Kenyon v. Kenyon

2011 BCSC 718 Kenyon v. Kenyon IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Kenyon v. Kenyon, 2011 BCSC 718 Date: 20110603 Docket: E102937 Registry: Vancouver Between: Gerald Sidney Kenyon Petitioner And: Doris Elisabeth Kenyon Respondent Before: The Honourable Madam Justice Boyd Reasons for Judgment Counsel for the Petitioner: L.N. MacLean E.A. Witzman Counsel for the Respondent: P.D. Slan Place and Dates of Hearing: Vancouver, B.C. April 6, 2011 and May 6, 2011 Place and Date of Judgment: Vancouver, B.C. June 3, 2011 Introduction: [1] The petitioner seeks several orders: (1) that the Order for Divorce issued on October 30, 1996, which incorporated provisions of the earlier separation agreement, be varied so as to retroactively cancel or reduce the spousal support payable to the respondent; (2) that the respondent's entitlement to receive 50% of the petitioner's university pension benefits be varied or cancelled, on the basis that this entitlement constitutes unjust enrichment, and that accordingly, the payments of all such pension benefits to date ought to be characterized as overpayments "to form part of the retroactive return of support overpayments" sought by the petitioner; (3) that the petitioner is entitled to change the beneficiary of his university pension benefits, and now name his new spouse as his beneficiary in place of the respondent. [2] All of this relief is opposed by the respondent. I will set out the background facts below and then deal with each item of relief sought. Background Facts: [3] The petitioner is a 78-year-old retired university professor. The respondent is a 76-year-old retired homemaker, originally trained as a medical doctor in Germany. [4] The respondent completed her studies and qualified as a medical doctor in Germany in 1959, at which time she married her first husband, Dr. Gottshchiling. The couple left Europe and moved to Purdue University in Indiana, U.S.A., where they both held post-doctoral positions. Their only child Dienje was born in 1960. The couple then moved to Madison, Wisconsin, where her husband held a doctoral position in Human Genetics and she secured a position as a bacteriologist. In 1962 the couple divorced. [5] In the summer of 1962, the parties met and commenced a relationship. At this time the petitioner was still married to his first wife. The relationship continued until late 1962 when the respondent returned to Germany to complete her medical internship so as to qualify for medical practice. [6] Over the next four years, the parties kept in close contact and from time to time, the respondent visited Europe and spent time with the respondent. [7] In late June 1964 the respondent qualified for a full West German medical license and then commenced her residency training. From 1964 until 1966 she completed her residency training in general and abdominal surgery in West Germany. [8] In mid-1966 the petitioner divorced his first wife and strongly encouraged the respondent to move to the United States. In October 1966 she resigned her position as a resident surgeon and moved to the United States with her daughter Dienje. While the parties occupied separate residences for a period, they eventually married on June 28, 1967. Following his divorce, the petitioner had few, if any, assets and their home was essentially furnished with the full household of furniture the respondent had brought from Germany. [9] Within a year, the respondent began the process of qualifying as a licensed doctor in the United States. In July 1968, she passed the Wisconsin State Board Medical Examination. [10] In 1970, the petitioner unilaterally announced that he was accepting a five-year position as the Dean of the University of Waterloo in Ontario. The respondent was upset that she would have to once again begin the process of re-qualifying for medical licensure in Canada. In response, she says that he agreed to limit the university appointment to a single term following which he would return to the United States where she could continue her efforts to re-qualify as a doctor. She says that she moved to Canada, relying on the petitioner's promise. [11] She denies the petitioner's evidence that she refused to look into or otherwise pursue her eligibility for medical licensure in Ontario. To the contrary, she says that in approximately 1971, even as she continued to study to qualify as a full physician in Wisconsin, she approached the College of Physicians and Surgeons in Ontario to make inquiries. She says she was informed that neither her German nor her American medical licenses qualified her to practice medicine in Ontario. Instead, she would first have to apply for a basic internship as well as repeat several pre-medical school courses. She says she was told there was only an "extremely slim" possibility of her successfully competing with other younger candidates for medical school entrance, save possibly for medical school in Saskatchewan. [12] Since a family move to Saskatchewan was out of the question, she says she decided to "keep the family together, support the (petitioner's) career, and wait for him keep (sic) his promise to return to the United States" where she could practice medicine. [13] In the interim she continued with her efforts to re-qualify in the United States. In July 1972 she passed the Educational Council for Foreign Medical Graduates exam. In April 1973 she obtained her Wisconsin State Licence for Medicine and Surgery. Now she was qualified to practice general medicine and surgery in Wisconsin. [14] In order to ensure the issuance of the medical license, she had to immediately commence practice. Accordingly she accepted a locum in Berlin, Wisconsin for one month. [15] In approximately 1975, at the conclusion of his five-year term as Dean of the University of Waterloo, the petitioner announced that he had accepted a second five-year term. The respondent says that once again she was very upset. This time she says he promised that at the conclusion of this term the family would return to the United States where she could return to medical practice. At her insistence, he signed a document before a notary, verifying his promise to return to the United States after this second term. She says that at approximately this time, as a result of the stress involved, she developed "acute and toxic problems with (her) thyroid". [16] Despite these health problems she continued to study and register for various courses and seminars so as to keep her medical knowledge and skills current. [17] In approximately 1980, at the completion of his second five-year term, the petitioner accepted a third term as Dean of the University of Waterloo, this time for a limited term of two years only. The respondent was extremely upset with his failure to honour his earlier promise. As a consequence of the stress involved, she says that her thyroid condition deteriorated and she required both radiation and radioactive iodine treatment. Since that time, she has required daily hormone replacement therapy. [18] In 1982, she says that with the petitioner's apparent financial and emotional support she moved to Israel to work as a volunteer on a kibbutz. While she was there, she says the petitioner telephoned her to advise that he had unilaterally accepted a position as the Vice President Academic at the University of Lethbridge in Alberta. [19] The respondent immediately returned home but the parties were unable to reach any resolution. He insisted that he was moving, either with or without her. She refused to move. In the end result, he moved to Lethbridge alone and she remained behind in Waterloo, Ontario. [20] They lived apart from 1982 to 1985. The respondent insists that while the parties were separated they continued to visit back and forth, implying that there was a live possibility of reconciliation. [21] That said, the parties nevertheless executed a Separation Agreement on August 13, 1982. The Agreement acknowledges the parties' separation and reflects certain obligations for spousal and child support, as well as a division of assets which I will refer to later. The Agreement contains the following terms: · The respondent was to receive a lump sum maintenance payment of US $50,000; · The petitioner would pay ongoing and indexed spousal support payments of $3,062 per month, to be adjusted annually to an amount equal to half the petitioner's gross salary; · that the respondent would receive 100% of the petitioner's interest in the matrimonial home; · that the petitioner would maintain a life insurance policy for $200,000 with the respondent as beneficiary; · after five years, if the respondent earned an amount from employment in excess of $25,000 U.S., the spousal support payments would be reduced by the amount in excess of $25,000 U.S.; and · the parties intend the agreement to be final except for variation in the event of a material change in circumstances. [22] The respondent says that in 1985, after approximately three to four years of separation, she finally reconsidered her position and decided she was prepared to reconcile with the petitioner and move to join him in Lethbridge. However when she informed him of her decision, he told her he would not welcome her in Lethbridge and that he did not want her to move there. She ignored this rejection and decided instead to travel to Lethbridge to discuss the matter. She flew to Lethbridge and, using the key he had given her on a previous visit, she gained entry to his apartment. She found photographs of a nude woman on his desk. She concluded that he was involved with another woman. She called him and told him to come home immediately so that they could discuss the photos and try to salvage the marriage. [23] The respondent places great weight on paragraphs 65 and 66 of her affidavit, in which she states the following: These pictures could have been damaging to the Petitioner's career. In these days, scandal and infidelity could cost you your job, especially if one held a position in the higher ranks of a university. The Petitioner was very concerned that I had possession of those photographs. He contacted the Lethbridge police, forced me to give him back the career-damaging photographs, and had me physically removed from his apartment and brought to the Psychiatric Unit of the Lethbridge Regional Hospital.... [24] The respondent was discharged from hospital the following day and returned home to Waterloo. [25] As I understand it, at some point in 1995, when he was then 63 years of age, the petitioner elected to take early retirement. While the respondent has alleged in these proceedings that he received a very generous severance package in the order of $200,000-$300,000, this allegation is not borne out in the tax documentation which has been produced by the petitioner. [26] In 1996 he commenced a divorce action, in which he sought to vary the terms of the original Separation Agreement. The divorce proceedings were somewhat delayed as a result of the respondent's travel schedule and her failure to disclose the necessary documentation concerning her current financial circumstances. Ultimately the petitioner was forced to apply for an order for disclosure of various documents and information. On June 25, 1996 the Alberta Queen's Bench ordered that the respondent comply with the earlier Notice to Disclose, failing which she would be held in contempt. The respondent apparently did comply with that order. [27] Eventually, with the assistance of legal counsel, the parties were able to negotiate a resolution of the divorce action, culminating in the execution of an Addendum to the original Separation Agreement on October 29, 1996. The salient terms of the Addendum are summarized as follows: · Paragraph 1: Support for the Respondent o The petitioner agreed to pay spousal support of $2,833 per month commencing October 31, 1996, and "continuing during the joint lives of the parties. Support shall be adjusted on July 1 of each and every year commencing with July 1, 1997, in accordance with the cost-of-living adjustment made by the Alberta Universities Academic Pension Plan (AUPP)". o The petitioner agreed to pay the respondent $6,000 on November 1, 1996 and $4,000 on June 30, 1987, in full satisfaction of all arrears of support which had accrued to that date. o The payments described "shall be paid by the Petitioner to the Respondent for the lifetime of the Petitioner. The payments shall cease to be payable upon the death of the Petitioner, on condition that the Respondent receives survivor benefits from the Petitioner's pension, as provided herein." · Paragraph 2: Death of the Petitioner: o Should the respondent survive the petitioner, she shall be entitled to fifty per cent (50%) of the petitioner's AUPP Pension. Both parties shall sign the necessary AUPP documentation in accordance with the provisions of the petitioner's AUPP to implement these payments. The petitioner shall direct his executor, namely Gordon W. Kenyon, or such other executor or legal representative he may have in place at the date of his death, to notify the AUPP authorities and the respondent of his death within seven days of same. · Paragraph 3: Divorce Judgment o The terms of this contract shall survive a Divorce Judgment under the Divorce Act, 1985. · Paragraph 12: o the Addendum amends and supersedes the original Separation Agreement with respect to paragraphs 3, 6, and 16 only, and in all other respects the original Separation Agreement shall remain in force. [28] It is notable that in the Addendum, the spousal support was significantly reduced from over $4,000 per month to $2,833 per month. However, as before, the spousal support benefits constituted roughly half of his indexed pension income. While the Addendum no longer specifically provided that the respondent was entitled to spousal maintenance equating half his gross income, she was provided with the security of support for life -- a term which is restated in both paragraphs 1 and 2. While the petitioner was no longer required to maintain a life insurance policy for her benefit, she was now entitled to 50% of his university pension plan benefit upon his death. [29] A Consent Divorce Order was entered in the Alberta Court of Queen's Bench on the following day, on October 30, 1996. The Order merely replicates those parts of the Addendum which specifically address the ongoing payments of spousal maintenance ($2,833 per month), as well as the $10,000 of arrears of spousal support to be paid on certain dates. The Order makes no reference to the spousal support payments to be paid for the duration of the respondent's life. The Petitioner's Application to Vary the Order for Spousal Support: [30] In his written submission, the petitioner's counsel states that the application to vary the 1996 Divorce Order is based on the premise that the 1992 Separation Agreement, the 1996 Addendum and the 1996 Divorce Order "were entered into contrary to the principles of Miglin v. Miglin, 2003 SCC 24". The petitioner says that these agreements and the Divorce Order which followed met neither the first nor the second steps of the test set out in Miglin in that: (1) the 1992 Separation Agreement, the 1996 Addendum and the 1996 Divorce Order were all "negotiated unfairly" and thus were both "procedurally" and "substantively unfair at the time of inception". Put another way, the petitioner says the Agreements and the order were "unconscionable" and that accordingly, the 1996 Divorce order ought to be set aside; (2) there has been a material change in circumstances since the 1996 Divorce Order was entered. As the petitioner's counsel states in his written submission: "The Separation Agreement, Addendum and the Divorce Order, unless modified on the basis of a material change of circumstance, for the duration and quantum being so far in excess of the duration and quantum principles established by the Divorce Act (Canada) and the Spousal Support Guidelines ("SSAG"), fails to comply with the second step analysis from Miglin". [31] I find that the Miglin test does not apply here. In Miglin an originating application for spousal support inconsistent with a pre-existing separation agreement was brought pursuant to s. 15.2 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). In contrast, in the case at bar, the application is for the variation of a support order and therefore falls within s. 17 of the Divorce Act. Accordingly, the test to be applied is that set out in Willick v. Willick, [1994] 3 S.C.R. 670. [32] Willick provides that for a support order to be varied under s. 17, there must be a material change in circumstances, that is "a change that, if known at the time, would likely have resulted in different terms. If the matter which is relied on as constituting a change was known at the relevant time it thus cannot be relied on as the basis for variation." [33] While I disagree with the petitioner's proposition that the Miglin test applies, his submission is so heavily founded on the proposition that the initial agreements and order were "unconscionable", I feel compelled to at least address this ground for variation. Were the Separation Agreement, Addendum and the subsequent Divorce Order the result of unfair negotiations? [34] In his affidavit material, the petitioner has provided little evidence to support his allegation that the Separation Agreement, the Addendum or the Divorce Order which followed were the result of unfair negotiations. Indeed it would appear that his evidence is limited to the following statements at paragraphs 36 and 43 of his affidavit: 36. In 1995, I initiated divorce proceedings and in 1996 I filed a petition for divorce. The divorce was preceded by a number of years of harassments and threats from the Respondent. These included threats to disrupt my personal and professional life and the people in it. She made frequent harassing telephone calls to complain about me, others, and her ostensible disability or imminent death owing to dubious medical conditions. I received many letters from the Respondent in the same vein; threats to do something drastic if I did not conform to her wishes, such as return home immediately while I was attending professional meetings or conferences overseas. On more than one occasion the Respondent threatened suicide. As a result, I did not take legal action to file for divorce for some time after separation. For the same reasons, I was prepare to agree to concede similar terms to those in the Agreement and well beyond those the courts or ration person might find acceptable to avoid further confrontation with the Respondent. ... 43. Despite the dramatic drop in my income after retirement in 1995, the Respondent received spousal support payments in the amount of $2,833.00 per month for an annual amount of $33,996.00, which at the time was over 50% of my pension income and only $228.50 less than I had been paying when I was a salaried employee. I agreed to this deal because I felt this was the only way I would be free of the harassment and emotional distress caused by the Respondent's behaviour. [Emphasis added.] [35] In effect the petitioner states that he negotiated all of these various agreements (the original Separation Agreement, the Addendum and the Divorce Order which followed) as a means of escaping the respondent's unrelenting threats and harassment. While he does not specifically characterize the respondent's actions as duress, he is effectively stating that the respondent's behaviour had that effect upon him. [36] Yet the preamble to the Addendum provides as follows: AND WHEREAS the parties acknowledge that neither is under any duress or undue influence of the other and that they are voluntarily entering into this Agreement. [37] Further at paragraph 6 of the Addendum, both parties specifically acknowledged the following: 6. MISREPRESENTATION AND UNDUE INFLUENCE The parties hereto confirm that the foregoing has been entered into without due influence or fraud or coercion or misrepresentation whatsoever, that each has read the within Agreement in its entirety and with full knowledge of the contents thereof and has hereinafter voluntarily subscribed hereto and covenants to comply strictly with the terms thereof. [38] The petitioner is not an unsophisticated individual nor one with intellectual or language challenges. He is a retired university professor. He had the benefit of legal counsel when the original Separation Agreement was signed in 1992 and to the extent he was dissatisfied with the terms of that Agreement, he had the better part of four years to consider his position before revisiting the issue of spousal maintenance on commencement of the divorce proceedings in 1996. By that time he had apparently determined the terms of the original Separation Agreement were unacceptable. Accordingly, as a term of relief in the divorce proceedings, he sought a variation of the terms of spousal support set out in the original Separation Agreement. Before any negotiations were finalized he had the benefit of a court order forcing the respondent's disclosure of her financial circumstances. In his affidavit he acknowledges that when the respondent finally did disclose her circumstances, it was clear to him that she was not suffering financially and that she had substantial assets which produced an ancillary source of income for her, in addition to the spousal support which he was then paying to her. In spite of that knowledge, and with the benefit of legal counsel, he then negotiated the Addendum to the Separation Agreement which effectively replicated the respondent's entitlement to spousal maintenance, albeit now tailored to reflect his lower retirement income, although tailored to provide for her lifetime financial security. [39] While it may be that following the incident in Lethbridge in 1992, the respondent did continue to "harass" him, it should be noted that he elected to take early retirement from his university position in 1995. The impugned photographs had long since been returned to his possession in 1992, in fact on the very heels of the Lethbridge incident. Thus as of late 1996, his desire to protect his professional or other status as a university professor was no longer in play. [40] On a review of all of the evidence I am unable to accede to the suggestion that the original Separation Agreement or the Addendum or the subsequent Divorce Order which followed were based on unfair negotiations or some form of duress and therefore ought to be set aside. Has there been a material change in circumstances which justified the variation of the spousal support order? [41] The central issue on this application for variation is whether there has been a material change in circumstances. This is the threshold test set out in Willick and must be addressed here. In Willick, Sopinka J. explained what is meant by "change" at p. 688: In deciding whether the conditions for variation exist, it is common ground that the change must be a material change in circumstances. This means a change, such that, if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation. [42] In Willick, in addressing the issue of what constitutes "a change", L'Heureux‑Dubé J. stated at pp. 733-34: In my view, having regard for the wording of s. 17(4) of the Act, the preliminary threshold test ensures that ...support orders will not be re-assessed by courts anytime a change, however minimal, occurs in the circumstances of the parties or their children. This approach recognizes the value in some degree of certainty and stability between the parties. Parties must be encouraged to settle their difficulties without coming before the courts on each and every occasion. Nonetheless, the threshold test cannot be applied properly unless the sufficiency of the change in circumstances is evaluated against the backdrop of the particular facts of the case at hand. It is important to point out that the Act does not qualify "change" but merely states that "the court shall satisfy itself that there has been a change". [Emphasis in original.] [43] Once this threshold test is met, the Court then proceeds to a fresh examination of the entirety of the present circumstances of the parties including a consideration of the agreements between the parties, the original order, the age and health of the parties, their relative financial circumstances, etc. [44] The petitioner says that there has been a material change in circumstances in three respects: (i) First he notes that he remarried his new wife, Carole Kenyon, in 1997. She was employed for 19 years with the University of Lethbridge and retired in May 1998. The couple then moved to the Okanagan where she returned to work, this time with World Leisure and Recreation. She continued to work until October 2006, when she retired. He says that her financial position will be compromised considerably upon his death since the Addendum requires that the respondent be named as the beneficiary of his Universities Academic Pension Plan (AUPP) pension survivor benefits. He says that he will not be allowed to provide for the proper financial security and support of his new spouse in retirement, unless, contrary to the terms of the Addendum, he is allowed to identify her as the beneficiary of his AUPP pension survivor benefits. (ii) Second, he says that his Wisconsin Retirement System Annuity (WRS), (which I understand to be the Wisconsin University pension plan) has significantly decreased in value, resulting in a significant decrease in his ongoing retirement income; and (iii) Thirdly, he says that the respondent's overall financial position has improved to the point where she now has significantly more assets than him, such that she is no longer dependent on the generous spousal support payments set out in the Divorce Order. [45] The first issue is whether the threshold test set out in Willick has been met, that is whether any of these alleged changes amount to a material change of circumstances within the meaning of s. 17(4) of the Divorce Act? (I should note here that the original Separation Agreement contained a "material change of circumstances" clause, which was not amended or superseded by the Addendum.) [46] The change in circumstances alleged must all have arisen since the date of the date of the 1996 Divorce Order. The respondent submits that a comparison of the general circumstances which prevailed in 1996 as opposed to those which prevail today does not reveal any material change. [47] The petitioner was 63 years of age in 1996 and had retired a year earlier. He is older today but still retired. In 1996 he was in a relationship with his present wife whom he married sometime the following year (1997). In the respondent's submission, the fact that he would marry his new spouse at some point in the near future was clearly foreseeable when the petitioner executed the Addendum to the Separation Agreement in 1996. He continues to be married to his second wife today. [48] For her part, the respondent was 62 years of age in 1996. She is older today. She lived alone in Waterloo, Ontario in 1996 and she continues to do so today. She was not working in 1996 and is not working today. In her submission, she had no prospects for employment in 1996, and that continues to be the case today. [49] The petitioner appears to suggest that at the time the Divorce Order was entered, there was some expectation the respondent would finally realize her dream of returning to medical practice. I reject that suggestion. While there may have been some very slim expectation she would return to work in 1992, the original date of separation, I very much doubt this was the case in 1996, when she was 62 years of age. By this point she had not practised since 1973--some 23 years. [50] As to the change in his financial circumstances, the petitioner points to the fact that the primary source of his income is from the AUPP. In 2009 his gross AUPP pension benefits in 2009 were $61,316.40, with a net pension income of $49,234.92 after taxes. Of this amount, $41,835.96 was ear-marked to pay spousal support to the respondent, leaving him with a net annual AUPP pension income of $7,398.96. [51] As to the WRS pension, which is not ear-marked for the respondent in the Addendum, the petitioner submits that the situation is much bleaker. This is a very modest pension which he paid into between 1961 and 1970, while a university professor in Wisconsin. It is not a defined benefit plan but rather one which is tied directly to returns on market investments. As a result of the global economic crisis in 2008 and the strengthening of the Canadian dollar, he says that the value of his WRS pension has significantly decreased in value. In 2009, the WRS saw a total decrease in benefit payments of $422.50 U.S. per month, or $5,384.56 in 2009. [52] In his written submission the petitioner's counsel states: "It was not foreseeable that the Respondent would continue to reap the benefit of guaranteed increases to her support payments while the Petitioner would absorb all risks and losses associated with market forces outside his control." I gather he means it was not foreseeable that the terms of the Addendum would have her enjoy a guaranteed annual increase in spousal support resulting from a Cost of Living Adjustment clause applicable to the AUPP pension, while he would be left to absorb all of the losses associated with pension market returns in respect of the WRS pension. [53] I have some difficulty with this argument. Obviously, it was foreseeable that her spousal support would increase in accordance with the cost of living since the 1996 Divorce Order specifically states that the spousal support payments were to be adjusted on July 1 of each year "in accordance with the cost-of-living adjustment made by the AUPP". Since the spousal support payments were tied to the AUPP, she would benefit as those benefits increased in value. So too, the petitioner would benefit as his own share of the AUPP pension also increased in value. [54] As to the decrease in the value of the WRS pension by virtue of the economic recession in 2008, while the economic recession itself was perhaps not foreseeable, it must have always been understood that the value of the WRS pension was dependent on market forces since it was not a defined benefit plan. [55] In my view, the heart of the petitioner's submission is that on a comparison of their relative circumstances, the petitioner's position is now much worse than that of the respondent and that accordingly, there ought to be a variation of the Divorce Order. [56] He says she has accumulated assets far greater than those possessed by him, to the point that she has achieved self-sufficiency since the making of the 1996 Divorce Order. [57] He says that since the 1996 Divorce Order she has accumulated significant savings which are now throwing off investment income. He notes that she collects an American Social Security Pension income, and suggests that she is also eligible to receive German government pension benefits. He notes that she owns and occupies a condominium town home in Waterloo, Ontario yet spends $1,400 per month renting an apartment in Toronto, for the purpose of visiting her late daughter's gravesite there. He submits that she owns a 5.35 acre lot in Wellfleet, Massachusetts valued at $499,000-$1,100,000. He also believes that the respondent has claimed an interest in certain property in Potsdam, Germany, once owned by her late parents. All told, he submits that her property holdings likely have a value in the order of $1.07 million to $1.2 million. By any measure, he submits she is economically independent. [58] I am not persuaded that some of the petitioner's assertions have been proven. I accept her statements that she is not eligible to receive any German government pension benefits. I also accept her evidence that she does not have any right to claim an interest in her late parents' property in Potsdam, which property was repatriated to the German government by virtue of a failure to pay taxes. While it is true that at one point in time the Massachusetts property had been listed for sale at $1.1 million, that listing yielded no offers of purchase. In the opinion of the local realtor (Exhibit E, Tab 4 of Chambers Brief) he would place a value of no more than $499,000 U.S. on the property. That said he notes that no vacant non-water view land in the area has sold for more than $300,000 in the last three years. [59] On a comparison of the parties' overall circumstances, the respondent says that her circumstances are not dramatically better than the petitioner's. [60] She notes that he receives pension income of $99,882, CPP/OAS benefits of $62.03 and $76.95, dividend income of $2,945 and interest income of $1,569.50. Deducting his spousal support obligation of $41,381, leaves him with net before tax income of $76, 950. This exceeds the respondent's own gross income of $53,803. [61] If one adds the petitioner's wife's income (2009 tax return) to the equation, his total household income is $135,295. Clearly that sum is significantly more than her household income of $53,803. [62] In terms of assets, he says that his net worth is $607,000. (I should note here that while the respondent submits the petitioner has not properly accounted for the $200,000-$300,000 profit realized on the sale of his Lethbridge home, I am not persuaded that his tax returns reflect any profits which are unaccounted for. I accept that the bulk of those funds were spent renovating their retirement town home in Penticton, B.C.) In any case, in alleging his net worth is $607,000, the petitioner reflects the value of his half-interest in the Penticton town home and his half-interest in the joint GIC account and savings accounts, both of which he holds in joint tenancy with his wife. While the Court would normally not factor in the full value of the jointly owned property in assessing a party's net worth, I am inclined to do so here, particularly where one of the petitioner's primary concerns is his new wife's financial position following his death. Following his death, she will be left with the entirety of that property, not the half interest only. [63] Factoring in the full value of the property he owns jointly with his wife ($429,000 for the Penticton town home, against which there is no mortgage), as well as the full value of the joint GIC account and savings account held with his wife, his actual net worth is more in the order of $835,000 against which he shows debts totalling no more than $29,200 (a $1,200 VISA bill and a kitchen and bathroom renovation contract). [64] As to the respondent, her assets total approximately $1,074,000 -- made up of real property: Waterloo condo $645,300; the Wellfleet, Massachusetts property $393,800; and investment funds and accounts, $417,519. She acknowledges that over the years she has been able to build up a considerable pool of assets. However she says she has done so entirely by virtue of the fact that she has adopted a very frugal standard of living and has employed very careful financial advisors who have kept her investments in low risk holdings. She says that she is diligently saving money in anticipation of a time when she will live in an assisted care living facility which she anticipates will be very costly. [65] While there are some differences in the parties' financial positions, the differences in my view are not significant nor are they differences which could not have been anticipated at the time the 1996 Divorce Order was entered. The respondent's Waterloo condominium was purchased with the proceeds of sale of the original matrimonial home. She acquired the Massachusetts property even prior to the execution of the original Separation Agreement. The original Separation Agreement called for the payment of a lump sum of $50,000, in addition to ongoing spousal support. The Addendum called for a lump sum payment of $10,000 (in payment of arrears in spousal support which had accrued) plus ongoing spousal support. The fact that the respondent would succeed, living frugally, in accumulating significant savings must have been anticipated. Conclusion: [66] Thus, on a review of all of the evidence, I am not persuaded that the petitioner has met the onus of meeting the threshold test set out in Willick -- that is demonstrating that there has been some material change in circumstances since the date of the original order. [67] It is true that eleven years have passed since the date the Divorce Order was entered, that the petitioner is older and remarried, and that he now wishes to save money for his retirement and to ensure his new wife's financial security in the event of his death. But as the authorities reveal, the normal process of aging and the maturation of the family unit do not suffice as a change of circumstances. Such changes are universal (Rondeau v. Rondeau, 2011 NSCA 5). [68] I find that none of the changes alleged by the petitioner amount to a material change in circumstances, such as to satisfy the threshold test set out in Willick. Accordingly, I dismiss the application with costs to the respondent. "The Honourable Madam Justice Boyd"