COURT FILE NO.: 4420/05
DATE: 2012-04-05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PAMELA ANTONIOW
Applicant
– and –
GREG ANTONIOW
Respondent
Self-Represented
Self-Represented
HEARD: January 4 & 5, 2012
REASONS FOR JUDGMENT
MURRAY J.
[1] The applicant and the respondent began living together in 1987 and were married on October 7, 1989. They separated on or about April 19, 2005. The applicant was born on April 19, 1965 and was 40 years of age at date of separation. The respondent was born on May 25, 1963 and was 42 years of age at the date of separation.
[2] Together the parties have two children: a son, Reid, born on November 24, 1993, and a daughter, Shelby, born on December 17, 1994. The applicant currently lives in Georgetown, Ontario and the respondent lives in Sault Ste. Marie, Ontario.
The Issues
[3] Divorce was severed from corollary relief by order dated Aug 13, 2009. This trial dealt with issues of corollary relief.
[4] At the outset of the trial, there were numerous issues in dispute related to alleged over and under payments made by the parties after separation and up to the date of trial. These differences resulted in various claims for retroactive payments and various claims for credits to be applied to offset retroactive obligations. For purposes of this judgment, these differences need not be outlined because during the course of the trial both parties resolved all issues except that of ongoing spousal support. I note that, as part of the resolution, the applicant agreed that the respondent will not be required to make further payments to satisfy outstanding obligations pursuant to the costs order made by Corbett J. on April 21, 2011 ordering the respondent to pay the sum of $1,200 at the rate of $50 per month.
[5] The parties are in agreement that child support is to be paid in accordance with the Guidelines that reasonable section 7 expenses are to be shared in proportion to their incomes. The only issue to be resolved by the Court is that of what, if any, spousal support should be paid by the respondent to the applicant.
Facts
[6] The applicant and the respondent began living together in 1987 and were married on October 7, 1989. They separated on or about April 19, 2005 after approximately 17 years of cohabitation. The applicant was born on April 19, 1965 and was 40 years of age at date of separation. The respondent was born on May 25, 1963 and was 42 years of age at the date of separation.
[7] The parties lived in Georgetown, Ontario with their children until 1996 when the family moved to Sault Ste Marie. They remained in the Sault from 1996 until separation in April, 2005. Shortly thereafter, the applicant moved back to Georgetown with Reid and Shelby. Both children were in the custody of and resided with the applicant until August of 2009 when Gray J. of this court awarded custody of Reid to the respondent father. Since that date, Reid has resided with his father in Sault Ste. Marie and Shelby has resided with her mother in Georgetown Ontario. Shelby is currently living with her mother and attending high school in Georgetown, Ontario. She intends to go to university upon completion of high school. Reid currently lives with his father in Sault Ste. Marie and has completed his first year at community college in Sault Ste Marie.
[8] The applicant has received two years of post-secondary education in accounting at a community college and Ryerson. Prior to the marriage, the applicant worked as a comptroller and earned approximately $45,000 per annum.
[9] After completing a maternity leave with her then employer, in 1994 after the birth of Reid, she stayed at home to be a full time parent and primary caregiver to Reid and Shelby. Thereafter, the family lived on one income, that of the respondent, until separation.
[10] After separation in 2005, the applicant worked at various part-time jobs and made a very small income. In December 2006, Justice Snowie of this court ordered the respondent to pay spousal support in the amount of $1,500 per month, retroactive to August 1, 2006 ,and child support in the amount of $1,050 per month for both Reid and Shelby based on the respondent’s income in 2005 of $70,610 and the applicant’s income of $20,500 (including spousal support of $18,000).
[11] In September 2007, Justice Langdon found that the applicant was underemployed and imputed to her an income of $21,289 and, based on the respondent’s income of $68,952, Langdon J. calculated spousal support in the amount of $351 per month but offset that amount by travel costs that the respondent would incur by travelling from Sault Ste Marie to Georgetown to exercise his access rights. The result was that Langdon J. ordered spousal support reduced to $0.00. Child support was continued payable by the respondent to the applicant in accordance with the Guidelines.
[12] In November 2007, only a couple of months after the order of Langdon J., the applicant obtained employment through an employment agency and was placed by the agency to work at Flo Draulic Controls Ltd., a Georgetown based company, in an accounting position. In February, 2008, the applicant ceased working for the agency and commenced working directly for Flo Draulic Controls Ltd. as a full-time employee in an accounts payable position where she still works. Her income from this employment from 2008 and thereafter has been as follows: $33,587 in 2008; $34,850 in 2009; $39,210 in 2010 and $39,100 in 2011.
[13] The income of the respondent ranged from approximately $65,000 to approximately $75,000 during the period from 1996 to 2005 when the family lived on his income in Sault Ste Marie. In the years 2007 and thereafter, the Respondent’s income has been as follows: $72,707 in 2007; $76,192 in 2008; $69,634 in 2009.
[14] The respondent’s income suffered a reduction in January, 2010 as a result of a workplace accident which caused permanent and disabling injury resulting in his being unable to continue working in his trade as a mechanic. The respondent has been in receipt of WSIB payments since the accident. In 2010, the respondent received net payments in the aggregate amount of $48,398 from WSIB. He has also been engaged in a retraining program to facilitate re-entry into the workforce. The respondent hopes to return to the workforce on completion of his retraining in 2012. For 2011, it is agreed by the parties that the net income from WSIB equates to a gross income of $61,663.
Analysis
Spousal Support
[15] In making the determination regarding spousal support, I am mindful of the factors and objectives of ss. 15.2(4) and (6) of the Divorce Act regarding an order of spousal support. In making this decision, I am also mindful of the Spousal Support Advisory Guidelines which indicate a range of spousal support from $0.00 at the low end to $115 per month in the mid-range to $312 at the high-end.
[16] The applicant and the respondent have agreed that the only issue is what spousal support, if any, is to be paid on a prospective basis.
[17] The Spousal Support Advisory Guidelines provide for spousal support at the low end of the range of $0.00, $115 per month at the mid-point and $312 per month at the high end with a minimum duration of 9 years to a maximum of 19.5 years.
[18] The spousal support paid pursuant to the December 2006 order of Justice Snowie - which required the respondent to pay $1,500 retroactive to August 1, 2006 - facilitated the applicant's transition from being a stay-at-home mother to return to the workplace at least until such order was terminated by the order of Langdon J. in September of 2007.
[19] Even if the economic disadvantages from the marriage breakdown were more pronounced for the appellant immediately after separation, seven years have passed since that separation in April 2005 and it is evident that the applicant no longer suffers such disadvantages. In the years since separation, the applicant has successfully returned to the workplace. In 2011 her annual earnings were $39,100 from her current full-time employment.
[20] Accepting that the applicant assumed the burden of child rearing and household responsibilities, there is no compelling evidence that this negatively affected her career goals or advanced those of the respondent. There is no evidence of any realistic prospect of advancement in the employment which she held prior to her marriage.
[21] There was no evidence that the applicant was deprived of education that she otherwise would have in order to pursued to improve her income-earning potential.
[22] As a result, I conclude that the applicant is not entitled to spousal support.
Child Support
[23] Child support and the manner of dealing with section 7 expenses are agreed.
[24] Based on the 2010 incomes of the applicant and the respondent of $39,464 and $61,663 respectively, the applicant’s obligation pursuant to the Guidelines is to pay $353 to the respondent while Reid remains a dependant living with his father and attends a postsecondary educational institution for his first diploma or degree. The respondent’s obligation pursuant to the Guidelines is pay to the applicant the amount of $561 while Shelby remains a dependant living with her mother and attends a postsecondary educational institution for her first diploma or degree. These obligations are offset resulting in the payment of $208 per month by the respondent to applicant.
[25] Of course, if Shelby were to remain a dependant living with her mother and attending university after Reid finishes his postsecondary education, the child support payable by the respondent to the applicant would be based on his income without any setoff.
[26] The parties have agreed that reasonable section 7 expenses shall be shared in proportion to their income. As stated above, the incomes for the applicant and the respondent are $39,464 and $61,663 respectively resulting in a splitting of such expenses in the following proportion: 40% payable by the applicant and 60% by the respondent.
[27] The parties have agreed that a reasonable section 7 expense for Reid and Shelby while they are dependants is the cost of four round trip airline tickets, one per quarter, to permit either Reid or Shelby to fly from Sault Ste. Marie to Toronto and return or from Toronto to Sault Ste. Marie and return. This will provide Shelby and Reid with the means to travel for purposes of visiting their sibling and their noncustodial parent. Like other section 7 expenses, 40% of the cost of each airline ticket will be paid by the applicant and 60% by the respondent.
[28] With respect to the cost of attending postsecondary educational institutions, the parties are also agreed that each child should be responsible for paying 40% of his/her postsecondary educational expenses. Therefore, on an on-going basis, Reid and Shelby shall be responsible for 40% of postsecondary expenses (including tuition and books) and the remaining 60% shall be by the parents each parent contributing as stated above: 40% of the remaining 60% to be paid by the applicant mother and 60% of the remaining 60% to be paid by the respondent father.
[29] The parties have agreed that their portion of postsecondary educational payments can be made directly to the children. Since both parties agree to this arrangement to pay Reid and Shelby directly, I will leave it to the parties to ensure that they provide accurate information to each other in a timely fashion to enable both parties to monitor compliance with each of their obligations to contribute to Reid’s and Shelby’s postsecondary educational expenses.
Conclusion
[30] The applicant is not entitled to an order for spousal support.
[31] As noted above, based on the 2010 incomes of the applicant and the respondent of $39,464 and $61,663 respectively, each parent has the obligation to pay child support pursuant to the Guidelines. The applicant is obligated to pay to pay $353 to the respondent while Reid remains a dependant living with his father and attends a postsecondary educational institution for his first diploma or degree. Pursuant to the Guidelines, the respondent is obligated is pay the applicant the amount of $561 while Shelby remains a dependant living with her mother and attends a postsecondary educational institution for her first diploma or degree. These obligations are offset resulting in the payment of $208 per month by the respondent to applicant.
[32] It is therefore ordered that commencing April 1, 2012, and on the first of each month thereafter, the respondent shall pay to the applicant child support in the amount of $208 per month for Shelby, born December 17, 1994. Such child support shall continue while Shelby remains a dependant living with her mother and attends a postsecondary educational institution for her first diploma or degree until the parties agree or a court orders otherwise.
[33] It is further ordered that reasonable section 7 expenses for Reid and Shelby shall be shared in proportion to income as follows: 40% payable by the applicant and 60% by the respondent until the parties agree or a court orders otherwise.
[34] It is further ordered that the parties shall advise each other of any change of income or employment; in addition, each year the parties shall provide copies of income tax returns for the previous year at the same time they are filed and notices of assessment upon receipt until Reid and Shelby cease to be entitled to child support under the Guidelines.
MURRAY J.
Released: April 5, 2012
COURT FILE NO.: 4420/05
DATE: 2012-04-05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PAMELA ANTONIOW
Applicant
– and –
GREG ANTONIOW
Respondent
REASONS FOR JUDGMENT
MURRAY J.
Released: April 5, 2012