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Epstein’s This Week in Family Law | Material Change

Application to vary a spousal support order based on material change dismissed in recent decision.

Epstein’s This Week in Family Law

By: Philip Epstein

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Material Change and the SSAG

Bhandhal v. Bhandhal, 2015 CarswellOnt 2425 (Ont. S.C.J.): The husband moves to vary his spousal support order because he has been paying support for just under 19 years after a marriage of that duration. The parties never had any children together, and the husband has been paying spousal support for a little over 18 years. It was varied in 1999 and now amounts to $823 per month. The husband has remarried and has a child. The husband is paying child support and has total monthly support obligations of about $1,800 of which about half are tax deductible. The husband is 55 years old and works as a bus driver for the city of Hamilton. He is in poor health, but is still holding on to his job, but barely. His medical reports indicate that he may not pass his physical at his next renewal, and thus may be forced out of work. He may have cancer.

The husband clearly has lots of financial problems, but then again so does his former wife. She is now 59 years of age and in poor health. She has no job skills and earns a very small amount of money. She lives in her brother’s home with his family, but has savings of approximately $260,000 and no debt. Justice Lemon finds that she will need her savings to fund her old age and retirement.

Turning to the variation cases, Justice Lemon cites Droit de la famille - 091889, 6 R.F.L. (7th) 1 (S.C.C.) and Dufresne v. Dufresne, 2009 CarswellOnt 5617 (Ont. C.A.).

The husband argues that he assumed new family responsibilities and has deteriorating health, and that under the Guidelines he is paid for the absolute limit of the duration set in the Guidelines. Justice Lemon notes that the duration for which the husband has been paying spousal support is at the upper end of what the SSAG has suggested. The amount of support being paid by him is much less than that suggested by the SSAG.

Justice Lemon finds that the husband’s real health problems are in the future, and when he is laid off from his employment, that will constitute a material change, but not yet.

Justice Lemon finds that the husband has cherry picked the part of the Guidelines he likes, the duration part, but has ignored the quantum part. He has been paying thousands of dollars less than the Guideline amount each year for many years, and thus even if the duration is arguably over, the wife’s compensatory claim is still significant and unpaid. Accordingly, Justice Lemon dismisses the application. I think the key factor here is that the amount of support is actually very low in relation to the husband’s income, and the husband can still afford the low amount of support that he is paying. Nevertheless, the wife has significant savings, and the husband does not. If this was a case of first instance, then I think a reasonable result would have been to set a termination date in accordance with the durational limits of the Guidelines. However, this was a variation application and in the end, Justice Lemon does not find that there was a material change of circumstances. Absent a material change of circumstances, he is without jurisdiction to change the last court order. Hence, no termination date yet for this husband, but just like Christmas, it is coming.

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