SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FC-11-039351-00 Newmarket
DATE: 20120305

RE: Carol Bodenstein, Applicant

AND:

Eyal Bodenstein, Respondent

BEFORE: F. Graham J.

COUNSEL:
Sheila Gibb, Counsel, for the Applicant
Sheila Bruce, Counsel, for the Respondent

HEARD: February 22, 2012

ENDORSEMENT

[ 1 ] On February 22, 2012, as a result of Ms. Bodenstein’s motion for temporary exclusive possession of the matrimonial home, the court ordered a ‘week about nesting arrangement’ until Dr. Bodenstein’s purchase of the jointly owned matrimonial home closes on or before May 15, 2012.

[ 2 ] The court’s reason for making the alternate week nesting order was to promote the best interests of the children, in particular to maximize the children’s contact with each of their parents, pending the establishment of a temporary or permanent parenting plan.

[ 3 ] In arriving at that decision, the court gave very little weight to the fact that Ms. Bodenstein left the matrimonial home, where the children continued to reside, a relatively short time after separation and then resided at her own apartment for about seven months before moving back into the matrimonial home. The court gave that fact little weight because a parent’s decision to leave a matrimonial home, upon or shortly after separation, despite the fact that the children of the marriage continue to reside there, may be made for a variety of appropriate reasons – including the best interests of the children. Further, such decisions can be made in a context in high conflict, high tension, high stress, and/or high emotional pressure. For these reasons, a court must be careful not to treat the decision of the moving parent as creating a status quo or as an indication that the parent should not have an equal parental role without considering whether all of the evidence supports such a conclusion on the basis of the best interests of the children. In this case, there is evidence of high conflict, high tension, high stress, and high emotional pressure at or about the time of separation which may explain Ms. Bodenstein’s decision. Further, her decision was apparently supported by Dr. Bodenstein who paid her first month’s rent. It is also noteworthy that Ms. Bodenstein selected a residence that was close to the matrimonial home.

[ 4 ] For the duration of the temporary nesting order, neither party shall permit smoking in the matrimonial home or in vehicles used to transport any of the children.

[ 5 ] With respect to temporary spousal support, the court is governed by s. 15.2 of the Divorce Act.

[ 6 ] Subsections 15.2 (4), (5) and (6) of the Divorce Act provide,

(4) Factors - In making an order [for temporary spousal support] the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

(c) any order, agreement or arrangement relating to the support of either spouse.

(5) Spousal Misconduct - In making an order [for temporary spousal support] the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

(6) Objectives of Spousal Support Order – An order [for temporary spousal support] that provides for the support of spouse should

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[ 7 ] These provisions speak to three different types of spousal support: compensatory, contractual, and non-compensatory (see Bracklow v. Bracklow 1999, [1999] 1 S.C.R. 420).

[ 8 ] Ms. Bodenstein seeks an order for temporary spousal support on a compensatory basis and on a non-compensatory basis. Dr. Bodenstein conceded that Ms. Bodenstein is entitled to spousal support on a non-compensatory basis but submitted that she is not entitled on a compensatory basis given that she worked throughout the marriage and the parties had a full-time nanny. Ms. Bodenstein argued that she has a compensatory basis for temporary spousal support because she was the primary caregiver for the children while Dr. Bodenstein pursued the education that permits him to earn his current substantial income. Dr. Bodenstein disputed that Ms. Bodenstein was the primary caregiver for the children and noted that he worked while furthering his education.

[ 9 ] The court finds that a decision whether Ms. Bodenstein has a compensatory basis for spousal support is best left to a trial judge given the contrary claims and arguments. For the purposes of temporary spousal support, the concession that Ms. Bodenstein has a non-compensatory entitlement to spousal support is sufficient.

[ 10 ] Ms. Bodenstein seeks only an on-going support order at this time but asked the court to make it clear that any on-going order shall be without prejudice to her seeking spousal support back to the date of separation.

[ 11 ] Although it is not necessary to do so, the court is content to make such a statement. Accordingly, any order the court makes for temporary spousal support will be on an on-going basis but without prejudice to a trial judge’s authority to order spousal support commencing upon or anytime after separation, or to order a different amount of spousal support, including during the period of time any temporary order applies, and to make an order for spousal support on a compensatory and/or non-compensatory basis.

[ 12 ] For the purposes of on-going temporary spousal support, the court will use Dr. Bodenstein’s latest figure for his 2011 income, i.e. $413,500, because it is in dispute whether his income is higher and because the court is satisfied that that amount of income will lead to a temporary spousal support order that will be adequate to meet Ms. Bodenstein’s immediate and temporary needs. Of course, a trial judge will be at liberty to find a different quantum for Dr. Bodenstein’s income.

[ 13 ] Ms. Bodenstein is currently unemployed. She indicated that before she met Dr. Bodenstein, her maximum income was $35,000 per annum in marketing and office management. She indicated that during their twenty year marriage she cared for their three children and acted as an ad hoc office manager for Dr. Bodenstein’s practice once it was established. She also indicated that she has not had any other work experience, other than some unsuccessful venture efforts, for the past ten years but, nevertheless, she has been seeking employment in the $30,000 to $50,000 per annum range and she is trying to establish her own business. She noted that on January 17, 2012, she was offered and accepted a job at Ice Culture at a salary of $40,000 per annum for the first 3 months and $45,000 per annum thereafter but she had to resign in early February, before her start date, because the travel required during the first three weeks of employment exceeded the terms she had been offered and accepted and would result in her being away from the children for too long.

[ 14 ] Dr. Bodenstein argued that the court should impute an income of $45,000 to Ms. Bodenstein based on the salary she forfeited at Ice Culture.

[ 15 ] The court finds, however, that the material filed from Ice Culture confirms Ms. Bodenstein’s evidence. The letter of January 17, 2012 offering her the job stated,

“The period from February 13 th , 2012 to May 16, 2012 will be a training period. During this time, you will be working from home in Toronto and travelling to the Hensall office for cross departmental training several days a week for the first two to three weeks and then up to one day per week for the remainder of this period.” [emphasis added]

The actual training schedule she received in February, however, required her to work away from home for nine consecutive days, then she had one day off, then she was to work a further three consecutive days away from home, then she had a second day off, and then she was to work a further four consecutive days away from home. Thus, the actual schedule required her to work away from home 16 of the first 18 days of her employment. Clearly, that schedule was materially different from the terms of employment she accepted.

[ 16 ] Dr. Bodenstein also argued that Ms. Bodenstein has already had more than a year since separation to find work.

[ 17 ] Ms. Bodenstein replied that she was employed with Dr. Bodenstein until May of 2011, and, therefore, she has had less than a year to find work, and she noted that she was on a salary of $5,000 per month paid by Dr. Bodenstein until August of 2011.

[ 18 ] The court is not persuaded that Ms. Bodenstein has been intentionally unemployed since separation. To the contrary, it appears to the court that she has been making reasonable efforts to find employment in the salary range of her search - as indicated by her acceptance of the initial terms of employment with Ice Culture.

[ 19 ] On the other hand, given her lack of success in finding employment to date, the court finds that she should soon broaden her search to include employment in a lower range of remuneration. Otherwise, it may that a minimum wage income of about $22,000 per annum should be imputed to her in the not too distant future.

[ 20 ] In determining the appropriate amount of temporary spousal support, the court finds that Ms. Bodenstein’s draft budget is of limited assistance given that it includes many amounts that are clearly overstated.

[ 21 ] The matrimonial home where Dr. Bodenstein will continue reside after the transfer is being transferred for $805,000. It is 3,800 square feet and maintained by lawn care and snow removal professionals.

[ 22 ] Ms. Bodenstein stated that house rentals in the same neighbourhood cost about $2,300 to $3,100 per month plus utilities.

[ 23 ] Ms. Bodenstein seeks $5,000 in temporary spousal support per month while she is residing in the matrimonial home if Dr. Bodenstein is also required to pay the expenses of the home including grocery purchases. She seeks $9,500 per month upon the sale of the home to Dr. Bodenstein.

[ 24 ] Dr. Bodenstein did not suggest a specific amount for temporary spousal support.

[ 25 ] Given that Ms. Bodenstein has no income and given some time will pass before any temporary order for spousal support is in received by Ms. Bodenstein through the Family Responsibility Office, the court finds that it is appropriate for Dr. Bodenstein to continue to make the matrimonial home mortgage payments and pay the property taxes, house insurance, and utility bills for the matrimonial home during the relatively short period of time until the house transfer closes and, accordingly, orders him to do so.

[ 26 ] For the same reason, the court orders Dr. Bodenstein to buy sufficient and appropriate groceries for himself, the children, and Ms. Bodenstein until the home transfer closes.

[ 27 ] Given those temporary orders, and having considered the condition, means, needs and other circumstances of each spouse, Dr. Bodenstein shall pay Ms. Bodenstein $4,000 per month in temporary spousal support, commencing March 1, 2012, until the home transfer closes. Thereafter, commencing the first day of the month immediately following the closing of the home transfer, Dr. Bodenstein shall pay Ms. Bodenstein $8,500 per month in temporary spousal support.

[ 28 ] A support deduction order shall issue.

[ 29 ] The Spousal Support Advisory Guidelines ( SSAG ) are of limited assistance in this case given that Dr. Bodenstein’s income exceeds the ceiling amount and given that there is no parenting plan in place beyond the transfer of the matrimonial home but, nevertheless, the court has considered the SSAG ranges for Dr. Bodenstein’s income and for the ceiling income of $350,000 in the without children, with children, shared residence, and custodial parent paying support scenarios and finds that the quantum of the court’s temporary order is appropriate in view of those ranges and all of the current circumstances.

[ 30 ] The court notes that should either party obtain an order for temporary child support, the appropriate amount of temporary spousal support may change.

[ 31 ] Ms. Bodenstein also seeks an order requiring Dr. Bodenstein to obtain and maintain sufficient life insurance to secure the court’s order for temporary spousal support. Dr. Bodenstein did not argue otherwise.

[ 32 ] Accordingly, Dr. Bodenstein shall forthwith obtain and maintain $1 million in insurance on his life payable to Ms. Bodenstein during the period he is required to pay temporary spousal support and he shall provide her with written proof of his compliance with this order within 14 days of obtaining such insurance.

[ 33 ] Orders shall go accordingly

F. Graham J.

Date: March 5, 2012