for extensive financial documents, including from her ex-husband’s second wife, the court held that all that was required by the second Mrs. Angulo was income and expense information which had been produced. With respect to document production dating back to 2005, Mrs. Angulo argued that the cost of living clause had never been implemented, hence she was seeking full particulars of her ex-husband’s historical income and retroactive support of $82,000 based on alleged “hidden income”, “hidden assets”, and the absence of additional support based on the COLA clause.

The court declined to make the orders sought by Mrs. Angulo and also dismissed her application for an expert to evaluate her ex-husband’s RRSP. The court noted that the order of June 2004 did not call for an annual review of spousal support, and neither did Mrs. Angulo apply for an increase in support, until 2019 when she raised it in the context of her ex-husband’s termination application. Mr. Justice Horkins did not believe Mrs. Angulo’s suggestion that she was afraid of her husband, and hence did not pursue additional support or disclosure over the years. He remarked that the parties shared a pet dog for eight years, with consistent interaction between the former spouses, with no evidence of abuse or intimidation. 

The court determined that Galos’ retirement was justified and reasonable and ordered that support be terminated on April 1, 2019, four months after the date of the judgment and one year after Galo’s retirement.

Lawdiva aka Georgialee Lang