The parties were married on July 3, 1987 and separated after a 21-year marriage on August 17, 2008. The applicant wife was 66 years old, while the respondent husband was 58 years old. The husband was employed as a utility service representative for Enbridge, earning approximately $99,000 per year, while the wife assumed the more caregiving role of the parties’ children during the marriage.
In 2019, the husband decided to retire from his employment at the age of 55, resulting in his income being reduced from the aforementioned $99,000 to the distributions from his employment pension in the amount of $30,000 per year. As such, the husband requested a reduction in spousal support as there had been a material change in circumstances due to his retirement.
The husband claimed that his retirement was involuntary due to the significant physical toll that his work had taken on him during his decades of work. Physical repercussions from his work included requiring knee surgery, developing sciatica requiring chiropractic treatment, as well as issues with his clavicle bone. His doctor did not prescribe any medication but recommended he cease working. The husband testified at trial that if he had the ability to work, he would have continued, and if he could meet his obligations to his wife, he would do so. Despite his medical difficulties, the husband was not able to provide any medical evidence before the court to substantiate same due to a failure by husband’s counsel to serve said records in a timely manner.
The wife disputed the voluntariness of the husband’s retirement, stating that there had not been a material change in circumstances, specifically pointing to the lack of medical evidence proffered by the husband.
The court initially detailed the test for a variation of a spousal support order, namely under section 17(4.1) of the Divorce Act, whereby the court must be satisfied that there was a change in the condition, means, needs or other circumstances of either former spouse since the support order. In determining this issue, the court turned its mind to the evidence provided by the husband to support his argument that there had been a material change in his circumstances.
Citing Leskun v Leskun, the court highlighted that although medical evidence of a party’s physical or mental condition is desirable, it is not essential. The court is still within its ability to consider the testimony of a party claiming medical difficulties to be credible. A judge is not precluded from making a finding of fact purely based on the credibility of a witness.
This occurred in the case at bar, with the court accepting the husband’s evidence that he was experiencing significant medical issues resulting from his employment, necessitating his retirement. Despite the absence of medical evidence to support his claims of pain, the court held that the husband’s testimony was credible and was given “without embellishment”. The husband’s statement that he would have continued the work had he the ability to do so, proved persuasive for the court in showing his diligence to his support obligations. The husband’s pain had simply been too much to bear for him to continue working.
The case of Davis v Davis illustrates the ability of a court to rely on the genuineness of a party in fulfilling their spousal obligations, despite the lack of medical evidence in support of same. This is not to say that this is a regular occurrence. Medical evidence to support a claim for involuntary retirement due to inability to work is still heavily preferred. However, a court is still within its ability to order a reduction in spousal support based on a party’s genuine testimony that he could not work any longer than he did.
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