2008 BCSC 160 Gajdzik v. Gajdzik

Before: The Honourable Mr. Justice A.F. Wilson

In Chambers

Reasons for Judgment

Counsel for the plaintiff:	G.W. Currie
Counsel for the defendant:	D.L. Mancell
Date and place of hearing:	January 30^th & February 1^st, 2008
	Courtenay, B.C.

I Introduction

[1] By Notice of Motion filed October 30^th, 2007, Mr. Gajdzik seeks orders that:

1. The Order of May 15, 2003 be amended to cancel spousal support;

2. Remove the Plaintiff as a beneficiary of the Defendant’s I.W.A. Pension Plan.

[2] At the hearing, Mr. Gajdzik did not proceed with the application for the order to remove Ms. Gajdzik as the beneficiary on his pension plan, as he is apparently able to make that change without the need for a court order.

[3] The order of May 15^th, 2003 referred to is the order of Shabbits J., made after a two day trial. In that order he granted a divorce. He also made provisions which the parties agree effected an equal division of the family assets. That included a provision that Mr. Gajdzik’s I.W.A. pension plan is a family asset, and for it to be divided in accordance with Part 6 of the Family Relations Act, R.S.B.C. 1996, c.121. That has been done, with Ms. Gajdzik electing to take a lump sum benefit in the amount of $80, 518, rather than a monthly payment for life which she could have received, in the amount of $519.65. The order also provided for the former family home to be sold, with both parties to have conduct of sale, and Ms. Gajdzik to remain in occupation until it was sold. In fact, Mr. Gajdzik bought out Ms. Gajdzik’s interest in the property in January, 2004, and is presently in occupation of it. The paragraphs most material to this application are paragraphs 17 and 18, which provided as follows:

17. The plaintiff is entitled to periodic spousal support from the defendant, which he shall pay monthly in the amount of $1,000.00 while the plaintiff remains resident in the former matrimonial home, and thereafter, in the amount of $1,500.00 per month.

18. Either the plaintiff or the defendant may apply for a review of spousal support, which will not be heard until after September 01, 2006, or upon a material change in circumstances.

[4] As the order provided for a review after September 01, 2006, this application is a review, involving the principles set out in s.15.2 of the Divorce Act, R.S.C. 1985, c. 3, rather than the principles applicable to variation under s.17 of the Divorce Act.

[5] The issue the application raises is whether Mr. Gajdzik should be relieved of his obligation to provide spousal support for Ms. Gajdzik because he wishes to retire at age 60 from a heavy physical job which he has had for almost 40 years, and which he feels he is no longer able to manage. There is also an issue as to whether Ms. Gajdzik has made reasonable efforts to become self-sufficient since the separation of the parties, approximately 7 ½ years ago.

II Facts

[6] Mr. Gajdzik was born on May 31, 1947, so is now 60 years of age. He is employed by Western Forest Products as a heavy duty mechanic. He has spent 44 years in the work force, and 39 years in what he describes as “a heavy physical job” (Affidavit #2 filed December 18^th, 2007, paragraph 15). That is not disputed. He says that he now wants to retire as, “My health will not tolerate it anymore”. However, there is little medical evidence in support of that statement. Attached as Exhibit “B” to his affidavit filed January 29, 2008 is a note from his doctor. It indicates that Mr. Gajdzik “has several medical problems at the moment”, for which he is awaiting testing. In that affidavit, Mr. Gajdzik said that he saw a heart specialist on January 24th, 2008, and has been referred for a stress test and heart monitoring on February 6^th, 2008. In addition, he has been referred to see a neurologist for “a problem with (his) nerves in (his) hands and feet”. Despite those pending tests, he has elected to proceed with this application before obtaining the results. In the result, as the matter presently stands, there is no evidence that he is not physically able to continue with his employment. At present he is on lay-off, but in a letter to his employer he refers to his understanding that his employer will return to full production in April. That letter advised that he would be retiring at that time.

[7] It may be significant, with respect to his motivation for retirement, that in the same paragraph of his affidavit in which he indicated his wish to retire, he also stated, “I do not feel that I should be paying support to the plaintiff any longer. The plaintiff has had 7 ½ years to get a job and better her education and has chosen not to”. (Affidavit #2 filed December 18, 2007, para. 15).

[8] Ms. Gajdzik was born on December 21^st, 1952, so is 55 years of age. Her affidavit filed December 11^th, 2007 indicates that she has a grade 10 education, then worked for 2 ½ years as a store clerk and a chambermaid before becoming a “housewife”. She has not worked outside the home since that time.

[9] The parties were married on May 31^st, 1975 (according to the marriage certificate on file, rather than May 31^st, 1974, as set out in the Statement of Claim and the divorce order). There were two children of the marriage, Dustin Victor Thomas Gajdzik, born April 13, 1981, and Katrina Monica Gajdzik, born February 27, 1983. There was thus a number of years after the marriage before children were born. However, Ms. Gajdzik did not work outside the home even during that period. That supports her position that she was home on a full-time basis at the request of her husband.

[10] The separation of the parties took place, according to the Statement of Claim, on July 14, 2000. In his affidavit filed October 10^th, 2007, Mr. Gajdzik says that he has been paying spousal support since June 15th, 2000. In any event, however, the marriage was one of 25 years duration. Mr. Gajdzik has been paying spousal support for more than 7 1/2 years since that separation.

[11] Initially, after the separation, Ms. Gajdzik says that she did make efforts to upgrade her education. However, after the trial she says, “. . . I felt such a sense of relief but at the same time instability that I stopped taking the courses to get myself a short ‘breather’, look into buying a new house and organize my life generally”. (Affidavit filed December 11^th, 2007, paragraph 9). Her reasons for not seeking employment right after the separation are set out in her affidavit filed December 11^th, 2007, paragraph 6 and 7, as follows:

6. At the time of separating from the Defendant I experienced a profound sense of dread. I was so afraid of how I was going to look after myself. I only completed grade 10 and had only worked for about two and one half (2 ½) years as a store clerk and a chambermaid before I became a “housewife”. I hadn’t worked in 25 years. I had no idea what I was going to do or what was available to me. The requirements of the work force had changed so much during that time. I had been cutoff from people generally. Now I had to go out into the community and educate myself and be amongst people.

7. I had no confidence in talking with anyone. I didn’t think anyone would be interested in what I had to say and now I was forced to go out into the work to make a living. It was completely overwhelming and I felt hopeless and lost. I believed I was too stupid and couldn’t study to educate myself. I felt I had nothing to offer an employer. Finally, I felt like failure because I couldn’t even make my marriage work. All of these things were deeply ingrained.

[12] However, in paragraph 8 she states:

I am continuing to heal and am much happier and capable as a human being now than I was at the time of separation.

[13] The reasons given by Ms. Gajdzik for not resuming her education, or obtaining employment, after the trial were as follows:

a) In December, 2003, her mother, with whom she was very close, died of cancer, which was a huge loss to her;

b) In January, 2004, Mr. Gajdzik bought her interest in the family home, and she had to purchase a new home, which she found to be “a huge adjustment”, as she had lived in the former family home for 25 years;

c) Initially both children moved into her new home with her, as Katrina was not working. Dustin was working at Quinsam Coal, paying $500 per month room and board. Since then, Katrina has obtained employment, as a cashier at Tim Horton’s. However, she works only approximately 35 hours per week at near minimum wage, so her annual income is only about $13,000 per year. Most significantly, Dustin moved out in the summer, 2004, but was involved in an industrial accident in August, 2004. After that, he returned to light work, but was then in another work related injury in which he sustained a closed head injury as well as ligamentous injuries to his neck and low back. He thus moved back in with his mother in January, 2005. Ms. Gajdzik has provided care for him since that time, set out in paragraphs 24 to 32 of her affidavit filed December 11th, 2007. Paragraph 24 gives a good indication of the care provided:

24. After the second accident, he was unable to care for himself and he moved back home with Katrina and I on January 2, 2005. The past three years have been very difficult for him, myself and his sister. Dustin is extremely depressed and up until very recently has been in denial that he had a head injury. He has been very uncooperative. I have been working with and in contact with the head trauma support group and have received lots of information from people suffering from head injuries. I’m advised it is very important to push and prod those with head injuries as they tend to become very docile and not wanting to do anything. As a result I’ve been trying to get him into a routine and get him involved in life.

[14] A letter from Dustin’s doctor dated November 22^nd, 2007, indicates that he is incapable of working as a result of the closed head, neck and low back injuries.

[15] Turning to the financial situation of the parties, it is set out in the Form 89 Financial Statements that each have filed.

[16] Rounding off the amounts shown on Line 150 of their respective income tax returns, Mr. Gajdzik received $66,000 in 2004, $69,000 in 2005, and $63,500 in 2006. The amount received by Ms. Gajdzik in each of those years was $19,000 in each of 2004 and 2005, and $21,000 in 2006 (primarily the spousal maintenance of $18,000 each year received from Mr. Gajdzik).

[17] In 2007, Mr. Gajdzik’s earnings to November 30^th, were $46,545. He expected to earn a further $4,500 to the end of the year, and also received strike pay during the strike, bringing his total annual income to about $53,000. The reduction from previous years was largely due to the three month strike from July until October, 2007. Ms. Gajdzik’s income was again primarily the maintenance received from Mr. Gajdzik.

[18] The Draft Spousal Support Guidelines were issued only in January, 2005, and were thus not available at the time the order was made in May, 2003. However, using a very rough calculation of the average difference between the incomes of the parties from 2004 to 2007 of $60,000, the range of spousal support payable under the Guidelines would have been from approximately $1,875 per month to $2,500 per month. As the marriage was for more than 20 years duration, that amount would be payable indefinitely.

[19] Even with the downturn in the forest industry, it is reasonable to expect that, with his seniority, if Mr. Gajdzik returned to work in April, he would be able to continue to receive income from employment and employment insurance benefits in the range of $60,000 per annum. If Mr. Gajdzik does retire in April, as he has advised his employer he will do, his income will be substantially reduced. After the payment to Ms. Gajdzik of her share of his I.W.A. pension, he will receive only $975 per month from that pension. In addition, he expects to receive Canada Pension Plan benefits of approximately $400 per month, giving him a total income of $1,375 per month. Until the proposed retirement in April, Mr. Gajdzik will receive employment insurance benefits of approximately $1,500 per month.

[20] In his Form 89 Financial Statement, Mr. Gajdzik shows his expenses at present as being $5,308 per month. Even if he were not required to pay the spousal support of $1,500 per month, that would still leave expenses of $3,808 per month. Those expenses will obviously have to be reduced substantially if he does retire, unless he has other income or draws on his modest assets. In that regard, I note that he is qualified as a heavy duty mechanic, and consider it likely that he could earn some income working as such on a part-time basis, even if not as much as he is earning working full-time with Western Forest Products. Mr. Gajdzik says that if he has to continue to pay spousal support, he will have to sell his home. He may well have to in any event, if he continues to have expenses of $3,800 per month and no other income. That may make sense, in any event, as he is apparently living alone in a large home on an acreage.

[21] With respect to his capital position, Mr. Gajdzik shows himself having a one-half interest in his home, valued at $150,000. There are questions about that. In paragraph 4 of his affidavit filed January 8^th, 2008, Mr. Gajdzik states:

My personal arrangements with my sister Monica Evans and her Husband George Evans is that they are half owners in the property as a result of lending me the necessary funds to pay the Plaintiff her share of the family assets. I make no payments to them on their registered mortgage on the house because of our ownership agreement. I make the payments on the first mortgage to the Credit Union.

[22] However, his Statement of Expenses does not show any rent or mortgage payments, nor any payments on debts. The title search of the property shows that it is registered in his name alone, with a first mortgage in favour of the Credit Union, and a second mortgage in favour of Mr. and Ms. Evans. The Form B mortgage documents registered at the Land Title office indicate that the principal amount of the mortgage to the Credit Union was $30,000 as of December 30^th, 2003. In addition, the mortgage granted to Mr. and Ms. Evans is stated to be in the amount of $85,000 as of December 30^th, 2003. The Authority to Pay dated December 17, 2003, indicates that there were mortgage proceeds in the amount of $115,000, approximately $11,000 of which was used to pay out an existing Credit Union mortgage, $85,000 to buy out Ms. Gajdzik’s interest, and $18,000 to Mr. Gajdzik himself. Even accepting Mr. Gajdzik’s evidence that his arrangement with his sister and brother-in-law is that they have a half interest in the property, rather than an interest as mortgagees, it appears that Mr. Gajdzik has been able to increase his equity since buying out Ms. Gajdzik’s interest. On his Financial Statement, the only debts he shows are two debts to the Credit Union, totalling approximately $25,000. I note also that the value of his one-half interest is based on the assessment as of July 1^st, 2006, which had increased approximately $50,000 from the previously year. All of those matters do raise serious questions about the real value of his equity in the home.

[23] Apart from his interest in the home, and the Credit Union debts, he has a small savings account, an R.R.S.P. with a value of approximately $30,000, and his I.W.A. pension plan.

[24] With respect to Ms. Gajdzik, she does have a home with an assessed value, as of July, 2006 of $278,000. Against that she has a mortgage of approximately $83,000. She has a Jeep vehicle valued at $6,000, a small savings account, and R.R.S.P.s with a value of $111,130. The largest part of that is the amount of $80,518 received as her share of Mr. Gajdzik’s I.W.A. pension. She also has unsecured debts of approximately $17,000, including almost $8,000 of income tax and approximately $8,500 on credit cards.

[25] Leaving aside the questions of the value of Mr. Gajdzik’s equity in his home, and including some value for his pension, it appears that the parties have very roughly similar value of assets.

[26] Ms. Gajdzik also shows an amount from monthly expenses of approximately $3,200 per month, which obviously is not maintainable on the amount of her income, even including the maintenance she now receives, unless she has other sources of income. She indicates that she has been able to maintain herself only by depleting the savings she had at the time of the separation, indicated to be approximately $11,400 in September 2006, and by incurring debts on her charge cards.

III Law

A. General

[27] As noted in paragraph 4 above, this application is for review of the existing order pursuant to a provision in that order, rather than for variation pursuant to s. 17 of the Divorce Act. There are a number of implications of that. First, it is not necessary for Mr. Gajdzik to show any change in circumstances: Leskun v. Leskun [2006] 1 S.C.R. 920, 62 B.C.L.R. (4^th) 197. The cases involving variation, and the need to show change which is substantial, unforeseen, and of a continuing nature are thus of limited application.

[28] Second, the objectives of spousal support, as set out in s. 15.2(6) of the Divorce Act must be considered, in the manner first set out by the Supreme Court of Canada in Moge v. Moge, [1992] 3 S.C.R. 813. The first point of importance to this case arising from the Moge decision is that the objective of self-sufficiency is only one of the objectives enumerated in s. 15.2(6) of the Divorce Act, and it should be given no more priority than the other objectives set out. Further, that objective is to be a goal, as stated in s.15.2(6)(d), only “insofar as practicable”. The court noted the effect that divorce and its economic effects often have, in leaving the wife as the economically disadvantaged partner.

[29] Dealing with the objective of self-sufficiency, Proudfoot J.A. of the British Columbia Court of Appeal in Story v. Story (1989), 23 R.F.L. (3d) 225 at p. 245 stated:

However, I would like to add one further comment, when dealing with the aspect of economic dependency and its relationship to obligations arising from marriage. There may be cases where self-sufficiency is never possible due to the age of the spouse at the marriage breakdown. It is often, in my opinion, totally unrealistic to expect that a 45 – or 50 year old spouse who has not been in the job market for many, many years to be retrained and to compete for employment in a job market where younger women have difficulty becoming employed. Employment and self-sufficiency are simply not achievable. In those cases, the obligation to support must surely be considered to be permanent. That obligation must flow from the marriage relationship and the expectations the parties had when they married.

[30] As expressed by the British Columbia Court of Appeal in Rogers v. Rogers (1999), 67 B.C.L.R. (3d) 315, the former wife does not have an obligation to become self-sufficient, only to make reasonable efforts to do so. What is reasonable must be considered in light of all of the circumstances.

[31] The second point arising from Moge relevant to this case is that, particularly with a long-term “traditional” marriage, as this one was, there should be what was referred to as “an equitable sharing of the economic consequences of the marriage or its breakdown”. Work within the home must thus be given equal value to that in the paying workplace. That point was taken up by Prowse J.A. in Yemchuk v. Yemchuk, 2005 BCCA 406 at para. 50 as follows:

While equalization of the standards of living of the parties is not a stated objective of spousal support, in long-term marriage in which the parties have approached their roles as a partnership where each contributed their various resources, both economic and non-economic, to the relationship, equality of standard of living (which is not the same as equality of income) may well be the just result. . . .

[32] In Bracklow v Bracklow, [1999] 1 S.C.R. 420, the court noted three bases for entitlement for spousal support: compensatory, contractual, and non-compensatory, that is based on means and need. In balancing the factors to be considered under s. 15.2(4) of the Divorce Act, the court in Bracklow, at paragraph 36 stated:

. . . There is no hard and fast rule. The judge must look at all the factors in the light of the stipulated objectives of support, and exercise his or her discretion in a manner that equitably alleviates the adverse consequences of the marriage breakdown.

[33] The need to consider the means and needs of the parties, as well as compensatory factors, was noted by the Supreme Court of Canada in Hickey v Hickey, [1999] 2 S.C.R. 518.

[34] In Yemchuk, the British Columbia Court of Appeal accepted the Draft Spousal Support Guidelines as “a useful tool to assist judges in assessing the quantum and duration of spousal support,” supplementing the decided authorities (at para. 64). That point has been taken up in subsequent British Columbia Court of Appeal cases, such that if an award is substantially lower or higher than the range set out in the Draft Spousal Support Guidelines, unless there are exceptionable circumstances, the Court of Appeal will intervene: Redpath v. Redpath (2006), 62 B.C.L.R. (4^th) 233; and Stein v. Stein, 2006 BCCA 391.

B. Voluntary Retirement

[35] Within that broad framework for consideration of entitlement, quantum and duration of spousal support, the issue of how to deal with spousal support when the payor spouse retires has been a difficult one. Thus, in Cramer v. Cramer (2000), 186 D.L.R. (4^th) 704 (B.C.C.A.), where the payor spouse sold his business and retired at age 60 and the payee spouse had not yet become self-supporting, the award of spousal support was terminated, the court noting that it was unfair to require the payor spouse to pay maintenance out of his capital assets, which had been divided equally by agreement. On the other hand, in Hooper v. Hooper (2002), 213 D.L.R. (4^th) 548 (Ont. C.A.), where the payor spouse voluntarily took early retirement, that was considered not to be a material change in circumstances, and the application to vary the spousal support award was dismissed. However, when one looks closer at the facts, the apparent conflict in the decisions is not a real one. In the Cramer case, it was known at the time of the separation that the payor spouse hoped to retire early; he had diabetes, and was encouraged by his doctor to retire early; and it was considered that the payee spouse had “unrealistic objectives” in her efforts to become self sufficient. On the other hand, in Hooper, the husband’s professed intention at the time of the order for spousal support was made was not to retire until he was 65. However, he took early retirement at age 57 without advising his former wife of this, or making payments he was required to make under the order. Further, she was totally disabled from working because of a medical condition. It does thus appear that there are not general principles applicable to variation of spousal support on voluntary retirement, that it depends on the individual circumstances of each case.

[36] The leading case with respect to responsibility for spousal support after retirement of the payor spouse is the Supreme Court of Canada decision in Boston v. Boston, [2001] 2 S.C.R. 413. The main issue in that case was that of “double recovery”, whether the payee spouse should be able to both receive the benefit of the division of the pension, as an asset, then again as a source of income from the payee spouse. There is no indication in that case that the payor spouse retired early. Quoting from the headnote:

There is no reason per se that spousal support cannot continue past the retirement date of the pension-holding spouse, but need, ability to pay and double recovery must be considered. It is generally unfair to allow the payee spouse to reap the benefit of the pension both as an asset and then again as a source of income, particularly where the payee spouse receives capital assets which she uses to grow her estate. To avoid double recovery, the court should, where practicable, focus on the portion of the payor’s income and assets which have not been a part of the equalization division when the payee spouse’s continuing need for support is shown. This would include the portion of the payor’s pension earned after separation and not subject to equalization. Double recovery cannot always be avoided, and a pension previously divided can also be viewed as a maintenance asset, where the payor has the ability to pay, where the payee has made a reasonable effort to use equalized assets in an income-producing way and despite this, economic hardship from the marriage or its breakdown persists. Double recovery may also be permitted in spousal support orders/agreements based upon need as opposed to compensation.

[37] Counsel have provided a number of decisions of this court dealing with continued liability for spousal support after early retirement.

[38] The first is Vennels v. Vennels, [1993] B.C.J. No. 378. In that case, after a 20-year marriage, there was an order which included provisions dividing the family assets, including the respondent’s pension, and requiring him to pay monthly spousal support of $1,000 per month. There was no termination date for the maintenance order, and the respondent’s retirement was not anticipated at the time of the order. However, when he was offered early retirement by his employer at age 55, he accepted it. Coultas J. considered first the issue of double dipping, then the issue of voluntary retirement. He referred to cases in Alberta, Saskatchewan and British Columbia. In the course of discussing those cases he stated:

Retirement of a payor under a maintenance order usually results in a significant reduction of income; that is so in this case. Courts are not guided by legislation to enquire into the circumstances of retirement. Courts have no power to compel people to work. However, courts should, in the interests of justice, refuse to consider a reduced income resulting from retirement, to be a material change in circumstances justifying a variation of a support order, where a payor spouse has intentionally put him or herself out of the money in order to frustrate a maintenance order. Any such deliberate self-induced impecuniosity constitutes deceit.

[39] Later he stated:

…When voluntary retirement is advanced as a reason for seeking a reduction in maintenance, a court must consider the circumstances of the retirement carefully and ensure that the payor has not been prompted by deceit to avoid support orders.

[40] In that particular case, he concluded that Mr. Vennels’ retirement was not prompted by an intention to avoid the support order. He concluded that Mrs. Vennels continued to have a need for spousal support, and Mr. Vennels had the means to pay it, but not in the sum as provided in the order. He did note, however, that there was nothing to prevent Mr. Vennels from supplementing his income. He thus reduced the maintenance payable from $1,000 per month to $500 per month.

[41] The next case is Koch v. Koch, [1993] B.C.J. No. 1949. It involved an application to vary a spousal maintenance order on the grounds, first, that the companies in which the husband held an interest had undergone a corporate reorganization and he had disposed of his interests in those companies and, second, that his medical condition had deteriorated. At trial, Vickers J. had held that Mr. Koch did not enjoy good health, but his health problems were not such as to disable him from employment. On the application to vary, Kirkpatrick J. found that he had “ . . . embarked on a carefully engineered program to make it appear that he has considerably less income that he had at the date of trial” (at paragraph 18). She concluded that he had failed to make full disclosure of his means, and thus had not established a credible case for the variation of the order for spousal maintenance. The application was thus dismissed.

[42] In Stier v. Stier, [2004] B.C.J. No. 2343 there was a consent order under which Mr. Stier agreed to pay Mrs. Stier $800 per month spousal support. As in this case, the order included a term entitling Mr. Stier to apply for a review of the maintenance. Macaulay J. held that, as it was a review rather than an application for variation, Mr. Stier did not need to demonstrate any material change. However, he determined that it was necessary for him to determine the effect of both parties’ changed circumstances (paragraph 2).

[43] Mr. Stier was 58 years old, with an income of $69,000 per year. He planned to retire at age 60, although mandatory retirement with his employer was not until age 65. Upon retirement, his income would drop to approximately $30,000 per year. Macaulay J. noted that Mr. Stier enjoyed a significantly higher standard of living than did Mrs. Stier. She was age 63, unemployed, suffered from arthritis, and had minimal assets. Macaulay J. noted that she had a financial need. At paragraph 9 he stated, “Because she does not have the ability to become self sufficient, terminating her entitlement for spousal support will inevitably plunge her into absolute poverty”. He also noted that Mrs. Stier’s long absence from the paid workforce during her marriage was a contributing factor in her failure to become self-sufficient following the divorce (at paragraph 34). At paragraph 44 he stated:

I also find that the defendant benefited, and continues to benefit, from the actual division of responsibilities while the parties were married. First he received the benefit of Mrs. Stier performing domestic labour, child care and other related family duties. Second, Mr. Stier had nineteen years to focus almost entirely on establishing himself in the work force. If the defendant had not worked during those years, I doubt that he would be earning income at his current level. Undoubtedly, this income level reflects his cumulative experience in the airline industry, which extends back to the time of the marriage.

[44] In the result, he concluded that there was “no automatic cut-off date,” and Mr. Stier’s application to terminate his obligation to pay spousal support was dismissed.

[45] On the other hand in Marsh v. Marsh, 2005 BCSC 951 (affirmed at 2006 BCCA 144), Ralph J. found that Mr. Marsh did not retire voluntarily, that his retirement was contemplated by the parties, and that he was not seeking to frustrate the spousal support order. After quoting from the Vennels decision, he ordered that spousal support be continued, but be reconsidered after a year.

[46] In Fehr v. Fehr, 2006 BCSC 1440, Ross J. considered an application by Mr. Fehr to vary an order by terminating his obligation to pay spousal support. The corollary relief in the order was by consent, with no provision for review of spousal support. At the time of the order, Ms. Fehr was not working and had no plans to seek employment, and it was contemplated that Mr. Fehr would likely retire from his employment at age 60. When he was age 56, his employer went through a restructuring, he lost his position, and accepted a payout of a further year’s salary continuance. He did not seek alternative employment. He alleged that he had continuing medical issues, but Ross J. concluded that there was insufficient evidence to determine that he was not able to work (at paragraph 11). She concluded that while his retirement was not voluntary in the sense that he chose to leave his employment, that he did have capacity to earn an income, but that he had voluntarily chosen to take himself out of the workforce without regard to his obligations to support Ms. Fehr. She noted that “his present income does not represent his capacity”. She thus concluded that Mr. Fehr had not met the threshold of establishing a material change in circumstances and dismissed his application for termination of spousal support.

[47] Similar findings that voluntary retirement of a person able to continue to earn an income did not amount to a material change of circumstances were made in Schofield v. Schofield, 2006 BCSC 453 at paragraph 22, and Bullock v. Bullock, 2007 BCSC 318 at paragraph 7.

IV Application to the Facts of this Case

[48] In this case, as noted, there was a provision for review in the order providing for the spousal support, and it is thus not necessary for Mr. Gajdzik to show a material change in circumstances. It is thus necessary to consider the matter in light of the factors set out in s. 15.2(4) of the Divorce Act, and the objectives set out in (6).

[49] This marriage was a lengthy one, more than 25 years. It was a so-called “traditional marriage,” with Mr. Gajdzik earning the income and Ms. Gajdzik providing services as a homemaker. I find that was by agreement of the parties, either express or implied. Mr. Gajdzik benefited, and continues to benefit, from that division of responsibilities. First, he received the benefits of Ms. Gajdzik providing domestic services, child care and other related family services during the 25 years of the marriage. Second, he had that period to establish himself in the work force, while Ms. Gajdzik lost any opportunity she may have had to establish herself in the work force. Ms. Gajdzik thus has a compensatory claim which continues to the present date and will continue in the future. That claim has not been satisfied by the payment of spousal support for 7 1/2 years. There must be a continued recognition of the economic advantages to Mr. Gajdzik arising from the marriage, and of the disadvantages to Ms. Gajdzik, both from the marriage and its breakdown.

[50] In this case, emphasis has been put by Mr. Gajdzik on Ms. Gajdzik’s obligation to become self-sufficient, in view of the fact that she is still not employed 7 1/2 years after the separation. However, as noted in Moge, Leskun, Story and Rogers, the failure to achieve self sufficiency is not a bar to a continued claim for maintenance, but rather is one factor to be considered with respect to spousal support.

[51] On the other hand, I find that Ms. Gajdzik has not taken reasonable steps to obtain even part-time employment. There is no doubt it will be difficult for her to enter the workplace, and that she has had stresses since the separation, including the death of her mother, the need to find a new home after 25 years in the former family home, and the need to provide assistance to her children, particularly Dustin following his injuries. I note that “financial consequences arising from the care of any child of the marriage over and above any obligation for the support of a child of the marriage” is one of the objectives of spousal support, set out in s. 15.2(6)(b) of the Divorce Act. Without specifically deciding the issue, it may be that neither child is a “child of the marriage,” as defined in s. 2 of the Divorce Act, any longer. Both are adults, Dustin had at one point withdrawn from his parents’ charge and was living independently, and Katrina does have some income. However, Ms. Gajdzik is acting as a loving mother in providing support to her children. That is a factor to be taken into account, even though it does not appear to be acknowledged by Mr. Gajdzik. However, I am not satisfied that either child cannot contribute more financially to the household than they are at present. The evidence is that Katrina earns something in excess of $1,000 per month, but pays only for expenses in the amount of approximately $230 per month, plus purchasing some of her food. The evidence about Dustin’s income is unclear. If his injuries occurred while at work, and he is disabled as a result of those injuries, it would seem that he should qualify for workers’ compensation benefits or employment insurance disability benefits. Even if he does not qualify for either of those, he should qualify for social assistance disability benefits. I am thus not satisfied that both children cannot make more contributions to the household, so that they are not, at the very least, financial drains on Ms. Gajdzik in her restricted financial circumstances.

[52] I also do not accept that Ms. Gajdzik’s care of Dustin is such that she needs to be available on a full-time basis. Although it will undoubtedly be difficult for her to get back into the workforce, I consider that she should be able to obtain some employment, even if only on a part-time basis, at minimum wage. I thus consider it appropriate to attribute an income to her, for the purpose of this application, based on 20 hours per week at minimum wage, of approximately $800 per month. In addition, she has the R.R.S.P.s with a value of $111,130, including $80,518 received from her share of Mr. Gajdzik’s I.W.A. pension. It is reasonable to attribute some income to her from that. I note that she could have elected to take a monthly payment of $520, rather than the lump sum. She would then have had approximately $30,000, from which she could also expect to earn some income. It is also reasonable that she draw some capital from those funds, the stated purpose of an R.R.S.P. being to provide funds in retirement. I thus attribute $700 per month as the amount reasonably available from that fund. I thus attribute income to Ms. Gajdzik in the amount of $1,500 per month.

[53] Even with that deemed income, I find that Ms. Gajdzik does have a need for continued spousal support. On her Financial Statement she shows expenses of $38,451, which does not appear unreasonable (although there is an item of $630 a month for house repairs which is not explained, except for a note “roof”. Even if the roof needs to be replaced, that is not something which should continue on an indefinite basis.)

[54] With respect to Mr. Gajdzik, the first thing to be considered is his motivation for retirement, and whether it is reasonable in light of his ongoing obligation to Ms. Gajdzik. As pointed out in such cases as Vennels, when voluntary retirement is advanced as a reason to terminate the spousal support, the circumstances must be considered carefully to ensure that the application has not been prompted by a desire to avoid the support order. I do not consider that to be Mr. Gajdzik’s sole reason for retiring in this case, although I do consider it as a factor. As counsel for Ms. Gajdzik pointed out, there was no mention of ill health or retirement in Mr. Gajdzik’s initial affidavit sworn October 10, 2007, only that he had been paying spousal support for over 7 years, while Ms. Gajdzik had not obtained employment. Even in his affidavit sworn December 17, 2007, in which he indicated, in paragraph 15, that his health would not tolerate his work anymore, that is tied to the statement, “I do not feel that I should be paying support to the plaintiff any longer. The plaintiff has had 7 1/2 years to get a job and better her education and has chosen not to”. On the other hand, Ms. Gajdzik was clearly aware of Mr. Gajdzik’s desire to retire soon. In fact, the first reference to his retirement is in paragraph 38 of her affidavit sworn December 11, 2007. I also accept that Mr. Gajdzik does believe that his health will not tolerate the heavy physical work, although there is, at present, no medical evidence confirming that.

[55] Counsel for Ms. Gajdzik submitted that the normal age for retirement is 65. In fact, he indicated the willingness of Ms. Gajdzik to concede that spousal maintenance should not be paid after that time. However, I do not know if it can properly be said that age 65 is the normal age for retirement for jobs involving heavy physical labour. I do not consider it unreasonable for Mr. Gajdzik to want to retire from that work after almost 40 years in it. However, as in the Fehr case, I find that even if Mr. Gajdzik does retire, he will have a continuing capacity to earn income. With his skills and experience as a heavy-duty mechanic, he will likely have considerably more ability to determine the number of hours he wishes to work than will Ms. Gajdzik as an unskilled worker in her 50s. I thus consider it reasonable to attribute to Mr. Gajdzik an ability to earn income of approximately one-half the amount he has been earning before retirement, or $30,000 per annum after retirement. That is in addition to his pension income of $1,375 per month, or $16,500 per annum. I thus consider it likely that he will have the capacity, even after retirement, to receive income of approximately $45,000 per annum.

[56] I thus find that Mr. Gajdzik has the means, and Ms. Gajdzik has the need, justifying a continuation of the order for spousal support. Ms. Gajdzik also has an ongoing claim for such support on a compensatory basis. I thus find entitlement to spousal support has been established.

[57] As to quantum, I note the comments of Prowse J.A. in Yemchuk that after a long marriage such as this one, in which each party has contributed his or her various resources, both economic and non-economic, to the relationship, an equality of standard of living may well be a just result. In that regard, I note that, since the order was made, Mr. Gajdzik’s income, even after payment of the spousal support to Ms. Gajdzik, has been considerably higher than that of Ms. Gajdzik. That is reflected in the fact that he has been able to pay down his mortgage, while Ms. Gajdzik has incurred further debts.

[58] Attributing an income of $45,000 to Mr. Gajdzik, and $15,000 to Ms. Gajdzik, the difference is $30,000. The amount of maintenance required to equalize their incomes (which I consider would provide rough equivalence in their standards of living) is $15,000 per annum, or $1,250 per month. I consider it in keeping with the objectives of spousal support, including Ms. Gajdzik’s ongoing compensatory claim, and the parties’ respective means and needs, that spousal support be paid in that amount. In the result, then, the amount of maintenance payable under paragraph 17 of the order of May 15^th, 2003, will be reduced from $1,500 to $1,250.

[59] As this award is premised on Mr. Gajdzik being physically able to work part-time as a heavy duty mechanic following his retirement, he will have liberty to apply to vary this order in the event the medical evidence establishes that he is disabled from such employment. If the parties are unable to reach agreement, this order will also be subject to review upon Mr. Gajdzik reaching the age of 65 years.

[60] As neither party has been entirely successful, there will be no order as to costs.

____________________

Mr. Justice A.F. Wilson

Citation:	*Gajdzik v. Gajdzik,*
	2008 BCSC 160