ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 691/10
DATE: 2012/02/23

BETWEEN:

KATHLEEN ELIZABETH MILLIGAN

J. Almas, for the Applicant

Applicant

• and -

GREGORY BRUCE ASPDEN

M. Stratton, for the Respondent

Respondent

HEARD: January 17, 18, 19, 20, 2012

The Honourable Mr. Justice D.J. Taliano

1The parties have resolved most of the issues triggered by this litigation. The unresolved issues relate to the start date and quantum of child and spousal support.

2The parties were married on September 24, 1996 and had lived in a common law union with each other for two years prior to the marriage. They have two children, Zya, who was born on February 18, 1997 and Liv, who was born on June 17, 2000. Incredibly, they separated on Liv’s ninth birthday. At the time of the separation, they agreed that they would protect the children as much as they could from the impact of their separation by agreeing on joint custody on a week-on, week-off basis. They also agreed that any third party relationships would be managed with sensitivity so as not to adversely impact the children.

3It was agreed that the mother would leave the matrimonial home, which was located in rural Pelham. Although she felt that the matrimonial home and property would be too costly for the father to maintain, he was passionate about the house and declined to put it on the market. The father proposed and, in fact, paid the sum of $700 on a bi-weekly basis for support commencing in July 2009. Although this sum was not adequate to meet the mother’s needs, she did not press the matter out of fear of jeopardizing the payments the father had agreed to make. He also permitted the mother to use his Mazda motor vehicle (a vehicle which became a financial drain for the mother) on the understanding that she would maintain it until she could take over the loan on the vehicle or replace it with a vehicle of her own choosing. In the meantime, the father was making the loan payments for the vehicle and paying one-half of the insurance premiums on the vehicle.

4A car was a necessity for the mother because she was planning to move into a small home in St. Catharines, which was some distance to Zya’s school in Beamsville. Although the mother preferred to enroll her daughter in a St. Catharines school, which would have eliminated the transportation demands of the Beamsville school, the father refused to permit it because Zya had been chosen by lottery to attend a unique and popular school, was doing well there and had only one year more to go before having to change schools. Although Zya would benefit greatly from this decision, driving became a major problem for the mother because of the expense and inconvenience.

5The generosity of the mother’s family enabled her to buy a small home in St. Catharines which provided the children with a stable environment when they were with her. Several years before the separation, the parties had agreed to acquire a business property in St. Catharines where the mother could conduct a business, called Action Hypnosis, with her husband’s full support.

6Once separated, the parties decided to engage one lawyer (Mr. Wintermute) to counsel them both regarding the terms of their separation. Those consultations led to the preparation by the father, in or around October 2009, of a draft separation agreement found in Volume 3 of the Joint Document Brief, Tab. 31. However, the terms he proposed were unreasonable and did nothing more than to aggravate an already strained relationship with the mother. For instance, notwithstanding the significant disparity in their existing incomes, the gap between their future income-earning potential and the length of their marriage, the father proposed to pay no child support, no spousal support and refused to divide his pension with the mother.

7There were two other additional areas that caused major difficulties. Both mother and father had found new partners and despite their agreement to conduct their personal lives away from the gaze of their children, on the weeks when the father had the children at his home, when driving the children to school in the mornings, he made it a practice to drive past the mother’s residence where the children were able to see the mother’s friend’s automobile parked in the driveway. When the mother complained about the father’s behaviour, he simply told her to have her friend park somewhere else. These events caused major problems for Zya that required expensive counselling which the mother arranged and paid for. The father refused to contribute to the cost of the counselling. Matters worsened when the mother learned that the father had started a clandestine relationship with one of the mother’s personal friends. This was disturbing not only for the mother, but for the children who knew the other family as well. It was even more egregious considering that the parties had specifically agreed that they would protect the children and each other from hurtful behaviour.

8The second incident occurred approximately one year after separation. Although details were not provided, there was a disagreement between the father and the mother’s new partner following which the father terminated all further support. He sent the mother an e-mail, dated June 28, 2010, claiming that he was unable to afford the level of payments he had been making and made the unreasonable suggestion that the mother’s gross income as opposed to the net income from her business, be the basis for off-setting child support. Although in his e-mail he indicated that he would be paying a reduced level of support, in fact, he paid no further support whatsoever after the June 2010 payment. Although he was urged not to terminate support by Mr. Wintermute, he ignored that advice and persisted with his attitude of no support.

9As a result, the mother was forced into litigation. Although she was diligent in pursuing her rights, she was not able to obtain an order for support until February 24, 2011 at which time a consent order was made. By Justice Scott’s order, the father was ordered to pay child support of $850 per month and spousal support of $950 per month commencing March 1, 2011. However, the issue of unpaid support from July 2010 to February 2011 was left to the trial judge and remains unresolved as does the mother’s retroactive child and spousal support claim from the date of separation.

THE RETROACTIVE CLAIM – JUNE 2009 TO JUNE 2010

10Although the parties were certainly discussing the issue of child and spousal support following the separation, the mother reluctantly accepted the level of support she was receiving at that time. She chose not to contest the amount and made no formal demand for increased support. Her reluctance might have been influenced by the fact that the father continued to reside in the matrimonial home and had agreed to be responsible for its maintenance. She was also aware that the matrimonial home could not be afforded on the father’s income. She therefore knew that he did not have the income for more generous support. The house was a luxury that could not be afforded yet the mother did not take steps to force a sale of the house following the separation probably because the children were spending a good deal of time with the father in the home. That suggests that she accepted the status quo during the initial stages of the separation, albeit reluctantly. Pursuant to their agreement at the time of separation, the father agreed to be solely responsible for all of the expenses of the matrimonial home up to the date of its sale and has looked after the property and the farm animals as he agreed to do. For these reasons, I have not been persuaded that retroactive support from the date of separation to the date of termination of support would be appropriate.

SUPPORT FROM JULY 2010 TO FEBRUARY 2011

11It is clear however, that support should not have been terminated when it was and the father is clearly responsible to pay support for the period between July 2010 and February 2011. The question is what an appropriate level of support is. There are several options: first, the father could be ordered to pay the same level of support he was paying when he terminated support which was $700 bi-weekly or $1,516 monthly; second, the father could be ordered to pay the consented amount set by Scott J. of $1,800 per month; or third, the father could be ordered to pay the amount to be set by the court going forward.

12Of the three options, it must be noted that the sum of $1,516 was paid voluntarily and without the benefit of any written agreement or court order. The amount was inadequate and, therefore, does not constitute an appropriate award now. On the other hand, the going forward award is based on a higher level of income than the father had in 2010. I have concluded for reasons which I will explain momentarily that the appropriate disposition is to make Scott J.’s award retroactive to cover the months between July 2010 and February 2011. Before formalizing that conclusion I will deal with the father’s submissions with respect to the quantum of spousal support.

QUANTUM OF SUPPORT

13The father takes the position that the court should impute a minimum level of income to the mother of $21,320 per annum for spousal and child support purposes. He argues that the mother could be working in retail sales or in some other area of employment, earning minimum wage and that, if she did so, this would be the level of income she could expect to earn.

14The mother’s employment history is set out at Tab 15 of Exhibit 2. The mother has had various jobs since she graduated from Humber College in 1993 with a Diploma as a Development Service Worker. Between 1998 and 2003, she worked in the social services field and she recently found a similar position advertised in Fort Erie that paid $13 per hour. However, that job, assuming she would have been hired had she applied for it, would have required travel and shift work, neither of which would be suitable given the current child-care demands.

15Counsel for the father also suggested in cross-examination that, because of her past job experience, she could be working part time in the retail field to supplement her business income. However, that suggestion is not practical for a variety of reasons. First, the mother is currently working at her own business and I will elaborate on that subject in a moment. Second, she is renting out a portion of her business property to tenants and that requires her to play the role of landlord which has its own demands. Third, she is raising two young children who have been and continue to be adversely impacted by the separation. Counselling is time-consuming but is absolutely necessary to ensure that the children are fully supported during this turmoil. It seems to me that requiring the mother to do more to support herself than she is presently doing is unrealistic and unfair.

16It was also submitted that the mother should be forced to give up her career and pursue other more lucrative employment. However, I cannot accept that suggestion as being reasonable either. Although the mother has worked in various other areas of employment, she feels that she has a better future working as a Hypnotherapist, a career for which she has been certified. Following her training, she opened her own business called Action Hypnosis with the support and encouragement of her then husband, who no longer supports this career choice by the mother. The mother testified that her business has numerous clients seeking help for a variety of issues surrounding such things as infertility, child birth, addictions, fears and anxieties. Clients come to her by referral from doctors, naturopaths, midwives, chiropractors and other professional care-givers. It is a business which the mother feels she can grow if she is permitted to devote her energy and time to it.

17The mother operates from a property that houses tenants who pay rent which supplements the mother’s annual income. The business has not produced great profits over the past several years partly because the mother has had to focus so much of her attention and energies on caring for the children and devoting so much time to the demands of this litigation. Her income for 2010 was $9,976 and was $9,049 for 2011. The mother is optimistic about the future of her business.

18On the other hand, the father did not present any evidence that the mother would be successful in obtaining a full time retail sales position at the present time given the current economic climate or that she would be able to manage so many balls in the air without further compromising the interests of the children.

19The mother struck me as a conscientious mother and a person who will likely succeed if given a reasonable opportunity to do so. At this stage of her life, she is entitled to pursue her own career path. Had it not been for the turmoil in her life over the past several years, I am inclined to believe that her business would have done better than it has. There is no question that she has had to deal with many unreasonable demands advanced by the father since their separation which would have impacted on her ability to develop her business with a view of becoming economically self-sufficient. Examples of his unreasonable demands and behaviour are as follows:

(a) The father’s termination of all support and refusal to reinstitute payments until ordered to do so by the court was a traumatic event for the mother and it is little wonder that her business would have suffered during this tumultuous period given the economic stress that the father inflicted by his conduct.

(b) Even though she urged her husband to sell the matrimonial home, he steadfastly refused to do so. While he continued to occupy the house and receive rental income from tenants which he did not share with the mother, he persisted in a demand that the mother pay for half of the expenses of the matrimonial home right up until the last day of trial, even though the mother was taking full responsibility without contribution from the father of two other matrimonial properties. His unreasonable demand for contribution needed to be vigorously defended and her defence of this unreasonable claim would have been costly and time-consuming.

(c) Although he provided the mother with a car which she required to discharge her bi-weekly obligations to drive their oldest daughter to a remote school that the father insisted the daughter attend, the mother, with an income only a fraction of the father’s, was required to pay approximately $6,000 in repair bills for the car while the husband paid less than $2,000 for the vehicle. When the car was sold, the mother did not receive any portion of the proceeds. She had to litigate the issue of spousal support to generate enough income to acquire a reliable form of transportation for herself and her children. The driving commitment and the difficulties of having to rely on a motor vehicle that was constantly in the repair shop would have had a serious impact on the mother’s ability to work at her business or for that matter any other type of employment.

(d) The father refused to contribute his fair share of counselling expenses even though the difficulties which counselling was required to address were caused at least in part by his conduct. Given the demands on the mother’s time for counselling and transportation, it was unreasonable for the father to expect the mother to also be able to balance the demands of a structured job as opposed to the flexibility that her own business would provide.

(e) The father refused to agree to cooperate with the mother’s attempt to refinance the mortgage on her business property which would have reduced the interest rate from 8.5% to something in the vicinity of 2 or 3%. The mother had to resort to litigation to resolve the property ownership issues with her husband which were only resolved during the course of the trial. Litigating issues which had previously been agreed to clearly took time from the business she was trying to operate.

(f) The father kept all of the contents of the matrimonial home. The mother was required to find and completely furnish her replacement home at her own expense an exercise which would have taken a good deal of time, effort and expense.

(g) The mother leaves this marriage with considerable debt. The father appears to be debt free since loans he made from relatives are likely not repayable according to the father’s own evidence.

20Accordingly, I have concluded that the father’s unreasonable and at times irresponsible approach to many of the issues that arose following the separation has been destabilizing and counter-productive. His attitude has not been conducive to the good working relationship that was envisioned by a joint custody arrangement, although joint custody is something that the mother has encouraged in spite of the difficulties it has presented for her. At the very least, the father’s behavior created so many distractions for the mother that it is reasonable to believe that had she been able to work at developing her business, the mother might very well have been able to achieve a greater level of financial independence and self-sufficiency. She is entitled to an opportunity to do so. That being the case, it is not appropriate to impute a higher level of income to the mother at the present time.

21The father has not filed his income tax return for 2010 in spite of his obligation to furnish his tax return as part of this litigation process. However, his T4 indicates an income of $79,435. In addition, the father also has rental income from a small dwelling on the property of the matrimonial home. The net income from that property in prior years has been approximately $3,000 per annum. Accordingly, his income for 2010 is $82,435.

22According to the Divorce Mate calculations prepared and filed by Mr. Almas, the father’s obligations for spousal support and child support in 2010 would be $1,126 and $1,156, respectively, for a total of $2,282 per month. However, given the expense of maintaining the matrimonial home, the father has a considerable shortfall for 2010 as shown in his financial statement (Tab 10 of the Trial Record).

23On the other hand, the mother seems to have been able to balance her income and expenses more successfully as shown in her financial statement found at Tab 8 of the Trial Record. Accordingly, I do not propose to alter the father’s support obligation for 2010 and 2011 as set by Scott J. That order is confirmed as being appropriate and therefore the father is ordered to pay spousal support of $950 per month and child support of $850 per month from July 1, 2010 through to and including February 1, 2011 and the same amounts thereafter until April 1, 2012. Husband is of course to be given credit for any support payments made during the periods covered by this judgment.

GOING FORWARD

24However, the matrimonial home has now been sold and the closing date is close at hand. The father’s employment income for 2011 was $81,142.65 which combined with rental income of $3,000 per annum gave him an income of $84,142.65 for 2011. However, going forward, he will not have the rental income and I therefore fix the father’s obligation for spousal support and child support, based on a rounded annual income of $81,000, at $1,088 and $1,200 respectively, for a total of $2,288 per month. He is ordered to pay this amount monthly commencing March 1, 2012. Spousal support entitlement, as opposed to quantum, will not be subject to further review for a period of three years from this date unless there is a material change in circumstances. The parties shall exchange income information in June of each year commencing June 2013.

25Although at these figures, the mother has slightly higher disposable income than the father, she also is shouldering more than equal time with the children, particularly Zya who at the moment is spending much less than equal time with the father and is in counselling over an issue which stems from difficulties arising from the father’s new partner and her family.

26The court has heard no submissions as to costs. If counsel wish to make submissions, arrangements shall be made through the local trial co-ordinator.

Taliano J.