DATE: 20030328
DOCKET: C37585
COURT OF APPEAL FOR ONTARIO
ABELLA, MacPHERSON AND ARMSTRONG JJ.A.
B E T W E E N :
SUZANNE ALLAIRE
Respondent
- and -
NORMAND ALLAIRE
Appellant
Tom Bastedo and Diana Solomon, for the respondent
Stephen Grant and Sarah Maywood, for the appellant
Heard: March 13, 2003
On appeal from the judgment of Backhouse J. dated December 21, 2001.
BY THE COURT:
[1] This appeal is about the propriety of an indeterminate order for spousal support in circumstances where the spouse receiving the support, while suffering economic disadvantage arising from the marriage, is nonetheless alleged to be “self-sufficient” within the meaning of the Divorce Act, R.S.C. 1985, c. 3.
[2] The appellant, Normand Allaire, and the respondent, Suzanne Allaire, married in Cornwall in July 1972. There are three children of the marriage: Justin, aged 20, Stephanie, aged 18, and Christiane, aged 15. The parties separated in 1996 but both continued to reside in the matrimonial home until it was sold in October 1997. The petition for divorce was served by Suzanne Allaire on August 21, 1999.
[3] On the eve of trial, the parties were able to resolve the amount of the equalization payment and custody of the youngest of their three children, Christiane, who lives with her mother. The two older children live with their father.
[4] When the parties were married, Mr. Allaire was employed as a funeral home director and his wife was employed as a lab technologist. Neither had a university degree. In 1974, the parties moved from Cornwall to Toronto so that Mr. Allaire could pursue a Bachelor of Science degree at the University of Toronto. He received his Bachelor of Science degree in 1978 and a Masters degree in Health Administration in 1980.
[5] Upon completing his Masters degree, the appellant commenced a career as a hospital administrator. At the time of trial, he was employed as the President and Chief Executive Officer of the Runnymede Chronic Care Hospital. His income in this position between 1999 and 2001 varied from $207,721 in 1999 to $176,689 in 2001.
[6] Ms. Allaire testified that she too had hoped to pursue a Bachelor of Science degree at the beginning of the marriage, but instead agreed to work full time when concern arose about the reduced standard of living that would result from neither spouse earning a full time income. Her evidence was that she was unhappy with this arrangement, but accepted it nevertheless.
[7] As a result of this arrangement, Ms. Allaire was the primary source of income during her husband’s six years of full time university studies. She was first employed at Scarborough General Hospital and, in 1975, started working with the Michener Institute, where she has been employed ever since. She has also taught evening and correspondence courses during this period.
[8] By the time Mr. Allaire concluded his Masters degree and began earning a full time income, Ms. Allaire had already given birth to their first child, and the parties decided to continue to build a family. As a result, Ms. Allaire never did commence full time university studies during the marriage, although she completed four university courses while the children were young and continued to work full time. She also completed a diploma program as a requirement of her employment at the Michener Institute.
[9] In 1999, Ms. Allaire commenced studies toward a Masters in a health science management program, which she expects to complete in June 2003. Her employer has provided her with a combination of unpaid leave and sabbatical throughout this program. Prior to commencing these studies, she had attained the position of coordinator of her programme at the Michener Institute. Her employer testified that Ms. Allaire risked demotion from the position of coordinator if she did not obtain a university degree. Her income as coordinator has ranged from $52,544 to $61,687 during the years between 1998 and 2002, and there is an expectation that her income will increase to $68,793 when she completes her Masters degree.
[10] Ms. Allaire received an equalization payment plus one half of the sale proceeds from the matrimonial home, approximating $243,000. She used some of her proceeds to purchase a car, for legal expenses and for living expenses. With the balance of the proceeds, she purchased a new home. Her mortgage was $32,000 at the time of trial.
[11] Mr. Allaire received approximately $95,000 from the sale of the matrimonial home as well as two bank accounts, two cars, a boat, his pension and RRSP assets. He purchased a home prior to the sale of the matrimonial home which he financed with a mortgage that had been reduced to $36,000 at the time of trial. By the time of trial, while the parties’ mortgages were approximately the same amount, Ms. Allaire had eroded her savings and had a debt of $33,000 on a line of credit. There is no evidence that Mr. Allaire had any debt aside from his mortgage.
[12] The wife’s application for spousal support was commenced in August 1999. No spousal support was paid since separation. No child support was paid prior to March of 2000 when Mr. Allaire was ordered to make interim payments in the monthly amount of $377 for the support of the youngest daughter.
The Trial
[13] For the purposes of determining child support, the trial judge fixed the income of Mr. Allaire at $189,353 after averaging his last three years of income in accordance with s. 17(1) of the Federal Child Support Guidelines, SOR/97-175. The trial judge fixed Ms. Allaire’s income at $54,674. On the basis of these figures, the trial judge ordered Ms. Allaire to pay her husband $750 monthly for the support of Justin and Stephanie, and ordered Mr. Allaire to pay $1,357 to his wife for the support of Christiane, resulting in a net child support payment to Ms. Allaire of $607.
[14] Ms. Allaire concedes that the trial judge erred in failing to include in her income a stipend of $2,019 and bonus of $1,000 for the purpose of calculating child support. As a result, her child support obligation for the two older children should be adjusted to $795 per month, resulting in a monthly payment to her of $572.
[15] The trial judge ordered Mr. Allaire to pay his wife $2,500 monthly in compensatory spousal support, based on her projected income of $68,000. The trial judge based this award on the economic hardship faced by the respondent as a result of the breakdown of the marriage, as well as the adverse impact of the marriage on her career and earning capacity. On the latter point, the trial judge found that “[t]he disparity in the economic advantages received by the spouses in the marriage is reflected in the differences in their education and respective incomes” and that Ms. Allaire “…did not have the same opportunities to enhance her qualifications as her husband did.” The trial judge declined to place a time limit on the spousal support award.
[16] The trial judge also ordered Mr. Allaire to pay $35,000 for retroactive spousal and child support.
Issues
[17] The appellant raised three grounds of appeal. Firstly, Mr. Allaire quarrels with the quantum of the spousal support order, as well as the fact that no termination date was fixed by the trial judge. Secondly, while he concedes that the trial judge had jurisdiction to order lump sum retroactive child and spousal support, Mr. Allaire takes issue with the quantum of the award. Thirdly, he argued that the trial judge erred in averaging his income over the last three years, attributing vacation pay he says he did not receive.
Spousal Support
[18] Mr. Allaire submits that the trial judge erred in finding that the breakdown of the marriage resulted in economic disadvantage to the wife, arguing that Ms. Allaire is economically self-sufficient and that the domestic arrangements in place during the marriage enhanced her career and economic prospects, citing Ms. Allaire’s thirty years of tenure with her employer and her promotion to coordinator of her programme. He also points to the fact that both parties were able to advance their careers because their combined full time income of $250,000 permitted them to afford childcare. This, he states, means that theirs was not a traditional marriage.
[19] These submissions do not accord with the findings of fact made by the trial judge, and rest on a very narrow interpretation of what constitutes a traditional marriage. The trial judge found that Ms. Allaire suffered economic disadvantage as a result of the marriage. The record amply supports these findings of fact. She postponed her ambitions early in the marriage in order to finance the appellant’s six years of university studies. The parties’ desire to continue to build a family after the appellant had concluded his university studies further delayed her ability to earn a university degree. As a result of these arrangements, she was unable to pursue career options that required a university degree. The fact that she worked outside the home does not make her reduced economic choices any less “traditional”. Mr. Allaire, on the other hand, has enjoyed significant economic advantages as a result of his ability to earn university degrees early in the marriage.
[20] We see no error in the trial judge’s award of compensatory spousal support in the amount of $2,500 monthly. It is unproductive to analyze the facts based on a concept of “traditionalism”. It is more appropriate to look at what choices the spouses made and what the economic consequences of those choices were. It is clear from the trial judge’s reasons that the award is designed not only to redress the economic consequences of the breakdown of the marriage, but also to compensate Ms. Allaire for the likely permanent economic results of having to postpone her post-secondary education. It is an amount that properly seeks to adjust the economic disparity between the two households based on the former joint standard of living.
[21] Mr. Allaire’s submits that any disadvantages flowing from the marriage must defer to the fact that Ms. Allaire now earns a reasonable income that makes her “self-sufficient”. This ignores the reality that self-sufficiency is not a free-standing concept. It must be seen in the context of the standard of living previously enjoyed by the parties. Where, as here, the economic consequences of the marital relationship were to permanently reduce Ms. Allaire’s income, it is inappropriate to consider Ms. Allaire’s annual income of $68,000 as “sufficient” without considering whether Mr. Allaire can financially assist her to live a lifestyle closer to what they shared as a couple.
[22] For the same reason, the trial judge did not err in failing to apply a time limit to the spousal support award. As the Supreme Court of Canada stated in Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 S.C.R. 420 at para. 57, a result of the need to balance the objectives set out in the Divorce Act is that there is no obvious or inevitable cut-off date for a spousal support order. It is recognized that in situations such as this, “where a former spouse will continue to suffer the economic disadvantages of the marriage and its dissolution while the other spouse reaps its economic advantages”, long-term compensatory support is appropriate regardless of the self-sufficiency of the disadvantaged spouse: Moge v. Moge (1992), 1992 25 (SCC), 43 R.F.L. 345 (S.C.C.), at 383. Where, as here, the award is crafted to compensate Ms. Allaire for the long-term impact of the marriage on her career advancement and earning capacity, the trial judge was within her discretion in declining to limit her support to a defined period.
[23] Mr. Allaire also submits that the trial judge erred in averaging his income for the years 1999 to 2001 (inclusive), arriving at a figure of $189,353 for the purpose of calculating his child support obligation. He submits that the trial judge erroneously included his non-recurring pay in lieu of vacation that appeared in his 1999 income and that the more appropriate figure is $176,689. We did not call on the respondent’s counsel to respond to this submission. We saw no error in this calculation and little merit in the husband’s submission that the amount of support should be based only on the last year, when he did not take the usual vacation pay. The trial judge was entitled, on the evidence, to conclude that as Chief Executive Officer, the husband was in a position to determine whether he would take vacation pay in lieu of holidays, his usual practice prior to his wife’s filing her petition for divorce.
[24] Mr. Allaire concedes that the trial judge had jurisdiction to order a lump sum payment for retroactive spousal and child support, but takes issue with the lump sum amount of $35, 000. The parties had ceased living under the same roof in October 1997 and the petition for divorce, which included an application for interim spousal support, was served in August 1999. The appellant paid no spousal support to the respondent from the date he left the matrimonial home until the date of trial, and as a result, as previously noted, the respondent has incurred a debt of $33,000 on a line of credit since the parties’ separated in order to cover legal costs and living expenses.
[25] Based on an award of $2,500 monthly in spousal support, Ms. Allaire was theoretically entitled to $127,500 in retroactive support from the date her husband left the matrimonial home to the time of trial. Rather than award this amount, the trial judge ordered the more modest sum of $35,000, which compensates the appellant for the debt she incurred for her expenses up to the trial. There is no basis for interfering with this amount of retroactive support.
[26] Except for the adjustment to child support, we would dismiss the appeal. In accordance with their request, the parties will have the opportunity to exchange and file written submissions on costs by April 15, 2003.
RELEASED: “MAR 28 2003” “R.S. Abella J.A.”
“RSA” “J. C. MacPherson J.A.”
“Robert P. Armstrong J.A.”