[Indexed as: Mero v. Mero]
Kathleen Mero, Appellant and Norman Mero, Respondent
Ontario Divisional Court
Lane, Cunningham, McKinnon JJ.
Heard: May 16, 2001
Judgment: May 18, 2001
Docket: 1154
I.R. Fisher, for Appellant
M. Teplitsky, for Respondent
Lane J.:
1 This is an appeal from the judgment of Mr. Justice Patterson fixing time limited spousal support. In accordance with the Supreme Court of Canada decision in Hickey v. Hickey (1999), 46 R.F.L. (4th) 1 (S.C.C.), we consider whether there has been an error in principle, a misapprehension of the evidence or whether the award is clearly wrong.
2 The major ground of appeal was the time limited nature of the order. We accept that such orders are confined to unusual cases. On this point see Kent v. Frolick (1996), 23 R.F.L. (4th) 1 (Ont. C.A.). In our view, this is an unusual case in an important respect. The wife is fully qualified and experienced in the field of Early Childhood Education. The trial judge found her to be highly employable in this field. There was evidence before the trial judge of advertisements for full time, as well as part-time work, in the relevant field in the Wind-sor area. The wife has not sought such employment and stated in cross-examination that she would not accept a job in Early Childhood Education even if one was offered to her at the range of $30,000 per annum. This attitude arises because she has her heart set on becoming a teacher. To do this will require four or five years of study and she testified that she needed to obtain grade A standing in nine courses to qualify to enter into these studies. Her educational efforts, since separation, have produced two B's and one C and there is no evidence that her goal is a realistic one. No evidence was brought as to her course results, if any, since the order of Justice Patterson and it is fair to assume that any A standings would have been brought to our attention.
3 It is true that courts ought not to discourage the pursuit of educational advancement. The Court of Appeal has so held in Trewin v. Jones (1997), 26 R.F.L. (4th) 418 (Ont. C.A.), but the central issue here is whether the husband should bear the costs of an apparently unrealistic educational program. We cannot say the judge was wholly wrong or erred in principle in seeing this case as one where a time limit was appropriate. A motion can be brought to extend the time if true progress is made within the two year period.
4 The other argument submitted was as to quantum. It was said $550 a month was entirely inadequate. An analysis of their respective incomes shows that on an after tax basis the parties are in similar positions. If anything, the wife might be slightly ahead. As well, she has exclusive possession of the matrimonial home for the next two years which has a value in the form of foregone rent. We cannot say that the judge was clearly in error or acted upon a wrong principle. The result is within what has been called the "generous ambit within which reasonable agreement is possible", see Mack v. Mack (1986), 1 R.F.L. (3d) 143 (Ont. C.A.).
5 In the result, the appeal is dismissed. Costs to the respondent fixed at $3,000 payable from the proceeds of the sale of the matrimonial home.
Appeal dismissed.