(FAMILY DIVISION)
Citation: Ezurike v. Ezurike, 2010 NSSC 156
Date: 20100419
Docket: 1201-059217, SFHD-036204
Registry: Halifax
Between:
Levi Chucks Ezurike
Petitioner
v.
Christie Chika Ezurike
Respondent
Judge: The Honourable Justice Beryl MacDonald
Heard: February 10 and March 29, 2010
in Halifax, Nova Scotia
Written Decision: April 19, 2010
Counsel: Richard Bureau, for Levi Ezurike
Cheryl Arnold, for Christie Ezurike
By the Court:
[1] On June 1, 2009 Mr. Ezurike signed a variation application in which he sought to vary a Corollary Relief Judgment issued in this proceeding dated November 1, 2007. In fact his application essentially requested an order to enforce the provision of that judgment relating to spousal support.
[2] On June 29, 2009 Ms. Ezurike signed a variation application in which she sought to vary the Corollary Relief Judgment requesting a termination of any requirement to pay spousal support or in the alternative a reduction in the amount to be paid.
[3] The Corollary Relief Judgment dated November 1, 2007 in paragraph 8 provided for the payment of spousal support by Ms. Ezurike to Mr. Ezurike as follows:
Commencing on the first day of the first full month following the division of (Mr.Ezurike’s) pension, (Ms. Ezurike) shall pay to (Mr. Ezurike) spousal support and an amount equal to the monthly reduction in his gross pension income that will occur as a result of the division of his employment pension.
[4] Both parties have agreed that as of May, 2009 Mr. Ezurike’s employment pension income was reduced in the amount of $764.77 per month as a result of the division of his employment pension pursuant to the provisions of the Corollary Relief Judgment. Therefore the first spousal support payment from Ms. Ezurike to Mr. Ezurike should have been made on June 1, 2009. However, Ms. Ezurike alleges there has been a significant change of circumstances since the date of the Corollary Relief Judgment justifying a variation of its terms in respect to spousal support.
[5] In rendering his decision dated January 4, 2007, (Ezurike v. Ezurike, 2006 NSSF 388) requiring Ms.Ezurike to pay spousal support Justice Dellapinna said:
[50] The Respondent seeks spousal support from the Petitioner citing, among other things, the differential in their income. After deducting from the Petitioner the child support that she will be paying and adding that income to the Respondent, the Petitioner’s total gross income (after deducting union dues) is approximately $42,188.00 per year and the Respondent’s is $42,048.00 per year. Because the Petitioner has more mandatory source deductions from her pay cheque, the Respondent will actually have a higher net monthly disposable income. After child support, income tax and other source deductions, the Respondent has a net monthly income of approximately $3,200.00 as compared to the Petitioner’s $2,435.00. The Respondent’s income supports four people the majority of the time whereas the Petitioner’s supports two. If these were the circumstances for the foreseeable future, I would not be inclined to order any spousal support. I believe that both parties are self-sufficient although the Respondent, considering that he has three children in his care, would be barely so. The pension division will change those circumstances.....
[54] Under these circumstances and having considered the factors and objectives listed in section 15.2 of the Divorce Act and having considered also the child support that I’ve ordered and how the child support award might be affected by the pension division, I order that the Petitioner pay to the Respondent spousal support in an amount equal to the monthly reduction in his gross pension income that will occur as a result of the division of his employment pension.....
[6] Though it was an issue during the hearing before Justice Dellapinna, he did not impute any income to Mr. Ezurike from his taxi business.
[7] The situation that existed on June 1, 2009, when Mr. Ezurike’s employment pension was finally divided, was quite different than the situation described by Justice Dellapinna in his decision. By this time I had rendered, on August 14, 2008, an oral decision determining that the child Abuchi was living with his father and the child Nkem with her mother. The two older children at the time were not living with either parent but it was known that Nneka was to return to attend Dalhousie University in the fall and while doing so she would live with her mother. The oldest daughter Ndidi was and still is self-supporting. On the evidence before me on August 14, 2008 I imputed income to Mr. Ezurike from his taxi business in the amount of $12,000 per year.
[8] In September 2009 Abuchi decided not to live with his father while attending university and instead is sharing accommodation with other students. Although Nneka is living with her mother she has received a scholarship to complete her studies and she’s carrying a full student loan and works part time. She already has a job offer and it is expected she will begin her employment in May/June 2010. Nkem continues to live with her mother but she does have access to a sport/training allowance one half of which she is attempting to save to use when she attends University in the fall of 2010. She is not expected to attend a University in Halifax. When she leaves neither of these parents will have a child living with him or her. Although Mr. Ezurike has suggested he provides money to all his children as he is able, I am satisfied, after reviewing the documents and testimony presented during this hearing, that Ms. Ezurike provides more financial support to the children but I also recognize that she has greater financial resources than does Mr. Ezurike.
[9] There has been a change of circumstances that does justify the request that I vary the Corollary Relief Judgment.
[10] Section 17 (7) of the Divorce Act lists the objectives a court must take into consideration in response to a variation request. These are the same objectives the court is directed to consider by section 15.2 (6) when making an original order. Those objectives are to:
( a ) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or it’s breakdown;
( b ) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
( c ) relieve any economic hardship of the former spouses arising from the breakdown of the marriage;
( d ) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.
[11] The Supreme Court of Canada in Moge v. Moge (1992), 43 R.F.L. 345 (S.C.C.) and in Bracklow v. Bracklow [1999] 1 SCR 420 confirmed that all four objectives are to be considered in every case. No one objective has paramountcy. If any one objective is relevant upon the facts a spouse is entitled to receive support.
[12] In Bracklow v. Bracklow, supra, the Supreme Court analysed the statutory objectives and held that they create three rationales for spousal support:
1. Compensatory support to address the economic advantages and disadvantages to the spouses flowing from the marriage or from the roles adopted in marriage.
2. Non-compensatory dependency based support, to address the disparity between the parties, needs and means upon marriage breakdown.
3. Contractual support, to reflect an express or implied agreement between the parties concerning the parties’ financial obligations to each other.
[13] In this decision I will not comment on the contractual objective because it is not a factor in the case before me.
[14] McLachlan, J. in Bracklow, supra, indicated that the basis for a spouse’s support entitlement also affects the form, duration, and amount of any support awarded.
[15] Examples of circumstances that may lead to a decision that a spouse is entitled to compensatory support are:
a) a spouse’s education, career development or earning potential have been impeded as a result of the marriage because, for example:
- a spouse has withdrawn from the workforce, delays entry into the workforce, or otherwise defers pursuing a career or economic independence to provide care for children and/or a spouse;
- a spouse’s education or career development has been negatively affected by frequent moves to permit the other spouse to pursue these opportunities;
- a spouse has an actual loss of seniority, promotion, training, or pension benefits resulting from an absence from the workforce for family reasons.
b) a spouse has contributed financially either directly or indirectly to assist the other spouse in his or her education or career development.
[16] Non-compensatory support incorporates an analysis based upon the concepts of economic dependency, need and ability to pay. If spouses have lived fully integrated lives, so that the marriage creates a pattern of economic dependence, the higher‑income spouse is to be considered to have assumed financial responsibility for the lower‑income spouse. In such cases a court may award support to reflect the pattern of dependence created by the marriage and to prevent hardship arising from marriage breakdown. L'Heureux‑Dubé, J. wrote in Moge v. Moge, supra, at p. 390:
Although the doctrine of spousal support which focuses on equitable sharing does not guarantee to either party the standard of living enjoyed during the marriage, this standard is far from irrelevant to support entitlement (see Mullin v. Mullin (1991), supra, and Linton v. Linton, supra). Furthermore, great disparities in the standard of living that would be experienced by spouses in the absence of support are often a revealing indication of the economic disadvantages inherent in the role assumed by one party. As marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution (see Rogerson, "Judicial Interpretation of the Spousal and Child Support Provisions of the Divorce Act, 1985 (Part I)", supra, at pp. 174‑75). (emphasis added)
[17] It is not clear from Justice L'Heureux‑Dubé’s, decision whether entitlement arising from a “pattern of dependence” is compensatory or non-compensatory. A pattern of dependence may create a compensatory claim because it can justify an entitlement even though a spouse has sufficient income to cover reasonable expenses and might be considered to be self-supporting. This often is described as the “lifestyle argument” - that the spouse should have a lifestyle upon separation somewhat similar to that enjoyed during marriage.(Linton v. Linton 1990 CarswellOnt 316 (Ont. C.A.) A lengthy marriage generally leads to a pooling of resources and an interdependency even when both parties are working. Usually the recipient spouse will never be able to earn sufficient income to independently provide the previous lifestyle. This would form the basis of a compensatory claim but does not necessarily entitle a spouse to lifetime spousal support. The essence of a compensatory claim is that eventually it may be paid out. This leads to a discussion about the quantum and duration of the claim.
[18] Once it is decided that a spouse is entitled to spousal support, the quantum (amount and duration) is to be determined by considering the length of the relationship, the goal of the support (is it compensatory, non-compensatory or both), the goal of self-sufficiency, and the condition, means, needs and other circumstances of each spouse.
[19] There will be cases when the analysis may indicate that the only way to adequately address the compensatory or non-compensatory claim is to continue support for significant periods of time possibly during the entire life of the recipient or payor. (Rondeau v. Kerby, 2004 CarswellNS 140 (N.S.C.A.) This most often will occur in respect to lengthy marriages where there is significant income disparity.
[20] Generally a non-compensatory claim in a short to mid length marriage is satisfied when a spouse becomes self-supporting and, in such a case, neither the payor spouse’s greater income nor the inability of a recipient spouse to replicate a previous lifestyle, is a factor entitling a spouse to continuing support. Self-sufficiency, however, is a relative concept. It constitutes something more than an ability to meet basic living expenses. It incorporates an ability to provide a reasonable standard of living from earned and other income exclusive of spousal support.
ENTITLEMENT
[21] Justice Dellapinna’s decision does not specifically address the question whether Mr. Ezurike was entitled to compensatory spousal support. His decision suggests Mr. Ezurike’s claim was for non-compensatory support based on need and ability to pay issues that would arise once his pension was divided while he was supporting three children in his home.
[22] Justice Dellapinna considered Mr. Ezurike to be self-supporting at a net income of approximately $3,200.00 per month ( $38,400.00 net per year ), even though he at that time had three other persons besides himself for whom he was financially responsible. This net did include child support and his undivided employment pension income. Mr. Ezurike, because of the reduction in his employment pension, now has a gross monthly income of $2,743.98, from which he essentially needs to support himself. The net monthly income available to him is $2,483.98; this is $716.02 less per month than the net income he had in 2006. However since June 1, 2009 he effectively had no children to support. Abuchi may have been living with him from June to September but I am not satisfied that providing him with food and shelter significantly increased Mr. Ezurike’s cost of living. There is no order requiring him to pay any specific child support although my decision of August 14, 2008 does require that he is the person to whom Abuchi was to turn for any financial support he would need while in university. It appears on the evidence before me during this hearing that Abuchi turns to his mother rather than to his father for assistance. I have no proof of any significant expenditures made by Mr. Ezurike on Abuchi’s behalf.
[23] The parties were married for 18 years. They met in Nigeria in October 1986 and were married just over a week later. This was the first marriage for Ms. Ezurike who was 22 at the time. Mr. Ezurike was 46 and this was his second marriage. Mr. Ezurike had been living in Canada for many years prior to this marriage. After the marriage the parties took up residence in Nova Scotia.
[24] Mr. Ezurike was employed with the federal government first with the Department of Transportation and later with the Department of Fisheries and Oceans. He also maintained a taxi drivers license and drove a cab on a part-time basis. Mr. Ezurike retired from the federal government on February 12, 2004. He is now 69 years of age; Ms. Ezurike is 45.
[25] Shortly after their marriage these parties had the first of their four children, twins who were born September 25,1987. The two younger children were born, one in May 1990 and the other in March 1992. Ms. Ezurike was initially a stay-at-home mother. In 1991 she began her studies in Early Childhood Education and she worked part time at a daycare in the summer of 1992. She studied part-time beginning 1994 eventually attaining her Bachelor of Arts degree from Mount St. Vincent University. She did take one year off from work in 1999 to study full time and she graduated from university in 2000. She then continued on to study for her Bachelor of Social Work degree from Dalhousie University from which she graduated in the spring of 2002.
[26] Justice Dellapinna in his decision dated March 7, 2006, ( Ezurike v. Ezurike, 2006 NSSC 73), states that Ms.Ezurike’s testimony was that Mr. Ezurike provided her with little moral, physical or financial assistance during the years she studied. She testified she had primary responsibility for the children. During this proceeding Ms.Ezurike denied that Mr. Ezurike provided any financial assistance to her. She borrowed money in order to pursue her education. Mr. Ezurike provided no information that would negate her testimony. It is true Mr. Ezurike’s financial resources were used to support the family during this time but Ms. Ezurike also provided income because she was employed frequently during this period. While she had some economic dependency upon Mr. Ezurike, he had no economic dependency upon her.
[27] In July 2002 Ms.Ezurike began her employment with the Department of Community Services. On October 18, 2004 the parties separated. As a result they did not establish any lifestyle based upon her income. When the parties separated they were in considerable debt and had few matrimonial assets.
[28] Mr. Ezurike is not entitled to spousal support on a compensatory basis. He did not suffer any economic disadvantage arising as a result of this marriage. He did suffer an economic disadvantage when his pension was divided but I am not satisfied that this division alone can form the basis of a compensatory claim for spousal support. If this was so every property division could be “undone” through such claims.
[29] In 2006 Ms.Ezurike’s annual income, as reported in the Corollary Relief Judgement, was $49,748.14 while the annual income of Mr.Ezurike was $34,488. Adding back Ms. Ezurike’s union dues provides an annual income in 2006 of $50,332.10. From these incomes Justice Dellapinna calculated the net monthly incomes referred to earlier in this decision. He did not impute any additional income to Mr. Ezurike from his taxi business.
[30] Mr. Ezurike continues to drive a taxi although he testified this is a hobby from which he receives little net income. Ms. Ezurike testified that while they were living together it was not uncommon for him to take home $100.00 to $200.00 per night. Mr. Ezurike has now provided his “records” of the number of pickups he has each day he works. He has produced spreadsheets and has for the most part reconciled that information with what appears on his tax returns. His lifestyle since June 1, 2009 does not raise the suggestion that he has greater income than he now declares. He has reported his taxi income at $5,370 per year. Under these circumstances I do not impute any additional income to him from June 1, 2009.
[31] In 2009 Ms. Ezurike’s annual income was $66,864.00. Beginning June 1, 2009, with the reduction of his employment pension income, and the inclusion of a modest sum, $ 447.50 per month, from his taxi business, Mr. Ezurike’s annual income will be $32,927.76. He alleges he cannot meet his monthly budget on this income but that is not the sole criteria to be used to decide whether or not an individual is entitled to non-compensatory spousal support. An assessment must be made whether the individual can meet his or her reasonable living expenses; whether there was a lifestyle shared by the couple during their marriage entitling the applicant to have that lifestyle, (which he or she cannot reproduce), replicated to the extent possible by providing the applicant with spousal support; whether there is economic dependency requiring spousal support to provide some financial security until the recipient can adjust to the consequences of the marriage breakdown.
[32] In examining Mr. Ezurike’s budget I note he pays $5,400.00 per year for his Diabetes medication. Given his age and thus his ability to participate in the Nova Scotia Seniors’ Pharmacare Program, and noting he still pays into a health insurance plan, perhaps this amount may be reduced by receipts from those programs. I am not satisfied he must set aside $200.00 per month for “ House Repairs, Maintenance, Appliance & Furniture Repairs and Replacement”. I am not satisfied he will have a continuing “Post Secondary School Expense” for Ndidi. He has an unexplained “Miscellaneous” expense of $115.50 per month. In short Mr. Ezurike may be able to make some adjustments to his budget. It is recognized however that he is not requesting an amount to completely cover his monthly deficit ($1,517.94), he merely wants to replace his lost pension income.
[33] As I understand the decisions of Moge and Bracklow an award of spousal support must be a principled decision. The mere existence of a higher income does not entitle and individual to spousal support. There must be something arising out of the marriage itself that gives one party a claim against the income of the other.
[34] In this case Ms. Ezurike did not have a higher income than Mr. Ezurike until after their separation. Mr. Ezurike was never economically dependent upon her. There was no pattern of dependence. He now has no children to support in his household. Length of a marriage is often a factor but generally its significance relates to the issue of economic dependency. Length of marriage alone cannot justify a spousal support award to a person who might otherwise be considered self -sufficient. Is Mr. Ezurike self -sufficient? I am satisfied with the income available to him he is or should be able to meet his reasonable economic needs and that he has been self-sufficient since June 1st , 2009. As a result I will vary the Corollary Relief Judgment from June 1, 2009 to provide that no spousal support is to be paid by Ms. Ezurike to Mr. Ezurike.
[35] Ms. Ezurike shall have costs in the amount of $750.00, an amount suggested by her counsel in the event of a successful outcome.
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Beryl MacDonald, J.