BACKGROUND

The Applicant, Dawn Marie Blainey ("Applicant"), and the Respondent, Kevin Ross Blainey ("Respondent"), were married on June 24, 1989, and separated on June 30, 2007. They have two sons, both of whom are now independent adults and reside with the Respondent.

In 2010, the Applicant was diagnosed with breast cancer. She underwent a lumpectomy and completed treatment in 2011. The cancer has not recurred.

Following their separation, the parties engaged in litigation and negotiation, resulting in a separation agreement, arbitral awards, and several final court orders. One of these final orders, a consent order (the “Final Order”), mandated a review of spousal support on a “fresh look” basis, set for the earlier of their youngest son completing one post-secondary degree or January 13, 2021.

In 2022, the Respondent filed a motion to terminate his obligation to pay spousal support, arguing that the Applicant is unable to prove entitlement. The Applicant opposed this motion, requesting that the Final Order be varied to postpone the spousal support review for 5 years from the resolution of this motion. She argued that she had sacrificed career advancement opportunities during the marriage to care for their children and support the Respondent's career. Additionally, she claimed that the Respondent's violence during the marriage and her cancer diagnosis led to her developing post-traumatic stress disorder (PTSD), which rendered her unable to work.

The Respondent argued that the Applicant had not demonstrated a material change in circumstances to justify varying the Final Order. While he did not contest the PTSD diagnosis, he contended that the evidence for it should be given little weight and that there was no proof that her PTSD had impacted her ability to work.

ISSUES

1. Should the Final Order be varied to delay the review of spousal support?
2. Should the Respondent’s spousal support obligation be terminated?

ANALYSIS

Should the Final Order be varied to delay the review of spousal support?

Under Section 17 of the Divorce Act, a court may retroactively or prospectively vary a final order if there has been a material change in circumstances. In spousal support cases, such a change pertains to the condition, means, needs, or other circumstances of either spouse since the issuance of the order sought to be varied. The party seeking the variation must prove that the material change in circumstances would likely have resulted in a different order being made.

In this case, the court determined that the Applicant did not meet the burden of proving a material change in circumstances that would justify varying the Final Order. Although the Applicant was diagnosed with PTSD in 2023, the court found that the grounds for this diagnosis were, or should have been, known to her when the Final Order was made in January 2018. Furthermore, while the court acknowledged the alleged abuse by the Respondent and the potential impact of trauma on cognitive functioning, the Applicant did not claim that her trauma affected her cognitive abilities, and she provided no evidence to support such claims. As a result, the court denied the request to delay the spousal support review.

Should the Respondent’s spousal support obligation be terminated?

Given that the Final Order allowed for a “fresh look” review of spousal support, the Respondent argued that the burden was on the Applicant to prove her continued entitlement to spousal support. He further argued that she had not met this burden and had no entitlement to spousal support beyond the date of this motion.

The Applicant maintained that the couple’s pre-marital cohabitation, her sacrifices during the marriage, and her inability to work due to PTSD justified the continuation of spousal support at the amount set in the Final Order. The court, however, ruled that the Respondent’s obligation to pay spousal support should terminate effective the date he filed this motion to change as the Applicant failed to prove her entitlement to support beyond that date.

The court outlined the objectives of its inquiry:

1. Recognition of any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
2. Apportionment between the spouses of any financial consequences arising from the care of any child of the marriage;
3. Relief against any economic hardship arising from the breakdown of the marriage; and
4. Promotion of economic self-sufficiency, as practicable.

The court noted that while the Applicant is an intelligent and diligent individual who has succeeded in both business and community work, she has not achieved economic self-sufficiency more than 17 years after separation. The court attributed this to the Applicant’s choice to live beyond her means and engage in financial mismanagement.

Moreover, the court rejected the Applicant’s claim that her PTSD hindered her ability to achieve financial self-sufficiency, as it was not substantiated by the evidence. Despite calling two expert witnesses, neither provided evidence that the PTSD had adversely impacted her ability to work or achieve financial independence.

Thus, the court held that the Applicant was not entitled to spousal support beyond the date of this motion to change, and the objectives of the Divorce Act would be best served by terminating the Respondent’s spousal support obligation from that date.