COURT FILE No.: Brampton 821/11
DATE: 2012·02·08
Citation: Alves v. Caceres, 2012 ONCJ 95
ONTARIO COURT OF JUSTICE
BETWEEN:
EDUARDO ALVES
Applicant
— AND —
ANGIE CACERES
Respondent
Before Justice J.C. Baldock
Heard on February 2, 2012
Ruling on Motion released on February 8, 2012
Robert B. Lawson ................................................................................................... for the applicant
Rachel White ...................................................................................................... for the respondent
BALDOCK, J.:
[1] The respondent mother has brought this motion for temporary spousal support. The undisputed facts are as follows.
[2] The parties commenced cohabitation in 2001 and separated in November 2010.
[3] The applicant father states that there was a one year separation during that period, which the respondent mother does not acknowledge.
[4] The respondent is 38 years of age.
[5] The parties have one child, Tiago Xavier Alves born March 25, 2007 (now almost five years of age).
[6] The child resides primarily with the respondent mother. He attends kindergarten from approximately 8:45 a.m. to 3:15 p.m. on Tuesdays and Thursdays and alternate Fridays.
[7] The mother did not complete high school.
[8] The mother has a son from a previous relationship, who is attending college in Guelph.
[9] The mother is herself enrolled in a programme to upgrade her education to attain high school equivalency, at Conestoga College. She attends daily from 9:00 a.m. to 2:30 p.m. This course ends in June 2012. Her plan is to commence a two year diploma course in health and fitness in the fall of 2012.
[10] Prior to the birth of Tiago the mother worked as an exotic dancer and as such was able to contribute significantly to the household finances. Following the birth, she did not wish to pursue that lifestyle and found work in retail. In 2008 she worked part time and earned $9,817.00.
[11] In 2009 she worked full time and was made store manager earning $45,426.00. She found herself unable to cope with the stress of the managerial position and quit in April of 2010 and remained at home to care for Tiago.
[12] In November 2010, she took an extended trip with the child to Peru, returning in May 2011. She has since been in receipt of social assistance from Ontario Works which tops up the income she receives from child support.
[13] The applicant father works in construction. He is usually laid off for a period of time each year, but supplements Employment Insurance with occasional cash jobs, as a mover. His income has remained fairly stable in the $54,000.00 - $59,000.00 range over the last few years.
The position of each party
[14] The respondent mother maintains that she is unable to cope with the stress associated with a managerial position due to her issues with anxiety, panic attacks and agoraphobia.
[15] In support of her position the respondent has filed a report by Dr. M. Freire her psychiatrist, dated October 6, 2011.
[16] It is the respondent’s belief that obtaining a diploma in her chosen field will provide a variety of employment options which would allow her to be self sufficient but which would not aggravate her fragile emotional health.
[17] The applicant father argues that there is no guarantee the respondent’s plan will provide the opportunities she envisions, or that the avenue she has chosen would be less stressful than retail management.
[18] He also argues that during the respondent’s time spent in Peru she published a blog indicating that she was well and symptom free.
[19] He points out that a non-managerial job in retail or otherwise would provide some income and that if this resulted in the need for child care, he would be obligated to contribute his share. The child will be going to school full time in September 2012 at which time child care is less of an issue.
CONCLUSIONS:
[20] In determining eligibility, I have considered: The history of the relationship during which both parties worked; that the respondent worked after their child was born until April 2010; the opportunities currently available for the respondent to earn income, her medical condition and her plan for a future career.
[21] While it is generally beneficial to obtain an education and train for a specific career, in this case I am troubled by the lack of any concrete plan. The respondent refers to a “variety of opportunities” but has provided no evidence of the job market in those fields, the expected pay scale, the anticipated hours of work, or why any such employment would be sufficiently stress free to be comfortable for her.
[22] Furthermore, a course of study, with time lines for assignments, tests and exams, carries with it an inherent level of stress which she has not addressed.
[23] The medical report does not indicate an inability to work, only a prognosis which is positive in a relatively stress free situation.
[24] I find no reason why the respondent could not work in retail or some other field without being in a managerial position. Even at minimum wage, her income would be over $20,000.00.
[25] In my view, it is reasonable to impute income to the respondent in the $20,000.00 - $24,000.00 range, based on her work history.
[26] At that level the mid-range for spousal support would be $109.00 per month.
[27] However, it is now almost two years since the respondent was working and I am not satisfied that she has made a case for a temporary spousal support order. Any need is largely self created.
[28] Therefore motion dismissed without prejudice to the respondent’s right to assert a spousal support claim at trial.
[29] Counsel for the applicant father may make brief submissions with respect to costs within 15 days. The respondent then has 15 days to respond.
Released: February 8, 2012
Justice J.C. Baldock