nov. 21. 2020

Court Allows 68-Year-Old to Retire Despite Spousal Support Obligation

Angulo v. Angulo, 2019 ONSC 1456 (CanLII)

Mr. Angulo brought an application to terminate the payment of spousal support emanating from an order dated June 11, 2004 in the amount of $1,400.00 per month. Angulo v. Angulo 2019 ONSC 1456. His ex-wife brought a cross-application seeking document production from 2005 to 2018, retroactive spousal support, and an order that Mr. Angulo’s second wife make full financial disclosure of her income and assets. She also sought the appointment of a chartered business valuator to determine the value of the increase of her former husband’s RRSP since the date of separation, and asked for an increase in spousal support based on his alleged “hidden income”.

The parties were married for 28 years, separating in 2000. Galo had remarried and had two children, ages 9 and 12. His ex-wife remained unmarried. Galo was 68 at the time he brought his termination application. His ex-wife was 76, having retired at the age of 65.

The parties signed a separation agreement in 2002 whereby they divided their family property equally between them. At the time of the agreement, Galo earned $140,000 per annum as a self-employed computer programmer. Ms. Galo earned approximately $22,000 a year, working in a clerical position. Galo agreed to pay spousal support of $2,700 per month with an annual cost of living increase.

Shortly after their separation, Galo’s contract position was terminated. He remained unemployed for a year and took additional computer courses to upgrade his skills, but continued to pay spousal support from his savings. When he found new employment with CIBC Bank his salary was reduced to $73,000 per annum, but he acquired pension benefits.

In June of 2004 the parties entered into a consent order varying his payment to $1,400.00 a month based on his decreased income.

The separation agreement also provided that “Obligations rising out of the remarriage of the Husband or the Wife are to be taken into account in determining whether there has been a material change in circumstances.”

In addition, paragraph 20 of the agreement read:

“Further the parties agree that the support and property division of this agreement are inextricably intertwined and constitute and full and final financial settlement. More particularly, the husband and the wife acknowledge that he and she may be called upon during the rest of their lives to use, either wholly or in part, their capital for his or her own support and they agree to do so without recourse to the other.”

Galo worked at CIBC for almost 15 years, retiring in May 2018 at the age of 68. He deposed that the responsibilities of his job became too physically and mentally demanding of him. He was often required to work 18 hours a day and take phone calls and requests at all hours. As well, his computer skills from the 1980’s were becoming obsolete and the computer systems were being redesigned using new technology and skills that he did not possess. He deposed that if he wished to keep up with the bank’s requirements, he would have to upgrade his skills at his own expense, and still not be guaranteed a position because of the competition from younger candidates.

His medical problems included sciatica, a torn ACL, degenerative disc disease, prostate issues, and high blood pressure. His doctor’s letter confirmed his ailments and indicated the Mr. Angulo relied on pain killers. The doctor did not state that his retirement was due to medical problems. He was not asked to retire, neither was he fired, but he said that his retirement was “obvious”.

Galo’s retirement income was approximately $32,500.00, comprised of his CIBC pension and CPP and OAS. His second wife’s income was $125,000, plus a discretionary bonus. His former wife’s retirement income was $37,500, consisting of spousal support, RRIF income, and CPP and OAS. The parties’ respective net worth’s at the date of the hearing were similar. Mr. Angulo had assets valued at $877,000, while his ex had property valued at $713,000.

With respect to Ms. Angulo’s request for extensive financial documents, including from her ex-husband’s second wife, the court held that all that was required by the second Mrs. Angulo was income and expense information which had been produced. With respect to document production dating back to 2005, Ms. Angulo argued that the cost of living clause had never been implemented, hence she was seeking full particulars of her ex-husband’s historical income and retroactive support of $82,000 based on alleged “hidden income”, “hidden assets”, and the absence of additional support based on the COLA clause.

The court declined to make the orders sought by Ms. Angulo and also dismissed her application for an expert to evaluate her ex-husband’s RRSP. The court noted that the order of June 2004 did not call for an annual review of spousal support, and neither did Ms. Angulo apply for an increase in support, until 2019 when she raised it in the context of her ex-husband’s termination application. Mr. Justice Horkins did not believe Ms. Angulo’s suggestion that she was afraid of her husband, and hence did not pursue additional support or disclosure over the years. He remarked that the parties shared a pet dog for eight years, with consistent interaction between the former spouses, with no evidence of abuse or intimidation.

The court determined that Mr. Angulo's retirement was justified and reasonable and ordered that support be terminated on April 1, 2019, four months after the date of the judgment and one year after Galo’s retirement.