DECISION DATE: 20030916
COURT FILE NO.1201-10647
IN THE SUPREME COURT OF NOVA SCOTIA
(Citation: Baker v. Baker 2003 NSSC 203)
BETWEEN:
ROBERT STANFORD BAKER
APPLICANT/PETITIONER
- and -
SANDRA ANN MACDONALD (BAKER)
RESPONDENT
DECISION ON APPLICATION TO VARY
HEARD BEFORE: The Honorable Justice Margaret J. Stewart at Bridgewater, N.S. on July 16, 17, 2003; and Lunenburg, N.S. Sept. 3, 4, & 11, 2003.
DECISION DATE: Sept. 16, 2003 and Oct. 3, 2003 (orally)
COUNSEL: Patrick Burke, counsel for the Applicant
Franceen Romney, counsel for the Respondent
Stewart, J. (orally):
[1] By way of an application to vary the Decree Nisi dated September 16, 1976, Robert Stanford Baker of Salem, Oregon seeks to address the issues of spousal support, the period for which child support is payable and the quantum of arrears as of court date. Sandra Ann MacDonald responds by seeking an Order continuing spousal support of $600.00 per month without any termination date and fixing arrears, inclusive of pre-judgment interest and interest on a judgment and enforcement of same inclusive of incarceration pursuant to the Maintenance Enforcement Act 1994-95, c.6, as amended.
[2] The parties married on June 1, 1966 and separated some nine and a half years later on January l, 1976 when their four children, Kathleen Ann, Valerie Dawn, Darryl Robert, and Sandra Bethaire were 13, 9, 8 and 6 years of age respectively and Mrs. MacDonald was a month away from her 30th birthday. The Decree Absolute was granted January 4, 1977, some 26 years ago and the Decree Nisi dated September 16, 1976 ordered Robert Baker, who was earning approximately $24,000.00 as a fisher, to pay $600.00 per month combined child and spousal support. Ms. MacDonald had no income. In 1978 Mr. Baker unilaterally decreased the support payment to $200.00 a month and then ceased payment altogether shortly thereafter. Judgment was entered against him fixing arrears at $43,000.00 as of February 28, 1985 plus interest per the Interest on Judgments Act; R.S.N.S. 1985, c. 233. It was recorded in the Registry of Deeds in Bridgewater, N.S. on March 6, 1985. This amount is fixed and not subject to further forgiving by this Court (Smith v. Smith 2002 N.S.J. No. 294 C.A.). The children, now adults, are in their thirties and one in her forties. Ms. MacDonald is 57 and Mr. Baker will be 59 years of age in November. Ms. MacDonald has never remarried or been involved in a sustained relationship. Mr. Baker was divorced a few months ago from his second spouse of 20 years. He was a father to her two grown children.
[3] During his testimony Robert Baker made the following admissions which are not inclusive:
1. Since the granting of the Decree Nisi, to date, he has had the ability to pay the $600.00 per month support.
2. He realizes his obligation and should have looked after his wife and children.
3. He was aware of the court proceedings in Nova Scotia concerning his failure to pay in 1979 and in British Columbia in 1982.
4. He was aware Ms. MacDonald was asking questions about where he was and he was upset with her trying to contact him.
5. He took no steps to try to correct circumstances.
6. His mother knew where he was living in British Columbia and in Oregon and visited a couple of times in British Columbia and five or six times in Oregon.
7. That for the last 24 years he has had no contact with his children.
8. One of the reasons he did not come to his father’s funeral in 1989 was the issue of child and spousal support.
9. He would not be in court today asking for a variation order if Ms. MacDonald had not pursued arrears through the Oregon State Enforcement Program.
10. Other than the recent monies collected through Oregon enforcement, he has made no effort to pay support since 1978.
11. He was aware in February of 2003 that the Decree Nisi was registered in Oregon for collection of support, having requested a hearing on January 23, 2003 and spoke with the Oregon District Attorney and appeared in court.
12. On March 15, 2003, four months before his scheduled court appearance in Nova Scotia, he and his wife of 20 years signed a Stipulated Petition for Dissolution of Marriage setting out a consent agreement and one of the motivating factors for doing so was to protect the family assets from Oregon Maintenance Enforcement.
[4] If there is any issue that Mr. Baker’s response of, “Possibly yes”, to the above or, “I’d not put it that way,” when asked if it was a divorce of convenience negates or nullifies any other direct admissions of same, I find that the divorce is one of any number of steps intentionally, deliberately, calculatedly taken to judgment proof himself and in so doing, he is knowledgeable as to the value of the assets retained by his wife despite his disclaimer to the contrary, on a number of occasions. He organized his affairs in Oregon so as to be judgment proof. For the most part, he continues to live in the same house as his ex-wife and through her necessary documents for these Court proceedings, were forwarded to counsel, during what became a four day trial. I find to achieve his judgment proof goal he took the following steps and then some:
1. Two weeks prior to his July 16, 2003 court appearance, he sold his 30 foot 1998 Winnabego registered in his name upon which he was making monthly payments of $340.00. To devoid himself of a loan, he sold an asset with some $10,000.00 equity given its $39,900.00 purchase price, eight months earlier at a cost to himself of $2,500.00.
2. On March 15, 2003 after speaking to the Oregon Maintenance Enforcement, he consented to a divorce agreement whereby his wife of 20 years, with whom he continues to reside, maintained all monies in her retirement account, in her bank account, all interest in the mortgage free vacant lot purchased for $8,000.00 U.S. and now assessed for $74,000.00 U.S., all furniture, although Mr. Baker is paying the storage fee for same and contrary to the agreement, interprets his interest as a half, all interest in the Geranium Avenue, Salem, Oregon property, subject to a mortgage and personal loan purchased in October of 2002 and referenced the Petition as both parties being owners, all interest in the parties' campsite time share and the 1998 Chev Van. Even assuming no equity exists in the time share and the Geranium Avenue, Salem property, which I find difficult, given their history of selling and purchasing properties, Mrs. Baker, under the agreement assumed a debt load of $26,570.00 while Mr. Baker assumed full responsibility of a potential $200,000.00 liability, inclusive of full support debt to date. He retained his 1997 Ford pickup truck with equity of approximately $8,000.00 and the company trailer which will be paid off within a year by paying $1,400.00 on the lease to own and is valued at $14,000.00 and the company 1994 Kenwood truck. He also retained a nominal personal bank account and company account.
3. His mother who has never revealed the whereabouts of her only son to Ms. MacDonald has transferred her real property into joint tenancy with trusted third parties.
[5] I do not accept that Mr. Baker honestly believes matters had been addressed by the Supreme Court in British Columbia in the 1980's. A warrant existed there as it did here in Nova Scotia. He acknowledges his responsibility to pay existed and that he had the means to pay and can continue to pay $600.00 Cdn. or approximately $495.00 U.S. He acknowledges an obligation to his former spouse, given her role as a caregiver in the family and subsequent limitations placed on her employment in having to raise four young children as a single mother. His actions now are repetitive and reflective of how he has consistently approached the issue of support and arrears over the years-steadfast and blatant disregard of a court order by avoidance of any payment and of any means to attach same. He is evasive and not truthful with the court concerning his assets and his knowledge of his ex-wife’s present assets. Only when pressed and with explicit questions, did he provide information. His offer to enter into monthly payments with the authorities in Oregon for $600.00 Cdn., reflective of the existing Oregon Enforcement Order and acclamations of, “I’ll do whatever it takes,” rings hollow and would not be viewed with such skepticism and cynicism had he offered a lump sum payment from his assets and not presented a sham divorce agreement while persisting at the same time that, “I do not know what I can do.” He has the ability to rearrange his convenient divorce from his ex-wife and to seek security from the very people who wish to protect his assets. His relationship with his wife is such that matters can be undone or financed. Only during the eleventh hour did a promise of commitment come forth from Mrs. Baker through Mr. Baker's counsel. If he is truly sincere in his intentions, he would not have taken the blatant steps to rearrange his finances weeks before appearing before this court. The offer for monthly payments is coached in terms of potential retirement in a few years and questioning his lengthy career in trucking continuing to be viable. He will be the recipient of $800.00 per month pension. He continues to shirk his responsibilities to place his Nova Scotia obligations first as he has for the last 24 years. Mr. Baker is not credible.
[6] As per Young v. Young (1976), 17 N.S.R. (2nd) 375, arrears must be addressed before the variation application is concluded. The responsibility rests on Mr. Baker to show cause why the Order should not be enforced. The power to eliminate or reduce arrears stems from the power in s. 17(1) of the Divorce Act, R.S. C. 1985, c. 3 to make an order "rescinding.... retro-actively". Factors which existed in the past and which would have been relevant to a successful application to vary support had a timely application been made, can be considered in determining whether to cancel or reduce arrears. Therefore, if Mr. Baker can demonstrate that if he or she had applied at an earlier date and he or she would have been successful in reducing support prospectively, that may be used as a justification for cancelling arrears retroactively. (Keller v. Wallbank (1993) 142 A.R. 214 (Q.B.)).
[7] In quantifying the arrears and determining whether any portion of the arrears should be reduced, the fact that the children were no longer children of the marriage at various periods, i.e., 1982, 1988, 1989, and 1991 is argued. It is a consideration that cannot be interpreted in isolation. Less than one-third of Mr. Baker’s $24,000.00 per year salary was granted to his incomeless wife, with a grade ten education and four children under the global award of $600.00 per month in 1976. Accepting it to be an appropriate Order, at best it was an effort to address Robert Baker’s ability to pay rather than reasonable support addressing their true needs. Left to care for four children, three of whom were under ten years of age, there was a hand to mouth existence for years and an additional $600.00 per month would only have contributed to essentials and was not intended to fully address spousal support. Priority was given to the children. Their life was an exercise in frugality and restraint requiring welfare, bartering, reliance on friends and family, re-used clothing, handouts, repetitious food sources, lost opportunity to interaction with other children in sports and for years their home was an unfinished basement. Without belaboring the point, Ms. MacDonald had no taxable income in 1985 and 1986. In 1987 she commenced selling insurance from her home and earned $6,949.00. In 1988 she earned $10,110.00. In 1989 she earned $16,347.00. In 1990 she earned $18,097.00. In 1991 she earned $12,012.00. All the children contributed by holding down jobs like babysitting, painting, being grocery boys, retail clerks, etc. Mr. Baker's income increased.
[8] Maintenance does not necessarily have to be reduced because one or more of the children have left the home and become self sufficient (Ryan v. Ryan (1992), 114 N.S.R. (2d) 255). Furthermore, as argued by counsel, the evidence reveals with respect to at least one child, the timing of her assumption of her own support was dictated in a large measure by their father's default, i.e. university attendance was foreclosed.
[9] Furthermore, the lack of disclosure by Mr. Baker of his income between 1980 and 1994 both then and now, other than admitting that he had ability to pay, leaves a void in determining what would have been the correct support assessment, during that period which is inclusive of the children finishing their education and obtaining employment had Ms. MacDonald been able to locate him and apply for variation as well as enforcement. This opportunity was denied and the Court is not prepared to effect quantum in a vacuum where the onus is on Mr. Baker. At one point he admitted that it was possible not all income (got put in the company books). To obtain variance or reduction or cancellation of arrears, an applicant must make full disclosure of his or her means and satisfy the Court that the change is such as to warrant the exercise of the Court's jurisdiction to grant relief, (Reid v. Reid (1992) 68 B.C.L.R. (2d) 258 (C.A.)). Mr. Baker has failed to do this.
[10] The Court is also asked to consider Ms. MacDonald's entitlement to support and forgiveness of spousal arrears or some portion from 1991 forward by way of retroactive variation (s. 17.1 of the Divorce Act). In so considering, the circumstances are such that his ability to have paid the support and to pay towards some combination of arrears and spousal support are not an issue; but, Mr. Baker's refusal to pay and therefore, his intentional avoidance and refusal to address and deal with same until forced to do so is in the forefront. Mr. Baker's failure to make any voluntary effort at compliance, indeed, his blatant efforts over the proceeding months and weeks to ensure he was judgement proof before approaching the Court to ask for relief from paying spousal support is a factor that melitates against even partial recission of arrears. Wilful non-compliance with the term of a support order should not be condoned or awarded by the Court. He consciously chose not to rely on this Court to do the very thing he now asks it to do today. Only Ms. MacDonald's perseverance has brought Mr. Baker before the Court seeking relief. Oregon's Enforcement Program is now enforcing the order. He should not now be rewarded for having unreasonably delayed a determination of the matter. Had the converse been true and there was unreasonable and unexplained delay on Ms. MacDonald's part in seeking to enforce payment of her spousal obligation it would have been open to Mr. Baker to raise the issue of hoarding, being a principle which holds it to be unfair to enforce an Order for arrears of maintenance for extended time where, because of the lack of diligence in asserting one's right, a recipient such as Ms. MacDonald's may have induced in the payor's mind the notion that she was not interested in enforcing her right. To discharge the obligation at a show cause hearing, Mr. Baker, having testified to the unavailability of assets to pay the order other than by commencing monthly payments of $600.00 per month, as well as raising the issue of Ms. MacDonald's entitlement and/or amount subsequent to 1991 must prove on the balance that the reason for the non-payment was unanticipated, unexplained, not done to frustrate the Order and the non-payment was reasonable under the circumstances, that he took steps to notify the recipient as soon as possible and took the proper steps to obtain court authority for non-payment. (Arsenault v. Arsenault, [1995] N.S.J. No. 612 (Fam. Ct.)).
[11] Here, there has been persistent failure to pay due to wilful non-compliance and persistent efforts to locate and enforce. Mr. Baker had no intentions of dealing with this matter until Oregon Enforcement Programs forced his hand. He did not keep the Court or Ms. MacDonald appraised of his address or financial circumstances. He dissipated assets. Ms. MacDonald was never given the opportunity to address an issue that has effected her and her children's entire lives. Mr. Baker's non-payment, inclusive of judgment in February 1985, to date of his application is not reasonable under the circumstances. I find he has not shown cause why the entire arrears should not be enforced. He had the ability and the means. He chose wilful non-compliance with the terms of the support order as it relates to both his wife and children.
[12] Had Mr. Baker made an application to vary support in 1991, he would have not likely been heard based on his evidence before me as such would not have met the requirements as set out by our Court of Appeal in Young v. Young (1976), 17 N.S.R. (2d) 375. Arrears in the amount of $43,000.00 plus interest and approximately $49,000.00 with possible pre-judgment interest covering 1978 to 1991 would have to have been paid before his application for reduction of the monthly payment was entertained, as he would not have been able to give some explanation as to why he had not paid the arrears, given his present admission to being able to have paid support. As quoted by Justice Nathanson in Jensen v. Jensen, [1991] N.S.J. No. 387 aff'd in part [1992] N.S. J. 21 (S.C.A.D.), the fact that the applicant husband, in Young v. Young, supra had an ability to pay and gave an explanation to the effect that the wife was not in need and could support herself, indicates that the explanation that is required of an applicant must relate to his inability to pay and not to the financial or other circumstances of a person other than the applicant. At the very least, Mr. Baker should have paid that amount before attempting to obtain retroactive relief from this Court.
[13] I find no inequity or injustice to Mr. Baker, if he is ordered to account for the entire arrears both pre 1991 and post. He had the ability to pay the $600.00 Cdn. per month from the time of the Decree Nisi. He certainly has the ability to pay the $600.00 Cdn . per month payment that he has offered. One only has to look at his monthly debt payment prior to this Court's proceeding to appreciate his cash flow. For two and one-half years he paid $1,400-$1,600 on the mortgage and taxes for the Redstone Avenue property, while taking on a $340.00 per month Winnebego loan payment, while paying $200.00 on the campsite time share and $283.00 or so dollars truck payments and supporting his heavy smoking habit. The yearly trucking income reported by Mr. Baker is suspect given his hours and his admission that it is possible that not all income "got put on the company books". There was no detrimental reliance by Mr. Baker on the fact that he was not called upon to account for the arrears. There was no hoarding by Ms. MacDonald. He disclaimed the children. He did not come to his own father's funeral in order to avoid the collection process that he so successfully sailed away from in 1979. He hung up on his wife and changed telephone numbers. Family members knew to keep his address and location to themselves. He took calculated steps to denude himself of assets even to the point of divorcing so that not only arrears from 1991 onward were not collectable but those accumulated prior to that for the benefit of the children could not be addressed. He knew that they were accumulating and chose not to seek relief until it affected his finances. Disclosure of his assets has been painful and incomplete. His interest in assets has been given up on paper. Nothing Mr. Baker says makes me believe that he does not have access to assets through third persons sufficient to address a significant portion of the arrears over and above a monthly payment and to make such arrangements with security.
[14] I make these findings. However, Mr. Baker's own evidence would have me conclude that the only issues are one, how the entire spousal arrears are to addressed and two, the quantum of spousal support, given the parties' present circumstances, and not one of entitlement, either progressively or retroactively. Mr. Baker's response to Ms. MacDonald's counsel's question, "Do you feel you should be paying support for Sandra?" was, "Yes I do." His response to, "Do you recognize continuing obligation because she had to raise the children?" was, "Yes," and finally, his response to, "Did it put her in a disadvantaged position because she made certain sacrifices to raise the family?" was, "Yes, I suppose."
[15] The existing judgment of February 1985 for $43,000.00 is acknowledged and the appropriate interest under the Interest on Judgments Act applies. The arrears from March of 1985 to March of 2003 are fixed and payable at $130,200.00 with prejudgment interest at five percent to the date of this decision. The enforcement of arrears is ordered as follows. Judgment shall be entered against Mr. Baker and shall be a charge against his estate, assigns, and heirs with such charge to take priority over other debts against the estate and continue until the death of Ms. MacDonald or payment in full which ever comes first. (Connelly v. Connelly (1974), 47 D.L.R. (3d) 535 N.S.C.A.; Linton v. Linton (1990), 30 R.F.L. (3d) 1 (Ont. C.A.) at 39). Minimal monthly payment of $500.00 U.S. on or before the first of each month shall be paid on the arrears through the Maintenance Enforcement Program in Oregon, U.S.A. until the arrears are satisfied. Mr. Baker shall give security for the arrears payment which includes a charge on his interest in all personal and real property that he owns or to which he is beneficially entitled. Upon default of any such payment, the sum shall become due and payable and the security sold or drawn upon to secure payment and the proceeds up to the value of the outstanding arrears retained as security for each subsequent payment.
[16] In making an order for incarceration, I am mindful we do not send people to prison for non-payment of debts. We can however, punish for wilful disobedience of a Court Order when it is within their capacity to comply (Stefa v. Stefa (1985), 44 R.F.L. (2nd) 328 Ma. C.A.). I find this to be so in Mr. Baker's case; i.e. the wilful disobedience of the Order. He has the capacity to comply by undoing what he has done and obtaining his interest back. Mr. Baker shall be imprisoned continuously for a period of six months, unless arrears in the amount of $70,000.00 Cdn. are sooner paid. Mr. Baker shall immediately notify both Maintenance Enforcement and Ms. MacDonald of any change of address or employment. I would just indicate the amount of $70,000.00 should be made payable to the Maintenance Enforcement Program in Oregon.
[17] In attempting to determine the issue of spousal support the Supreme Court of Canada's analysis in Moge v. Moge [1992] 3 S.C.R. 813 and Bracklow v. Bracklow [1999] S.C.J. No. 14 are at the forefront. A number of principles or basics exist such as:
1. There are now three basis for spousal support; compensatory; non-compensatory, i.e. need alone; and contractual.
2. There is no one philosophy of support; i.e. mutual obligation vs. clean break. They co-exist.
3. Issues of entitlement and quantum/duration are weighed by consideration of all of the factors and objectives in s. 15.2(4) and (6) and specifically s. 17(4.1) which is the application to vary section of the Divorce Act.
"The method to follow in determining a support dispute starts with the objectives and all must be considered. No one objective is paramount (see Moge v. Moge, [1992] 3 S.C.R. 813 and Bracklow v. Bracklow, [1999] 1 S.C.R. 420 at page 440). The factors are looked at against the background of the objectives. (Bracklow, p. 440, par. 36)." Higgins v. Higgins, [2000] N.S.J. No. 48 N.S.C.A.
4. It is a matter of applying the relative factors in striking the balance that best achieves justice in the particular case before the Court. (Bracklow, supra par. 32).
5. The duty of a Court called upon to exercise discretion under s. 15.2(1) and s. 17(1) of the Divorce Act is to have regard to all of the factors in s. 15.2(4) and s. 17(4.1) in order to achieve the objective set out in s. 15.2(6).
6. Quantum of support does not always equal the amount of the need.
[18] At issue is the quantum and duration of Ms. MacDonald's support with Mr. Baker seeking termination. He stresses it is now 26 years post-divorce. The children are grown and it is 12 years post the youngest leaving home. The fact of marriage alone does not entitle one of the spouses a pension for life.
[19] As a result of the non-support by Mr. Baker, Ms. MacDonald lost income that she relied upon to improve her earning capacity to better care for their children and to strive and obtain self-sufficiency. Early on she chose a career path which allowed her to work evenings in a warehouse and "look after telephones" while her oldest babysat, in order to be home with her children when they left for school and to work on building their home during the days with the help of friends and instructions from library books. For a time, she relied on social assistance. In their teenage years, she obtained her G. E. D. Certificate and later in the mid- 1980's when 40, she built up a clientele and sold insurance out of her home having taken an insurance course. In the early 1990's she continued to sell insurance. Prior to working for National Sea, she took a six week computer course in 1994. In the spring of 1999, she commenced working for her present employer H & R Block doing income tax preparation. During a three and one half month period in 2003, she worked some 700 hours plus earning $7,726.00 at $10.00 an hour and had sufficient hours to collect employment income until the end of October at $235.00 per week gross. Her monthly budget is approximately $1,068.00. Her income for 1992 to 2002 was $18,332.00; $18,465.00; $14,241.00; $10,169.00; $11,308.00; $19,307.00; $10,485.00; $7,021.00; $5,581.00; $12,868.00; and $15,592.00.
[20] Her children assist by providing and splitting wood, plowing the driveway, doing repair work, as well as assisting with monthly payments on her 1999 Ford Ranger, and providing monies in order that she can buy her grandchildren treats. Her proposed monthly budget deficiency come November 2003 when her truck loan is paid off will be $579.00 rather than her present $172.00 per month functioning budget deficit. The proposed budget provides for nominal property repairs/maintenance, no provision for savings and/or medical/dental plans, nominal entertainment besides cable and interest only on RRSP loans.
[21] At age 57 she cites health issues of arthritis in her lower back, osteo-arthritis in her knees, thyroid flare-up from an operation in August of 1989, high cholesterol and recently, depression. She has no medical plan. She waited four months to purchase her prescription to address the latter issue. Similarly, she has no dental plan and requires dental work.
[22] Using her $5,500.00 share from the sale proceeds of their new five bedroom home, in 1976 Ms. MacDonald purchased land in Rhodes Corner where she built her present home over a number of years. For a period of time they lived in a mobile home on the land and eventually, for five years, lived in the covered basement of the home until it was framed and closed in. In 1979 she sold a portion of the land and received $5,000.00 to put towards making the basement habitable. The home is assessed for $73,300.00 and as of November, 2002 loan free. She estimates it needs $25,000.00 to finish it and do repairs inclusive of the roof, air tight stove and some $15,000.00 to finish the basement they occupied. She has had separate flooding and roof problems. With monies put into it, her home has the ability to generate rental/boarder income. At present her laundry facilities and office are downstairs. She is hopeful a small perennial plant business she started in 1998 could become more profitable than the $30.00 she earned this year when she is able to afford a greenhouse.
[23] The 1999 Ford Ranger truck she purchased for $32,000.00 at zero percent interest, has an estimated value of approximately $12,000.00 and is due to be paid off in November of 2003. This was possible with her daughter's assistance of $300.00 per month towards payments since the fall of 1999. This was done with the understanding that the monies will be paid back through Ms. MacDonald's estate. Savings in the amount of $9,700.00 RRSP's are financed through a loan of $14,700.00 which requires only monthly interest payments. The difference in the amounts being the amount of RRSP's cashed in due to need. She has no savings.
[24] All the relevant statutory factors must be considered. The practicable and reasonable time frame for self-sufficiency in this case must be assessed in the context of a 10 year marriage where three of the four children were born within the first four years and of a spouse who did not work outside the home for 10 years, who has had the on-going parental care of the four children with no financial or emotional assistance for the entire period of the children's post divorce childhood, except for 18 months and who has had no spousal support till April of 2003. Not only was Ms. MacDonald's ability to support herself after divorce significantly effected by her role as primary care-giver to the children both during the marriage and after the marriage because of the sacrifices of losing such things as workplace security and seniority and losing pension and insurance plan benefits as well as suffering numerous financial consequences flowing from custodial parenting in and of itself (Brockie v. Brockie, [1987] M.J. No. 56 and Moge, supra, at par. 81), she experienced it in a vacuum of child and spousal support almost from day one. The economic consequences of child rearing for Ms. MacDonald who was left to shoulder both economic and parenting burdens was increased ten fold by Mr. Baker's blatant breach of the support order for some 20 years plus. She continued to compromise her economic self-sufficiency for the sake of the children. She was economically disadvantaged by the roles adopted in the marriage with the resulting dependency. A mother of a four year old child when she came to the marriage at age 20, she stayed home and took care of the home and their four children while Mr. Baker worked. The marriage breakdown imposed a great disadvantage on her; her income was reduced; she had full custodial and financial responsibility for the children and herself. As noted by Palmeter, A.C.J. in Gillis v. Gillis (1994), 3 R.F.L. (4th) 128 at par. 9 (N.S.S.C.);
".....The fact that the two youngest children have left the Respondent's home does not necessarily mean the maintenance has to be reduced on any pro-rata basis or even reduced at all."
[25] When the youngest child was 18 in 1988, Ms. MacDonald was 42 years old. She acquired skills. From 1987 through to 1993 she was involved in learning and building up a clientele in the insurance business. By 1993 she was earning $18,456.00. Health issues effected her work week for a period of time. Other than National Sea in 1994, I am vague on her work history leading up to her present four year employment with H & R Block which she commenced in 1999. In 1997 she was able to earn $19,307.00. She is a resourceful, diligent and intelligent woman and has found a comfort level and capacity in the income tax area, which unfortunately, is only for a set intense period of time each year. It can provide sufficient protracted hours to allow for employment income benefits. Although I do not question Ms. MacDonald's evidence concerning attempts to find employment, concrete specifics reflective of her organized paper trail re the enforcement issue over the years would have been more informative. I am unclear why Ms. MacDonald has not tried to supplement her income by returning to employment in the insurance business. She was successful in the past at building up a clientele working from her home and as her present hours of work reflect, has stamina that could be spread out. She expresses an interest in working with RRSP's. Health issues may exist but they are not disabling. Compliance by Mr. Baker on arrears or if need be a small loan against the home with family members as guarantors when the truck is paid off could result in a cash flow that will allow for the necessary home improvements, at least to the basement and thereby provide a potential income source through rental accommodations. A realistic assessment of potential income from her perennial plant business may cause her to conclude this is an area where monies spent will result in a viable income source. Monies spent on an air tight stove will provide her with less worry and more mobility.
[26] At this point, through her frugality and assistance of her children, in tangible ways the home is loan free. She is able to use what would be rent monies for upkeep and not use up her potential retirement source by renting accommodations now. The home is a potential income source through an outlay of what she estimates to be $15,000.00 for the basement and the price of a greenhouse over and above that or on its own. Given all the circumstances, it is not a question of Ms. MacDonald's inaction (Moge, supra at par. 114). These are concrete areas of action that may prove viable along with continuing efforts to canvass the workplace. Mr. Baker's compliance with payments on arrears is instrumental in the viability of such steps. It may be the economic consequences to Ms. MacDonald at this stage are irreversible and one's expectation of Ms. MacDonald's prospect of self-sufficiency so as to not require some amount of support not realistic, given her age, length of marital relationship, dependency during marriage, role in the marriage, time out of the work force and years of failure to pay support for the children and spouse. I am satisfied the facts to not support a time limited order (McIssac v. McIssac, [1996] N.S.J. No. 185).
[27] Since 1999, Mr. Baker's now ex-wife of five months has prepared and continues to prepare Mr. Baker's returns. He professes little knowledge of their content. She was not present to be cross examined on either the company's returns or its' bank accounts. The trucking company's 2001 return shows $79,488.00 gross earnings and the 2002 profit and loss statement shows $70,923.93 gross earnings with $7,000.00 per year compensation to Mr. Baker, along with travel and entertainment reimbursement making it $12,760.00 per year. Cross examination on Mr. Baker's hours of work and deposits in the company's bank account, his admissions to it being possible that not all earnings are shown as well as his and his wife's ability to purchase homes requiring improvements, cars, boat, recreational vehicles over the years and their most recent monthly payments pre-divorce and divesting of assets causes me to infer the company's gross profits are more than proffered and Mr. Baker's compensation higher by thousands. The ex Mrs. Baker who is employed by Oregon's Department of Transportation earns approximately $26,500.00 per year. Joint returns, pre 1999 show an average joint income of $72,000.00 U.S. or roughly $93,600.00 Cdn. W-2 Ways and Tax Statements were not always included in the documents filed but the ex Mrs. Baker's income does not appear to have varied greatly from the $22,000.00-$26,000.00 range. Post 1999 joint returns prepared by the former Mrs. Baker reflect an average joint income of $47,000.00 U.S. or roughly $61,000.00 Cdn.
[28] I am satisfied there has been material change in circumstances in that the Order should reflect that the children are grown and only spousal support remains payable. I have already addressed the balancing of objectives and factors in arriving at this determination. I am satisfied Mr. Baker has the ability to pay $500.00 per month spousal support which I gross up by 24 percent to $620.00 to account for income tax. In so doing I infer his income to be at least $40,000.00 U.S. Payment shall commence May 2003 being the date of the application to vary and shall be payable through the Oregon Enforcement Program.
[29] The final matter is costs. Counsel for Ms. MacDonald seeks solicitor/client costs. In seeking to rescind arrears the onus was on Mr. Baker. Had he provided the necessary documentation at the outset and not deliberately flouted the process of the court by being evasive and not forthcoming with his answers the hearing would not have consumed four days. Exercising my discretion I award costs of $6,500.00 not on a solicitor/client basis.
J.