Court File and Parties

COURT FILE NO.: FC-11-1304-1

DATE: 2012-03-28

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Rosa Maria Fernandez Rojas, Applicant

AND

John Edward Kindle, Respondent

BEFORE: J. Mackinnon J

COUNSEL: Annemarie Roodal, for the Applicant

Philip W. Augustine, for the Respondent

HEARD: March 26, 2012

Endorsement

[1] The applicant moves for temporary spousal support. The respondent moves for an order for possession of the matrimonial home, for its sale, and for a restraining order against the applicant.

[2] During the hearing of the motion the parties agreed that the applicant could continue to occupy the matrimonial home until the end of April 2012 when she would give up possession of it, and that the home would then be listed for sale. An order will go in those terms. The remaining issue with respect to the sale was whether the court should dispense with the applicant’s signature on the listing agreement and the agreement for purchase and sale. The home is solely owned by the respondent and he submits that provided he sells the house at fair market value in an arm’s length transaction, the terms and conduct of the sale should be up to him.

[3] The amount of support requested by the applicant is $1,890 per month until she moves out of the matrimonial home and $3,549 per month thereafter. She has also requested a lump sum to assist with a repayment that will be due to Ontario Works and to assist with her first and last month’s rent when she leaves the matrimonial home. The respondent submits that the award should be $1,000 and $2,000 per month respectively. He has also asks that periodic payments actually made in 2011 be acknowledged in the amount of $1,500 per month from August 1, 2011 to the end of that year, and the applicant has agreed to this. This order is made without prejudice to the entitlement of either party to seek a different retroactive award at trial.

[4] The parties were married in December 2001. The date of separation is in issue. Depending on what that date is determined to be, the length of cohabitation was either nine or ten years. There are no children of the marriage. The respondent is a medical practitioner earning $243,000 per annum. The applicant is not employed. Her current income is $302 per month from Ontario Works. She is attending school five days per week to improve her English language skills and to acquire some computer skills. She is a qualified hair stylist in Mexico, her country of origin. Her plan is to attend Algonquin College to obtain the qualifications to work in this capacity here once her language skills are sufficiently improved.

[5] The respondent does not dispute entitlement to spousal support. He does submit that the applicant can and should be earning some money and asks the court to impute an annual income of $12,000 to her. I agree that the applicant is in a position to earn some money to contribute to her own support. The computer course she is taking does not appear to be directly related to her proposed area of employment. Even attending school as she does, she is finished every day at 3:30 p.m., and has her weekends and summers free. In my view her future employment prospects would also be enhanced by seeking out part time employment in some capacity in a hair salon. I have imputed $6,900 per annum income to her on the basis that she could reasonably work during the summer months when school is not in session, and for ten hours during the week even while attending school. It is reasonable to allow her a period of grace to look for and obtain suitable part time employment.

[6] There is no doubt of the applicant’s need. Her proposed budget comes to $3,191 per month without provision for income tax. Some reductions to her budget were proposed by the respondent, with respect to housing, clothing and dental expenses. I agree that the applicant can probably reduce her proposed expenses by about $300 per month. Her income taxes based on an award of $3,549 as requested by her are $610 per month assuming her earned annual income is $3,624. Since I have imputed a higher income to her, her taxes will also be slightly higher. From the SSAG calculations provided by the parties I have estimated she will need an extra $60 per month for income tax. Taking these changes into account I arrive at a monthly requirement for the applicant of $3,280.

[7] The amount asked by the applicant of $3,549 is the mid range SSAG based on the respondent’s admitted income, her income set at $3,624 per annum and a ten year period of cohabitation. The mid range calculated by the respondent based on nine years of cohabitation, the same income figure for him, and an imputed income for her of $12,000 per annum is $3,037 per month. He submits that the spousal support ordered should be lower than the SSAG range, namely $2,000 per month.

[8] The respondent’s financial statement shows a monthly deficit of $3,621 per month. His list of monthly expenses includes $2,500 for RRSP, $750 for vacation, $1,300 for food and meals, car expenses of $1,473, legal fees of $1,500 and income tax arrears payments of $7,200. He resides with his partner who earns $70,000 per year and is said to contribute only $700, which is one half of the rent, to their monthly expenses. Although his net family property is low because of assets owned at the date of marriage, the respondent’s net worth exceeds one million dollars. Based on these facts I am satisfied that the respondent can arrange his affairs and can afford to pay the amount of support that the applicant reasonably requires.

[9] The respondent submits that an award at or below the low end of the SSAG range is justified having regard to the fact that there are no children of the marriage, there is no compensatory entitlement and the claim is only needs based. The without child formula takes the first factor into account. The applicant moved here from Mexico to be married to and reside with the respondent, and this has had a clear impact on her ability to support herself given her language difficulties and lack of work qualifications in this country. Her need reasonably determined is well above the low end of the SSAG range. Granted there are many facts in dispute between the parties including the nature of the roles assumed by the applicant during their marriage. I am satisfied that those factors can be appropriately reflected in the quantum and duration of the final award without any prejudice to the respondent’s position arising from my temporary order.

[10] For these reasons temporary spousal support is awarded to the applicant in the amount of $3,549 for three months commencing on April 1, 2012, after which it will reduce to $3,280 per month. The three month period is intended to provide the applicant with time to obtain part time employment. Because she will continue to occupy the matrimonial home during April, when the respondent will be covering its carrying costs, I decline to award any additional sum for first and last month’s rent or for the amount she will be required to pay back to Ontario Works. The respondent is required to maintain the applicant as the beneficiary of his existing life insurance policy while this order is in effect.

[11] The court expects that the parties will reach an agreement with respect to the division of the contents of the matrimonial home.

[12] The applicant is required to provide the respondent with proof of her enrolment and course completion while she is attending school. She is also required to provide him with proof of her employment hours and earnings on a quarterly basis. Should she elect to return to Mexico that will constitute a material change in circumstances entitling the respondent to bring a motion seeking to change this order.

[13] I have not been persuaded to grant the other relief requested. There is no good reason to dispense with the applicant’s consent to the listing and sale of the matrimonial home. This relief was based on speculation that she might not cooperate or might leave the country. The evidence does not support these assumptions. Nor is there evidence to show that the respondent who has many health problems and is 64 years of age could obtain or afford to obtain more life insurance than he presently carries. The applicant has not been in contact with the respondent or attended at his office since October or November. There is inadequate evidence to support the request for a restraining order or a non communication order at the present time. If there are any net proceeds of sale of the matrimonial home they should be held in trust pending an agreement or order of the court as to their distribution.

[14] The applicant sought $1,900 for costs in the event she succeeded on the motion. She has been successful. The amount claimed for costs was not challenged by the respondent and is reasonable. Neither party wished to make further submissions with respect to costs. Costs to the applicant are fixed at $1,900 inclusive.

J. Mackinnon J

Date: March 28, 2012

COURT FILE NO.: FC-11-1304-1

DATE: 2012-03-28

COURT FILE NO.: FC-11-13041 DATE: 2012-03-28

ONTARIO SUPERIOR COURT OF JUSTICE

RE: Rosa Maria Fernandez Rojas, Applicant

AND

John Edward Kindle, Respondent

BEFORE: J. Mackinnon J

COUNSEL: Annemarie Roodal, for the Applicant

Philip W. Augustine, for the Respondent

ENDORSEMENT

J. Mackinnon J

Released: March 28, 2012