Cowan v. Metcalfe-Cowan

Cowan v. Metcalfe-Cowan Court Supreme Court Date 2020-12-01 Citation 2020 NSSC 344 Docket SBWD 085759 Judge/Registrar/Adjudicator Gabriel, D. Timothy (Honourable Justice) (SC) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: Cowan v. Metcalfe-Cowan, 2020 NSSC 344 Date: 20201201 Docket: SBWD 085759 Registry: Bridgewater Between: David Ronald James Cowan Applicant v. Felicia Jannel Helen Metcalfe-Cowan Respondent Judge: The Honourable Justice D. Timothy Gabriel Heard: September 17, 2020, in Bridgewater, Nova Scotia Last Conference with Counsel: October 1, 2020 Counsel: Shawn P. D’Arcy, for the Applicant Nicholaus S.A. Fitch, for the Respondent By the Court: Introduction [1] On April 15, 2019, the Applicant, David Ronald James Cowan (formerly the Petitioner), filed a "Notice of Application Chambers (Variation – Family Proceeding)". That Notice included the following description of what was sought: 1. The Applicant seeks to vary the Corollary Relief Order pursuant to section 17 of the Divorce Act ("the Act") on the grounds that there has been a material change in the circumstances since the date of the [order], specifically that the Respondent is or ought to be self-sufficient. 2. The facts supporting a material change in circumstances are that the [order] permitted a review of spousal support after July 1, 2018 and that the Respondent was to attempt to become self-sufficient within a reasonable period of time. [2] The affidavit filed by Mr. Cowan on that date clarifies the relief requested: 11. That I respectfully ask that [sic] the Honourable Court to terminate David Cowan’s spousal support obligation to Felicia Metcalf – Cowan. 12. That that I respectfully ask the Honourable Court in the alternative to placed [sic] a termination date on David Cowan’s spousal support commitment to Felicia Metcalfe-Cowan. [3] At the conclusion of the hearing, which was held on September 17, 2020, I was asked by the parties to reserve my decision, so that they could pursue further discussions toward resolution. On October 1, 2020, in a conference call with counsel, I was advised that discussions had broken down, and it was requested that I render a decision in this matter. [4] I will proceed to do so. Background [5] The parties were married on August 1, 1998, separated on November 10, 2011, and divorced by an order dated December 21, 2015. They have one child, a daughter born February [**], 2001. The Corollary Relief Judgment (“CRJ”) recites that "the Respondent, Ms. Metcalfe has a history of gainful employment but is presently unemployed". [6] The order goes on to provide that their daughter would be in the joint custody of the parties, and that Mr. Cowan would pay child support (not in issue in this proceeding) which includes some agreed upon arrears. Primary care and control was provided to the Respondent. The Applicant's annual income at the time of the CRJ was $98,500.00. [7] In addition to child support payments of $825.00 per month commencing (May 1, 2015) the Applicant was required to pay periodic spousal support to the Respondent in the amount of $2,300.00 per month, commencing July 1, 2014 "and continuing on the first day of each month thereafter until varied by Court order". Provision was also made for retroactive spousal support: The Petitioner shall pay retroactive spousal support commencing December 1, 2011 until June 30, 2015, which has been calculated to total $98,900, less the Petitioner’s marginal tax rate of 41.87% for a total amount of spousal support of $57,486.68. The Petitioner has paid $89,794.63 toward the payment of the Respondent’s share of matrimonial debts and household expenses since December 1, 2011, which payment reduces the retroactive spousal support to zero ($0) dollars. [8] The CRJ went on to provide: 12. Spousal support shall be reviewed, upon application by either party, on or after July 1, 2018. Spousal support may also be reviewed by either party prior to this date on the basis of a material change in circumstances. [9] On February 2, 2016, the Respondent applied to vary the child support provisions of the CRJ pursuant to s. 17 of the Act. Specifically, she sought an order requiring Mr. Cowan to pay the table amount of support commensurate with his (then) income, and also seeking contribution to special or extraordinary expenses as set out in s. 7 of the Federal Child Support Guidelines. At the time of this Variation Order (which was dated July 5, 2016), Mr. Cowan’s income was found to be $113,100.00 "… for the purpose of determining the table amount of child support". For the purpose of his contribution to special or extraordinary expenses, his annual income was found to be $86,100.00 (in other words, his annual income less spousal support payments required by the CRJ). [10] Ms. Metcalfe's income at that time was found to be $27,000 annually. It consisted entirely of the spousal support payments made by Mr. Cowan. [11] The Variation Order required him to pay $940.00 per month pursuant to s.3 of the Guidelines, and an additional $486.08 per month as his contribution toward the pre-tax cost of his daughter’s special or extraordinary expenses. [12] Mr. Cowan's spousal support obligation was unaffected. The present proceeding [13] In his Statement of Income, Mr. Cowan declares his present income to be $113,568.24 per annum. His partner’s income is in the amount of $26,331.96 per annum. This was unchallenged by Ms. Metcalfe. [14] In his affidavit filed on April 15, 2019, the Applicant says: 6. That Felicia and I were married on August 1, 1998 and separated on the 10th of November 2011. There was no period of domicile before our marriage. Our relationship was for a period of 13 years; … 8. That at the time of the Corollary Relief Order was issued Felicia had just graduated from post secondary school, Maritime Business College, where she graduated from Anesthesia Technology. Felicia, before then, was a registered practical nurse, however she had let her credentials lapse. Felicia, at the time of the issuance of the Corollary Relief Order was stating she had not at that time been successful in obtaining employment as she had just finished school; 9. That as part of the Corollary Relief Order spousal support could be reviewed on or after July 1, 2018. Further the order at clause 8 provided that Felicia “must attempt to become self-sufficient within a reasonable period of time”; 10. That I have supplied Felicia my income tax information each year as ordered in the Corollary Relief Order. Felicia however has not supplied to me her income information since 2016 and I have had no way of knowing her financial circumstances. [15] In her affidavit sworn on July 14, 2020, the Respondent says: 9. In March, 2005 our house sold. [our daughter] and I moved to Cape Breton with my parents. Mr. Cowan moved to Regina in January, 2005 for RCMP training which was unpaid. Mr. Cowan graduated in June, 2005. Mr. Cowan was posted to Nanaimo, British Columbia immediately. The family moved there. 10. ... We were living in a hotel for the first two months in Nanaimo. I continued to look for work but the province required me to be licensed. I was unable to become licensed because British Columbia required 4 upgrade courses. Mr. Cowan would not pay for the courses and I never returned to work. … 13. [After our return to Nova Scotia] I was no longer licensed so I could not work in Nova Scotia until I took a refresher course to become licensed which would take one year. Mr. Cowan encouraged that I remain unemployed and be a stay at home mother. 14. We separated on November 10, 2011. Mr. Cowan left the home and I requested the home be sold immediately. The house was not sold until our divorce concluded. I applied for and was accepted into the refresher course in Nova Scotia Community College Halifax campus. I was advised I could borrow against our RRSP’s for education purposes. Mr. Cowan refused to do so. I then looked into getting a Nova Scotia student loan but this course was not on the list of accepted courses. The course was cancelled in any event and not to be rescheduled for two years. I attach hereto the cancelation notice as Exhibit “A”. 15. I continued to look for work related to my field and came across a posting for anesthesia technician paid training if you were an employee of Capital Health. I applied despite not being an employee and called the head of the department to see if I could job shadow. I applied and was accepted into the Maritime Business College for this course but I would have to pay. The cost was $20,000 and required that I live in Halifax for 6 months. My mother took a loan out in her name to pay travel, accommodations and tuition. I was able to eventually secure a student loan. 16. I completed the course in 2014 but I was unable to secure employment. I returned to Bridgewater to live fulltime. Mr. Cowan continued to refuse to sell the home bur did file for divorce. … 19. In 2016 I took a medial transcriptionist course. The course was online and cost $4,000 for two years. I received a further student loan to cover this cost. I was falling behind in the first year and sought out extra help from the instructors. My typing was not fast enough for the course. I looked for keyboarding classes to improve my speed but could only find a course in Truro. At this point I was falling way behind. I went to a walk-in clinic and received a medical note to the course would waive the fee for a three month extension. I was unable to catch up in those 3 months and deemed incomplete and did not graduate. I was now in collections with student loans and was unable to secure any further loans. I looked into the refresher course but the tuition was $10,000 and required not just classes but also labs and a 6 month practicum. I did not have $10,000. … 22. I have applied to numerous positions since receiving the application of Mr. Cowan. I have been unsuccessful securing employment. I attach hereto as Exhibit “B” a rejection letter from one of those positions at the IWK. This is the only position that even sent me a rejection. … 24. I am seeking that spousal support is continued indefinitely. Analysis (i) The applicable law [16] The factors and objectives that would have been considered by the Court in assessing and determining Mr. Cowan's spousal support obligation as set out in the CRJ dated December 21, 2015, are referenced in section 15.2 of the Act. They include: 15.2(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (a) the length of time the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse. … 15.2(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the 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 spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [17] This matter was framed as a Variation Application. Variation Applications are governed by s. 17 of the Act. A material change in circumstances is required at the outset to ground such an Application. [18] However, the contingency for which the Court provided in the CRJ, after July 1, 2018, was a "review". This is a distinct concept, despite the fact that both parties have (at times) used the term interchangeably with "variation" in their pleadings, oral and written submissions. [19] Since the pith and substance of this matter is a " review", I begin with section 15.2 (rather than s. 17, as pleaded): (3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just. [Emphasis added] [20] In Leskun v. Leskun, 2006 SCC 25, the Court explained the differences between these concepts: 36. Review orders under s. 15.2 have a useful but very limited role. … one [page 937] or both parties at the time of trial may not, as yet, have the economic wherewithal even to commence recovering from the disadvantages arising from the marriage and its breakdown. Common examples are the need to establish a new residence, start a program of education, train or upgrade skills, or obtain employment. In such circumstances, judges may be tempted to attach to s. 15.2 orders a condition pursuant to s. 15.2(3) of the Divorce Act, that entitles one or other or both of the parties to return to court for a reconsideration of a specified aspect of the original order. This will properly occur when the judge does not think it appropriate that at the subsequent hearing one or other of the parties need show that a change in the condition, means, needs or other circumstances of either former spouse has occurred, as required by s. 17(4.1) of the Divorce Act. 37. Review orders, where justified by genuine and material uncertainty at the time of the original trial, permit parties to bring a motion to alter support awards without having to demonstrate a material change in circumstances: Choquette v. Choquette (1998), 39 R.F.L. (4th) 384 (Ont. C.A.)... … 39. … a trial court should resist making temporary orders (or orders subject to "review") under s. 15.2. See also: Keller v. Black, [2000] O.J. No. 79 (QL) (S.C.J.). Insofar as possible, courts should resolve the controversies before them and make an order which is permanent subject only to change under s. 17 on proof of a change of circumstances. If the s. 15.2 court considers it essential (as here) to identify an issue for future review, the issue should be tightly delimited in the s. 15.2 order. This is because on a "review" nobody bears an onus to show changed circumstances. Failure to tightly circumscribe the issue will inevitably be seen by one or other of the parties as an invitation simply to reargue their case. That is what happened here. The more precise condition stated in the reasons of the trial judge was excessively broadened in the formal order. This resulted in a measure of avoidable confusion in the subsequent proceedings. [Emphasis added] [21] These principles have received elaboration on many occasions in the jurisprudence over time. For example, in Schmidt v. Schmidt, 1999 BCCA 701, the Court pointed out that a review was very appropriate to: 9. ... circumstances where there is some doubt as to whether spousal maintenance should be continued and, if so, and what amount. Rather than force the parties to go through a variation proceeding with its strict threshold test of change in circumstances, the court provides that maintenance shall be reviewed. ... 11. I should note that a review order is not to be confused with an order for limited time maintenance or an order for the payment of maintenance until the happening of a specific event. The following passage from Payne on Divorce (4th ed.; 1996) at p. 326 clarifies that distinction as follows: Where an order for periodic spousal support is declared subject to review after one year, the word "review" does not imply termination of the order. A change of circumstances need not be proved where the original order provided for a review after a fixed time. In such a case, any necessary modification is triggered by the direction of the court, not by a change of circumstances. An order for spousal support that is declared "reviewable" after a designated period of time is not an order "for support for a definite period or until the happening of a specified event" such as triggers the severe restrictions on variation that are imposed by section 17(1)) of the Divorce Act [or under the Family Relations Act]. A spousal support order that was declared subject to review may be continued where the obligee has not achieved self-sufficiency but is striving to do so and in other circumstances. [22] It is also important not to lose sight of the fact that I begin with the earlier findings made by the Court and embodied in the CRJ. I do not sit in Appeal of that order. I look at the matter based upon the parties’ circumstances as they exist currently and particularly in light of the reasons for the review as expressed (in this case) the CRJ. [23] Indeed, it is obvious that I do not decide theses issues in a vacuum. The CRJ was very clear as to why provision was being made for review after July 1, 2018. We need only return to the recitals in the order and (once again) note the reference to the finding embodied therein that "...the Respondent has a history of gainful employment but is presently unemployed" (p. 1) and "... the Respondent must attempt to become self-sufficient within a reasonable time" (p.2, para 8) to acquire the necessary insight. [24] As Legere-Sers, J. noted in MacKay v. MacLean, 2014 NSSC 127: 63. Review applications are governed by Section 15.2 of the Divorce Act. The cases of Cavanaugh v. Cavanaugh, [2008] N.B.J. No. 464, 2008 NBQB 387 and Arsenault v. Arsenault, 2002 CarswellNB 496 (NBCA) are helpful in assessing the burden of proof in review hearings. Neither party bears the threshold burden nor is it necessary to prove a material change in circumstance since the making of the last order. 64. Some considerations which bind the Court on a review hearing are identical to those which apply on an originating application. They are set out in sections 15.2 (4) and 6 (6) of the Divorce Act. 65 In Cavanaugh, Wooder, J. at paragraphs 29 and 30 noted as follows: 30. The Supreme Court of Canada has made it clear that the spousal support provisions of the Divorce Act are intended to address the economic consequences of marriage and its breakdown, as opposed to the social, emotional, or other consequences. See Moge v. Moge 1992 CarswellMan 143. That same court dispelled the notion that any one of the objectives was paramount when it held that all four of the objectives must be reflected in a support order. To these principles was added the declaration in Bracklow v. Bracklow 1999 CarswellBC 532 (S.C.C.) that need could form the basis for entitlement to support even where there was no compensatory or contractual aspect to an award. 66. Legislated factors include: (4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including: (a) the length of time the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse. (ii) Application to facts [25] As I consider the s. 15.2(4) factors, I note that the trial Judge clearly viewed the Respondent as possessed of a history of gainful employment. Indeed, she graduated from the LPN program in 1990, worked as a licensed practical nurse (“LPN”) for 15 years, and on several occasions during her viva voce evidence, she said that she had loved the job, and had been very successful at it. [26] Much of her evidence appeared to invite the Court to revisit the assessment in the CRJ, which was to the effect that she has a “history of gainful employment”. She discussed the sacrifices that she had made for Mr. Cowan's RCMP career (during the course of their marriage) including the extra-provincial moves that were necessitated by it. [27] Previously noted was the affidavit evidence with which Ms. Metcalfe adverted to the refresher course in which she had earlier enrolled because her credentials as an LPN had lapsed. She says the course was cancelled at Nova Scotia Community College in Halifax, and not rescheduled again for two years. [28] At the time of the divorce hearing in 2015, she had just completed an “anaesthesia technician course” which required her to pay approximately $20,000.00 in tuition. She obtained a student loan to cover the cost. She completed the course in 2014, but testified that she was unable to secure employment in that field. She then returned from Halifax to Bridgewater to live full time. [29] Since the divorce hearing in November 2015, her efforts to reintegrate into the workforce have been limited. For example, she says that (in 2016) she took a medical transcriptionist course at a cost of $4,000. It was supposed to be a two year course. She again received a student loan to cover the cost. She said she fell behind in the course because her keyboarding speed was not optimal. As a result she: "...went to a walk-in clinic and received a medical note so the course would waive the fee for a three-month extension. I was unable to catch up in those three months and deemed incomplete and did not graduate... I was now in collections with student loans and was unable to secure any further loans. I looked into the refresher course [LPN] but the tuition was $10,000.00 and required not just classes but also labs and a six-month practicum. I did not have $10,000.00" (Affidavit – July 14, 2020, para. 19) [30] The Respondent's evidence continues: 22. I have applied to numerous positions since receiving the application of Mr. Cowan. I have been unsuccessful securing employment. I attach hereto as Exhibit “B” a rejection letter from one of those positions at the IWK. This is the only position that even sent me a rejection. 23. Due to Covid-19 I heard that temporary licenses were being issued to people who had the skills but had let their licenses lapse for different reasons such as retirement. Unfortunately, the criteria required that there was no more than a 5 year gap. I looked into this option in every province. [31] The parties’ daughter is now a university student. From September 2019 until March 2020, when the University ended in-person classes due to the Coronavirus pandemic, she lived in residence out of province. She receives student loans and works part-time. Mr. Cowan continues to pay child support in accordance with the Variation Order of 2016 and has not applied to vary it. Ms. Metcalfe testified that she helped her daughter “...with groceries, school expenses and clothing when I could" during the time she spent at University. [32] Their daughter returned home to live with Ms. Metcalfe on March 26, 2020, continuing her classes online. She will remain with Ms. Metcalfe until in-person classes resume. Apparently, the earliest date upon which that could occur is January 21, 2021. Subsequent events have made that date, if anything, even more speculative. [33] On several occasions during the course of her testimony Ms. Metcalfe had to be reminded to focus on the questions that she was being asked, and the facts relevant to the review. She was especially intent on revisiting (at some length, and repeatedly) the course of the parties' marriage, and cried on several occasions as she described how much she had loved her work as an LPN, how good she was at it, and how, before her credentials lapsed, she got "every job I ever applied for". [34] At the end of her testimony, the following exchange (in response to a question from the Court) took place: THE COURT: You have indicated that, hopefully, you will nurse again. Right? MS. METCALFE: Yes. THE COURT: And you have indicated, “I loved it and I want to go back to it”. That is the case, is that correct? MS. METCALFE: Yes, I never wanted to leave it. THE COURT: What is your plan to achieve that goal? MS. METCALFE: Well, I had so many obstacles. THE COURT: I am asking if you have a plan right now to achieve that goal? MS. METCALFE: No, I am in financial dire straits. THE COURT: Alright, thank you. [35] The CRJ, among other things, required that the parties exchange their Income Tax Returns and related materials on a yearly basis. Mr. Cowan's testimony is that he had continued to do so, however, Ms. Metcalfe's efforts in this regard were nonexistent. It was not until he brought this application for review that Mr. Cowan became aware that the Respondent's income since the parties’ divorce (indeed, since their separation in 2011) has consisted entirely of his spousal support payments. [36] Upon cross-examination Ms. Metcalfe acknowledged that she had received some funding during the past year as a result of one or more government programs put in place to attempt to mitigate the financial impact of the Coronavirus "shutdown" and other measures. Of course, the child support paid in relation to their daughter would not constitute taxable income in her hands. [37] The parties’ relationship lasted slightly in excess of 13 years. Ms. Metcalfe has received spousal support since the parties' separation in 2011. She presents as a young, healthy and intelligent person. She has a wealth of experience in nursing and related fields of endeavour, and yet her efforts to attain self-sufficiency have been extremely inadequate. The few actual attempts at upgrading or employment to which she was able to point were sporadic and half-hearted. [38] I am aware that the Court has rejected the imposition of an absolute “duty” on a spouse to achieve self-sufficiency even through it is one of the “s. 15.2 factors”. [39] Indeed, in Leskun, the Court noted: 26. Section 15.2(6)(d) of the Divorce Act provides that one of the objectives of the spousal support order is to, "in so far as practicable, promote the [page 933] economic self-sufficiency of each spouse within a reasonable period of time". This Court has rejected characterizing this objective as a duty, see Moge v. Moge, [1992] 3 S.C.R. 813, at p. 853, and Bracklow v. Bracklow, [1999] 1 S.C.R. 420, at paras. 31-32, 35-36 and 43. The respondent advanced a number of reasons why, despite alleged efforts, she had been unable to return to the workforce. She was believed. 27. Failure to achieve self-sufficiency is not breach of "a duty" and is simply one factor amongst others to be taken into account. As stated in Moge and repeated in Bracklow: At the end of the day ..., courts have an overriding discretion and the exercise of such discretion will depend on the particular facts of each case, having regard to the factors and objectives designated in the Act. (Moge, at p. 866; Bracklow, at para. 53) [40] Nonetheless, Ms. Metcalfe has remained "frozen in time". She appears intently focussed upon what she did to further the parties’ marriage, and the corresponding benefit to her husband’s career that was conferred by those efforts. This is not to diminish those efforts, which were clearly important. But I formed the distinct impression that Ms. Metcalfe feels disinclined to move forward. [41] The Court is not without empathy for Ms. Metcalfe. However, for the sake of more than just her financial well-being, she needs to refresh her nursing skills and become once again a capable, confident healthcare provider. This was the persona which enabled her to formerly derive such immense satisfaction and enjoyment from her chosen profession (and, it appears, from her life overall). She needs to make a far greater effort to achieve self-sufficiency than she has demonstrated since the parties separated in 2011. [42] She testified that the LPN refresher course that she requires would cost $10,000.00 and that, as a result of earlier student loan borrowings (now in collections), she has no capacity to acquire these funds. She has had however, plenty of time to have obtained some type of job, even a part-time one, with which to earn the necessary funds to register for the course at Nova Scotia Community College. iii) Is this a case for lump sum spousal maintenance? [43] This impasse cannot continue indefinitely. Ms. Metcalfe has been in receipt of spousal support since November 10, 2011. The parties’ connection (limited as it is to merely provision by Mr. Cowan of periodic spousal support maintenance) is, in effect, now doing her a disservice. [44] To achieve self sufficiency, she requires retraining, and is bereft of funds with which to obtain it. [45] She requires assistance in the form of a lump sum spousal support payment. It will help her to become self-sufficient. I will direct that Mr. Cowan make a one time third-party payment on her behalf to the Nova Scotia Community College (or any other accredited institution which can offer the necessary refresher/upgrade courses so as to enable her to work once again as a LPN). This one time payment will consist of a maximum of $10,000, or such lesser amount as will be required to pay Ms. Metcalfe’s LPN refresher course tuition, other associated costs imposed by the facility, and course materials in full. It shall be paid by him forthwith upon receipt of an invoice from the institution in which Ms. Metcalfe has enrolled, provided that she is enrolled in a course scheduled to begin no later than September 30, 2021. [46] Mr. Cowan's obligation to pay periodic spousal support pursuant to the CRJ in the amount of $2,300.00 per month will remain extant until January 1, 2024. After that date, it will terminate absolutely. Costs [47] Although Mr. Cowan has had (on balance) greater success than Ms. Metcalfe, I am disinclined, under the circumstances, to make an award of costs and exacerbate her financial difficulties. [48] Counsel for the Applicant shall prepare the order. Gabriel, J.