Spousal Support, Material Change in Circumstance
Bhandhal v Bhandhal, 2015 ONSC 1152
This case addresses the issue of varying spousal support, material change in circumstance, Spousal Support Advisory Guidelines.
The parties were married for 18 years and 7 months. The Applicant Husband moved to vary his spousal support order after having paid support to the Respondent Wife for 18 years and 10 months. There were no children of the marriage.
Mr. Bhandhal was 55 years of age and in very poor health. His doctor had advised him that he might not pass an upcoming vision test, which would result in him losing his job. Mr. Bhandhal was a bus driver for the City of Hamilton and his income ranged from $89,000.00 to $100,000.00 in the years preceding the variation application. Mr. Bhandhal had court ordered support obligations that totalled approximately $1,800.00 per month, which included child support payments to his second wife. He was also financially responsible for his third wife and their young child.
Ms. Bhandhal was 59 years of age and had significant health problems that affected her ability to work. She lived in her brother’s home and had savings of approximately $260,000, mostly from the growth in the value of assets she acquired on marriage breakdown. Ms. Bhandal did not work for the six years prior to the parties’ separation as they tried, unsuccessfully, to have children.
Pursuant to subsection 17(4.1) of the Divorce Act, the Court must be satisfied that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order before it can make a variation order. The change must be a material one, meaning “a change, such that, if known at the time, would have likely resulted in different terms” (LMP v LS, 2011 SCC 64 at paragraph 44).
In the case at bar, the Court was unable to determine whether a material change in circumstance had occurred. No information was provided on the circumstances of the parties at the time of the 1999 spousal support order. The Court acknowledged that Mr. Bhandhal had substantial financial obligations to his new family, but makes clear that new responsibilities do not take priority over Ms. Bhandal’s claim to support. This is in line with the “first-family-first approach” that was endorsed by the Ontario Court of Appeal in BV v PV, 2012 ONCA 262.
With respect to Mr. Bhandhal’s argument that his declining health may cause him to lose his job, the Court cites Dufresne v Dufresne, 2009 ONCA 682 and writes that “a payor cannot rely on a future, speculative change that may relate to his future financial circumstances to justify a change in spousal support” (paragraph 33). If Mr. Bhandhal’s health affects his income in the future, this may generate a material change in circumstance that could reduce or eliminate support. In the meantime, he is still earning a substantial income and can afford his support payments.
The Court found that Ms. Bhandhal gave up financial benefits while she was married and was still suffering economic disadvantages as a result of the marriage. According to the Spousal Support Advisory Guidelines, the duration of spousal support in this case should fall between 9 and 18.5 years. Although Mr. Bhandhal had already paid spousal support for longer than 18.5 years, he paid well below the recommended quantum. In fact, Ms. Bhandhal received thousands of dollars less than the Guideline amount for many years.
After considering the factors listed in subsection 17(7) of the Divorce Act, the Court held that the support as presently ordered should not be reduced. Accordingly, Mr. Bhandhal’s application to vary spousal support was dismissed.