Court File and Parties
CITATION: Deslandes v. Chen, 2017 ONSC 941
DIVISIONAL COURT FILE NO.: DC 16-715
DATE: 2017-02-07
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, STEWART and SPIES JJ.
BETWEEN:
MARCIA DESLANDES
Applicant/Respondent
– and –
ORVIN GARFIELD CHEN
Respondent/Appellant
Michael David Lannan, for the Applicant/Respondent, Marcia Deslandes
H. Keith Juriansz, for the Respondent/Appellant, Orvin Garfield Chen
HEARD at Hamilton: February 7, 2017
Oral Reasons for Judgment
SACHS, J. (Orally)
[1] On this appeal the Appellant submits that the trial judge made three errors:
She made palpable and overriding errors of fact in arriving at her conclusion as to the quantum of spousal support;
She erred in law and made palpable and overriding errors of fact in arriving at her decision with respect to the duration of support;
She erred in her costs award.
QUANTUM OF SUPPORT
[2] With respect to the quantum of support, the Appellant argues that the trial judge erred in failing to impute an income to the Respondent of $42,000 per year. According to the Appellant, the evidence before the trial judge was such that she should have calculated the Respondent’s income potential not only on the basis of fulltime employment at minimum wage, but on the basis of full time employment at minimum wage, plus commissions, plus tips. In support of this argument, the Appellant points to a pay slip that showed that over the five month period, from January to May of 2015, the Appellant had a part-time job (14.5 hours per week), where she did earn commissions and tips on top of her hourly minimum wage income.
[3] In rejecting the Appellant’s argument on this point, the trial judge states as follows at paragraph 30 to 31 of her decision:
[30] Respondent’s counsel asks me to impute income to Ms. Deslandes of $42,000 saying that she is purposely under employed. His figures stem from her current income of 14.5 hours per week, ratcheted up to the fulltime hours and factoring in tips of 20 percent (which Ms. Deslandes said she did not know she was supposed to declare. I find this position incredible).
[31] I accept counsel’s reasoning that a spouse is expected to do their utmost to become self-sufficient. I have already stated I am not satisfied on the evidence before me that the applicant has established an inability on her part to work due to illness or medical condition. That being said, her income before the relationship began and at her very highest in 2003 never exceeded $25,000. $42,000 is an unrealistic income in all the circumstances. I would impute income to her that mirrors fulltime earnings at minimum wage and is consistent with her history throughout. I do not find the $42,000 sum to be reasonable. At $11.25 an hour, if the applicant worked 40 hours a week, she could earn $23,400.00. This is the income I shall impute to her.
[4] Thus, the trial judge was aware of and adverted to the evidence that the Appellant relied on in support of his position on the quantum of support. However, she found, based on the totality of the evidence before her, that it would be unreasonable to attribute a full time income to the Appellant based on the assumption that she could earn the same income that she earned on a part time basis on a full time basis. This was a conclusion that the trial judge was entitled to draw, based on the evidence before her of the Appellant’s income history. It does not disclose an error in law or a palpable and overriding error of fact.
DURATION OF SUPPORT
[5] The Appellant submits that the trial judge erred in finding that support should last for five years commencing on February 1st, 2016. According to the Appellant, this finding ignored the fact that after the separation the Respondent continued to live with the Appellant for another year and received medical benefits for a period of time. It also ignored the fact that the Respondent made no claim for interim support pending trial. In addition, the Appellant submits that the trial judge erred in law in failing to provide for a reducing amount of support over the five year period.
[6] In arriving at the five year period, the trial judge considered that the parties had cohabited for 10 years and that for all of that period of time, the Appellant had earned considerably more than the Respondent. She found that this established a pattern of economic dependency.
[7] The trial judge then considered the SSAG and correctly pointed out that these guidelines provide for a duration of 6-12 years based upon a period of cohabitation of 12 years. Thus, five years duration for 10 years of cohabitation is clearly consistent with the lower end of the SSAG.
[8] In choosing a commencement date of February 1st, 2016, the trial judge found that the Appellant had not paid the Respondent any spousal support prior to trial. The fact that the Respondent lived with the Appellant post separation or that the Appellant received some medical benefits (which the trial judge adverted to in her reasons), does not change the reality that the Respondent did not receive any spousal support from the Appellant prior to trial.
[9] Further, absent a finding that the Respondent had become more self-sufficient prior to trial, the fact that the Respondent somehow survived until trial without spousal support is not something that would relieve the Appellant from his obligation to pay the Respondent spousal support.
[10] Finally, the Appellant could point to no case to support his argument that the law requires that if support is ordered for a five-year period, it should be reduced over that period.
[11] In conclusion, the trial judge’s reasons on the issue of the duration of spousal support, disclose no error in law or palpable and overriding error of fact.
COSTS
[12] The trial judge awarded the Respondent less than half of her partial indemnity costs ($7500). She did so on the basis that, in her view, the support issue was the issue that drove the litigation between the parties. As the judge who heard the trial, her finding with respect to what the major issue was is entitled to deference.
CONCLUSION
[13] For these reasons, the appeal is dismissed.
[14] As the successful party, the Respondent is entitled to her costs of this appeal. Having reviewed the material filed by the Respondent (which was filed late), we fix those costs at $3000 all inclusive.
Sachs J.
I agree
Stewart J.
I agree
Spies J.
Date of Reasons for Judgment: February 7, 2017
Date of Release: February 9, 2017
CITATION: Deslandes v. Chen, 2017 ONSC 941
DIVISIONAL COURT FILE NO.: DC 16-715
DATE: 2017-02-07
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, STEWART and SPIES JJ.
BETWEEN:
MARCIA DESLANDES
Applicant/Respondent
– and –
ORVIN GARFIELD CHEN
Respondent/Appellant
ORAL REASONS FOR JUDGMENT
SACHS, J.
Date of Reasons for Judgment: February 7, 2017
Date of Release: February 9, 2017