SUPREME COURT OF NOVA SCOTIA
(FAMILY DIVISION)
Citation: Barnes v.
Barnes, 2012 NSSC 21
Date: 20120118
Docket: SFHMCA-059649
Registry: Halifax
Between:
Nelson Claude Barnes
Applicant
v.
Eudora Beulah Barnes
Respondent
Judge: The Honourable Justice Elizabeth Jollimore
Date: January 18, 2012
Counsel: Nelson Barnes, self-represented
Eudora Barnes, self-represented
By the Court:
Introduction
[1] Nelson and Eudora Barnes began to cohabit in the spring of 1988. They married in 1999 and separated in 2008 after living together for nearly twenty years.
[2] On April 3, 2008, they signed a comprehensive separation agreement which was registered as an order of the Supreme Court pursuant to section 52(1) of the Maintenance and Custody Act, R.S.N.S. 1989, c. 160, on July 25, 2008.
[3] Mr. Barnes applied to terminate his spousal maintenance payments on October 5, 2011. His application is pursuant to section 37(1) the Maintenance and Custody Act. In support of his application, Mr. Barnes filed an affidavit, a Statement of Income and a Statement of Expenses. Ms. Barnes opposes his application and has filed an affidavit, a Statement of Income and a Statement of Expenses.
The separation agreement
[4] In the separation agreement, Mr. Barnes’ annual income was stated to be approximately $50,000.00. He was working at Guysborough Transfer Ltd. Ms. Barnes worked at Gordon Stirrett and Associates and earned an annual income of approximately $27,000.00, according to the agreement.
[5] Schedule “B” of the agreement provided that Mr. Barnes would pay Ms. Barnes $250.00 each week for so long as she owned the matrimonial home: she intended to list it for sale as soon as it Mr. Barnes’ interest in the home was released by his trustee in bankruptcy and title to the home was placed in her name. Once the matrimonial home was sold, Mr. Barnes would pay monthly spousal maintenance of $300.00 “for [Ms. Barnes’] maintenance and support, said payments to be made on the first day of each and every month and continuing thereafter indefinitely.”
[6] The agreement specified a process for seeking to vary spousal maintenance in section 26. It does not appear that this process has been followed: Ms. Barnes hasn’t objected to the failure to follow the process and there’s no consequence specified for the failure to follow it.
[7] Schedule “A” of the agreement addressed the division of assets and responsibility for debts. In it, Mr. Barnes agreed to transfer his interest in the matrimonial home to Ms. Barnes once his interest was released by his trustee in bankruptcy. Ms. Barnes would be responsible for all costs associated with the home until it was sold. They dealt with ownership of their cars and land registered in Ms. Barnes’ name in Trout River, Newfoundland. In terms of their debts, they agreed that on the sale of the matrimonial home, Ms. Barnes would “apply the balance remaining of the sale proceeds against all matrimonial debts existing as at the date of this agreement.” They also agreed that if the sale proceeds weren’t sufficient to repay the debts fully, Mr. Barnes would “be responsible for and pay one half (1/2) of these remaining debts.”
Registration under the Maintenance and Custody Act
[8] Section 52(1) of the Maintenance and Custody Act allows for the registration of an agreement as a court order where one party consents to its registration. The registered agreement and any registered amendments have the effect of an order under the Act, according to section 52(3) of the Act. The Maintenance and Custody Act is limited in the terms of agreements which it can recognize as court orders: it cannot recognize terms relating to property or pension division. Only those terms relating to child and spousal maintenance and parenting can be recognized as court orders through registration.
[9] In my decision, I refer to Mr. Barnes’ payments as spousal “maintenance”. I do this because the Maintenance and Custody Act uses that word and the agreement is registered as an order under that Act. I do note that the parties’ agreement calls these payments spousal “support” and, in fact, Schedule “B” of their agreement acknowledges that the payments “may have certain objectives” and quotes the objectives stated in section 15.2(6) of the Divorce Act (though incorrectly citing them to section 15(7) of the Act). Since registration gives the agreement the effect of an order, I will refer to the agreement as an order.
Litigation history
[10] In December 2008, Mr. Barnes applied to terminate his spousal maintenance payments. His application was discontinued in 2009 because six months had passed and he had not filed the documents necessary to advance his application.
[11] In 2010, Mr. Barnes again applied to terminate his spousal maintenance payments. Again, he failed to file all the documents necessary to advance his application. One month later, Ms. Barnes applied pursuant to Rule 15.08 of Nova Scotia Civil Procedure Rules (1972) “to bring into force the parties’ agreement”. When the application was to be heard, the parties’ counsel advised then-Justice O’Neil that an settlement had been reached. This settlement specified the amount of debt that Mr. Barnes owed ($7,500.00) and required him to pay this to Ms. Barnes at the rate of $125.00 per month starting November 1, 2010. Mr. Barnes was to provide post-dated cheques annually. Mr. Barnes also agreed to pay “an additional amount, as required, in the event that interest rates increase” on the debt that Ms. Barnes was paying. The settlement neither changed (nor referred) to Ms. Barnes’ spousal maintenance.
[12] A periodic execution order was issued on September 30, 2011: Mr. Barnes had made no payments toward the matrimonial debts since May 2011.
Analytic framework
[13] Mr. Barnes’ current application to terminate his spousal maintenance was made on October 5, 2011 and is pursuant to section 37(1) of the Maintenance and Custody Act which states that I may “may make an order varying, rescinding or suspending, prospectively or retroactively, a maintenance order [ . . . ] where there has been a change in circumstances since the making of the order”. The relevant order is the order that resulted from the July 25, 2008 registration of the agreement. There are no more current orders addressing maintenance.
[14] Section 37(1) refers to “a change in circumstances since the making of the order”. Nothing in life is static: after an order has been made there will be many changes in the parties’ lives, however, not every change is sufficient to merit varying an order.
[15] In my view, the jurisprudence which has developed with regard to variation applications pursuant to the Divorce Act is applicable to variation applications pursuant to the Maintenance and Custody Act.
[16] In a variation application there must be proof of the circumstances at the time of the order sought to be varied and proof of the circumstances which are alleged to be sufficient to merit varying the order. In cases decided under the Divorce Act, this is referred to as a “material change” because that’s the phrase used in the Divorce Act. A material change is a change which “if known at the time [of the order sought to be varied], would likely have resulted in different terms” according to the Supreme Court’s decision in Willick, 1994 CanLII 28 (SCC) at paragraph 20. While Willick addresses child support under the Divorce Act, in G. (L.) v. B. (G.), 1995 CanLII 65 (SCC) both the majority (Justice Sopinka at paragraph 73) and the minority opinions (Justice L’Heureux-Dubé at paragraphs 49 – 51) confirmed that Willick’s analysis is applicable to spousal support variation applications.
[17] In L.M.P. v. L.S., 2011 SCC 64, at paragraph 35, Justices Abella and Rothstein said that “In general, a material change must have some degree of continuity, and not merely be a temporary set of circumstances.”
The basis for Mr. Barnes’ variation application
[18] In his testimony, Mr. Barnes explained that he wants to terminate his spousal maintenance payments for a number of reasons. First, he said that he paid his share of the bills. Mr. Barnes said he paid $300.00 per month for the last three years and that he was supposed to pay one-half of the family bills. He said he’s paid Ms. Barnes over $10,000.00 though he was only required to pay her $7,500.00. Second, Mr. Barnes said he has a little girl to support. His daughter is two and one-half years old and she doesn’t live with him. Mr. Barnes testified that every month, he pays child maintenance of $250.00 and contributes an additional $100.00 toward her daycare.
[19] In his affidavit, Mr. Barnes explained his variation application is “due to [his] expenses”. He filed a Statement of Income and a Statement of Expenses which outline his current financial circumstances. His Statement of Expenses indicates total monthly expenses of $2,487.00, exclusive of his repayment of the family debt. His monthly child maintenance expense is shown on the Statement as $200.00, not the $350.00 he testified he pays. Given the discrepancy between his testimony and his Statement of Expenses, I am not certain how much Mr. Barnes pays to support his daughter.
[20] Mr. Barnes didn’t know what his total income was in 2011 when he worked for three different employers: Western Logistics; Cameron Contracting Limited; and Strescon.
[21] Mr. Barnes worked at Western Logistics for two years. According to his tax returns, in 2009 he earned $29,718.00 and in 2010 he earned $35,961.00. Mr. Barnes did not tell me how long he worked at Western Logistics in 2011. According to his paystubs, he began to work at Cameron Construction in September, so he likely did not work at Western Logistics after August. It’s not clear, however, that Mr. Barnes worked at Western Logistics until August: he may have been unemployed for a period of time. Assuming he did work until September, I estimate his earnings from Western Logistics as equal to two-thirds of the average of his 2009 and 2010 earnings from that same employer. This amount is $21,893.00. I acknowledge that this is an estimate based on the best possible assumption: Mr. Barnes was employed at Western Logistics until the end of August 2011.
[22] Mr. Barnes says he worked at Cameron Construction for “a couple of months” in 2011. He provided two of his weekly paystubs from Cameron Construction. He was paid $15.00 per hour. His hours were variable: one paystub records more than sixty hours work, while another shows less than thirty-five. Averaging his earnings over a two month period, I estimate that he earned $6,420.81 from Cameron Construction.
[23] Mr. Barnes says he began to work at Strescon Limited in December 2011 after being off work for “about one month”. At Strescon he earns $15.65 per hour. His work week is forty hours. If he works more than eight and one-half hours in a day, he is paid overtime at a rate of time and one-half ($23.47 per hour). He doesn’t know his future at this job: he’s on probation and he says that he’s worked for this employer before and been laid off in the past. He says he’s guaranteed work until February or March. He admitted that there’s been no indication of any coming lay off. Based on this information, I estimate that Mr. Barnes earned $1,878.00 from Strescon in December: forty hours per week for three weeks.
[24] Based on the information he provided and the assumptions I’ve made, I find Mr. Barnes’ 2011 income was, at best, roughly $30,200.00. Prospectively, I estimate his annual income from Strescon will be $32,500.00 (exclusive of any overtime earnings).
[25] Ms. Barnes opposes the request to terminate her maintenance. She says that Mr. Barnes confuses his payment for her support with his contribution to the couple’s debts. She testified that her maintenance is necessary for her survival and was agreed upon to compensate her for their long relationship and her medical condition. Ms. Barnes has rheumatoid arthritis and her medication costs $2,000.00 each month. She has insurance coverage for her medication. She lives in an apartment, renting out a room in it for $500.00 each month. She also says that Mr. Barnes recently purchased a used car after three years without one and suggests he wants to reduce his maintenance so he can pay expenses relating to his car. According to Mr. Barnes’ Statement of Income, his monthly expenses for his car are $569.00 and he notes that $100.00 of this amount is for picking up his daughter. He makes a car payment of $251.00 and pays $218.00 for insurance, license, registration and inspection and budgets $20.00 for public transit or taxis.
[26] According to Ms. Barnes’ 2008 tax return, her income at the time the agreement was executed was $26,797.00. It increased by approximately $1,000.00 in 2009 and was $33,890.00 in 2010. According to the most recent paystub she provided, it’s likely her 2011 earnings were approximately $32,000.00. I calculate this by extrapolating her earnings and vacation pay from nineteen bi-monthly payments to twenty-four and adding the amount she’s received as a bonus.
Has there been a material change in circumstances?
[27] The agreement recited that Ms. Barnes’ income was approximately $27,000.00 and Mr. Barnes’ was $50,000.00. This recitation was roughly correct for Ms. Barnes: her 2008 tax return showed her income was $26,797.00 that year. However, Mr. Barnes’ income was $42,981.00 according to his 2008 tax return. In the years since the agreement was registered, Mr. Barnes’ annual income has not exceeded $36,000.00. In the coming year, his income, exclusive of overtime earnings, is likely to be in the range of $32,500.00, an amount that’s approximately seventy-five percent of his actual income in 2008 and sixty-five percent of the annual income stated in the agreement.
[28] Mr. Barnes’ income is less than it was when the order was registered. This reduction has persisted in 2009, 2010 and 2011 and I estimate it will continue in 2012.
[29] With regard to Mr. Barnes’ claim that his application is “due to his expenses”, I’m not able to say whether there’s been a change in his circumstances relating to his expenses since 2008. Mr. Barnes did not file a Statement of Expenses indicating his expenses in 2008. From the evidence, I know he now has a car payment and he incurs costs for operating his car. According to the order, he had a car in 2008. As well, I know he has an obligation to maintain his daughter and she was born two and one-half years ago. However, I don’t know what Mr. Barnes’ expenses were in 2008 and these expenses may have replaced other expenses which are no longer incurred. As a result, I cannot conclude that Mr. Barnes’ current expenses are a change in his circumstances. As Justices Abella and Rothstein wrote at paragraph 44 in R.P. v. R.C., 2011 SCC 65: “Normally, an applicant should adduce documentary evidence establishing the applicant’s specific financial circumstances at the time of the original order.” The majority allowed that in some cases I might be able to make findings about what the circumstances were when the order was made “based on non-documentary, circumstantial or indirect evidence other than documentary evidence of [his] financial circumstances at the time of the original order.” That isn’t possible here because there’s been no reference of any sort to his 2008 expenses.
[30] There is also Mr. Barnes’ assertion that he has paid his share of the bills and, having paid more than $10,000.00 in spousal maintenance, he has exceeded his obligation. The order contained two financial obligations. In Schedule “B”, the order outlined Mr. Barnes’ spousal maintenance obligation. The obligation was to pay Ms. Barnes monthly maintenance of $300.00 indefinitely. Schedule “A” described Mr. Barnes’ obligation to repay the couple’s debts. At the time of the order, the home hadn’t been sold so it wasn’t known whether the proceeds from its sale would fully repay the debts, or how much debt would remain unpaid. If any debts remained unpaid after the home’s sale proceeds were applied to them, Mr. Barnes was to pay one-half of them.
[31] As it happened, the proceeds from the sale of the home weren’t enough to repay all the debts and $15,000.00 remained owing. This amount was divided equally between the spouses and, in 2010, Mr. Barnes consented to an order to pay $7,500.00. He agreed to pay the $7,500.00 by making monthly payments of $125.00.
[32] The order from 2008 contained two different and distinct obligations: an obligation to maintain Ms. Barnes and an obligation to share in the repayment of the couple’s debts. Meeting one obligation didn’t absolve Mr. Barnes from meeting the other. Mr. Barnes is required to meet both obligations: that Mr. Barnes has paid more than $7,500.00 in spousal maintenance doesn’t satisfy his obligation to pay family debts.
[33] To summarize, I cannot conclude that there’s been a change in Mr. Barnes’ expenses since 2008. Nor can I find that there’s a change in circumstances because he has paid spousal maintenance in an amount that exceeds the amount of debt he owes. So, these two reasons do not support his request for a variation.
[34] Depending on whether I start from the income stated in the order or the amount of his actual earnings in 2008, Mr. Barnes’ income has decreased by twenty-five or thirty-five percent. This is an ongoing and significant decrease in Mr. Barnes’ annual income. I find that this is a change in circumstance which allows me to vary the spousal maintenance order.
What should I order?
[35] According to Justices Abella and Rothstein, who wrote the majority reasons in L.M.P. v. L.S., 2011 SCC 64, at paragraph 50, where a spousal support agreement is incorporated into the order, a variation order should reflect the objectives of spousal support stated in section 17(7) of the Divorce Act, consider the material change and consider the existence of the separation agreement and its terms as a relevant factor. They write that I should limit myself “to making the variation which is appropriate in light of the change. The task should not be approached as if it were an initial application for support under s. 15.2 of the Divorce Act.”
[36] Applying what Justices Abella and Rothstein have written, I am to consider:
(a) the objectives of an order varying spousal maintenance under the Maintenance and Custody Act;
(b) the decrease in Mr. Barnes’ income; and
(c) the Barnes’ separation agreement and its terms.
[37] And so I turn to these considerations.
The objectives of an order varying spousal maintenance under the Maintenance and Custody Act
[38] Unlike the Divorce Act, the Maintenance and Custody Act doesn’t contain an express statement of objectives for an order varying spousal maintenance. In determining how to approach this, I’ve considered the fact that the objectives stated in section 17(7) of the Divorce Act (to which Justices Abella and Rothstein referred) are the same as the objectives stated in section 15.2(6) of that Act. In order words, the objectives of an order varying spousal support are the same as the objectives on an initial order for spousal support: notably, however, these objectives are in the context of the changed circumstances that I have found to exist.
[39] The Maintenance and Custody Act does list factors to be considered in ordering spousal maintenance. To replicate the analysis that the Supreme Court mandates in L.M.P. v. L.S., 2011 SCC 64, I’ve considered these factors as equally relevant in variation applications, just as the factors that relate to an initial order for spousal support are considered in variation applications under the Divorce Act. I recognize that these objectives are viewed in a different light when in the context of a variation application.
[40] According section 4 of the Maintenance and Custody Act, the factors to be considered in ordering spousal maintenance are:
(a) the division of function in the spouses’ relationship;
(b) the spouses’ express or tacit agreement that one will maintain the other;
(c) the terms of a marriage contract or separation agreement between the spouses;
(d) custodial arrangements made with respect to their children;
(e) each spouse’s obligation toward any children;
(f) either spouse’s physical or mental disability;
(g) a spouse’s inability to obtain gainful employment;
(h) a spouse’s contribution to the other’s education or career potential;
(i) the reasonable needs of the maintained spouse;
(j) the reasonable needs of the spouse obliged to pay maintenance;
(k) the separate property of each;
(l) the ability to pay maintenance, considering the obligation to pay child maintenance in accordance with the Guidelines; and
(m) the ability of the maintained spouse to contribute to her own maintenance.
[41] I’m able to distil these factors into a number of objectives. One objective is to recognize the impact of the marriage on the spouses: this arises from considering their division of labour, their express or tacit agreement about maintaining one or the other, the terms of a marriage contract or separation agreement, the parenting arrangements for their children, the contribution to a spouse’s education or career potential and the separate property of each. The factors speak to the reasonable needs of each spouse suggesting that one objective is ensuring that spouses are left in a position which satisfies their reasonable needs, having regard to all the circumstances of their marriage. Other factors speak to self-sufficiency: the ability of a maintained spouse to maintain herself, a spouse’s inability to obtain gainful employment and a spouse’s physical or mental disability. These factors suggest the objective of promoting self-sufficiency. The factors also address the maintenance of children, whether the couple’s own or “any” child. From this, I believe there is an objective of recognizing the part that meeting children’s needs may play.
[42] Looking at the objectives I’ve distilled from the factors stated in section 4 of the Maintenance and Custody Act, my variation order is to reflect the objectives of:
(a) recognizing the impact of this marriage on each spouse;
(b) ensuring each spouse is left in a position which satisfies his or her reasonable needs;
(c) promoting each spouse’s self-sufficiency; and
(d) recognizing the part that meeting children’s needs may play.
[43] On Ms. Barnes’ part, she has no responsibility for any children. Ms. Barnes has been employed by the same employer for the last seven years and her income has increased over the last three years. She has rheumatoid arthritis. She and her husband lived in a home, while she now lives in an apartment which she cannot afford without renting a room to a boarder.
[44] I’ve estimated Ms. Barnes’ current income at approximately $32,000.00. According to her Statement of Expenses, her expenses are $3,277.55 (I’ve adjusted the figures she shows for operating her car to reflect the monthly, rather than annual costs). She has a monthly deficit of $610.88. The parties expressly agreed that Ms. Barnes would receive spousal maintenance indefinitely.
[45] On Mr. Barnes’ part, he must provide for his daughter. He has shown an ability to find employment without too much difficulty in the past few years. He described no mental or physical health disability. His income has been more variable during the past three years than his wife’s, but he has generally earned more than she has. His Statement of Expenses, when adjusted to include the amount of child maintenance he says he pays, the debt contribution he was ordered to make and the deductibility of his spousal maintenance payments, reveals expenses of $2,624.00. I calculate his income taxes at $378.00, his Canada Pension Plan premiums at $119.62 and his Employment Insurance premiums at $49.56. With a monthly income of $2,708.33, each month he has a deficit of $462.85. If his actual child maintenance obligation is $200.00, rather than $350.00, his monthly deficit is $312.85.
The decrease in Mr. Barnes’ income
[46] I’ve calculated at paragraph 34 that Mr. Barnes’ income is between sixty-five and seventy-five percent of his income at the time of the order.
The existence of the separation agreement and its terms
[47] The parties’ agreement states that spousal maintenance is to be paid “on the first day of each and every month and continuing thereafter indefinitely”. While parties cannot oust my jurisdiction to vary an order, according to the majority decision in L.M.P. v. L.S., 2011 SCC 64 at paragraph 41, the statement that maintenance was to be indefinite provides an indication of the parties’ view of their situation which I find to be relevant, in light of paragraph 39 of Justices Abella and Rothstein’s reasons in L.M.P. v. L.S., 2011 SCC 64.
[48] Ms. Barnes’ circumstances have not developed greatly since the order. The increase to her income is promising, but she is not self-sufficient: she cannot afford an apartment without housing a boarder. Mr. Barnes’ income has decreased and I’m told he’s failed to make spousal support payments for many months. His failure to make payments on the debts has left Ms. Barnes to pay them without Mr. Barnes’ assistance or his spousal maintenance payments. These events since the separation indicate that Ms. Barnes is still bearing the financial impact of the relationship.
[49] Considering the foregoing, I order that beginning on February 1, 2012 and continuing on the first day of each month thereafter, until the parties agree or a judge orders otherwise, Mr. Barnes shall pay monthly spousal maintenance to Ms. Barnes in the amount of $225.00. This amount reflects Mr. Barnes’ obligation to support his daughter and his reduced income. It also reflects the long-term obligation to support Ms. Barnes noted in the order. Mr. Barnes’ obligation to pay $125.00 toward the family debt is in no way affected by this decision: he must continue to make that payment as well.
Ongoing disclosure
[50] If Mr. Barnes loses his job or changes his employment, he must provide Ms. Barnes with written notice of this fact within two weeks of the event occurring. If he has changed his job, his notice shall also inform Ms. Barnes of his new income and the name and address of his employer. Annually, before June 1 of each year, Mr. Barnes must provide Ms. Barnes with a copy of his complete income tax return (including all the schedules, attachments and receipts that he files). Annually, within two weeks of receiving his Notice of Assessment (or a Notice of Re-assessment) from the Canada Revenue Agency, he must provide a copy of his Notice of Assessment (or a Notice of Re-assessment). It will be for Ms. Barnes to determine whether, based on the information she receives, she wishes to apply to vary the order arising from my decision.
_______________________________
Elizabeth Jollimore, J.S.C. (F.D.)
Halifax, Nova Scotia