ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-11-0307
DATE: 2012-04-16

B E T W E E N:

RUBY WIEBE,

Robert E. Stead , for the Applicant

Applicant

• and -

LYLE GUSHULAK,

Sarah Trach , for the Respondent

Respondent

HEARD: April 12, 2012, at Thunder Bay, Ontario

Mr. Justice D. C. Shaw

Decision On Motion

[ 1 ] The applicant, Ruby Wiebe, brings a motion for a temporary order that the respondent, Lyle Gushulak:

(a) pay her spousal support within the range suggested by the Spousal Support Advisory Guidelines (SSAG’s);

(b) maintain coverage for her under his extended health care plan; and

(c) designate her as the sole beneficiary of the insurance that he has on his life through his employment.

[ 2 ] Mr. Gushulak consents to an order with respect to (b) and (c). With respect to spousal support, he does not contest Ms. Wiebe’s entitlement but submits that the amount to be ordered be less than the amounts suggested by the SSAG’s .

[ 3 ] The parties were married on January 20, 1992. They separated on October 8, 2009. Ms. Wiebe has two children, ages 26 and 22, from a previous relationship. The children resided with the parties and legally took on the surname of Mr. Gushulak. However, because of their ages, there is no claim for child support.

[ 4 ] Ms. Wiebe is 48 years of age. Mr. Gushulak is 47 years of age.

[ 5 ] Ms. Wiebe and Mr. Gushulak resided in the District of Kenora. Mr. Gushulak remains in the matrimonial home in Vermillion Bay, Ontario. Ms. Wiebe moved to Thunder Bay. In December 2011 she moved to Scarborough, Ontario.

[ 6 ] Mr. Gushulak resides with a new partner and his new partner’s child. Ms. Wiebe resides by herself.

[ 7 ] Mr. Gushulak is employed by Domtar Pulp And Paper Products Inc. in Dryden, approximately 50 kilometres from Vermillion Bay. He has been employed at the same mill since 1992, the year in which the parties were married. His income for 2011 was $68,448.30.

[ 8 ] Ms. Wiebe worked full-time from 1992 until 2006. From 2006 until November 25, 2011, she worked part-time and also received employment insurance benefits. Her most recent employment in Thunder Bay, from June 2, 2011 to November 5, 2011, was with Wal-Mart, part-time, where she earned $11.40 per hour. Her income for the past four years is as follows:

2008 $5,813.00

2009 $23,168.00

2010 $30,824.31

2011 $20,960.00.

[ 9 ] Ms. Wiebe deposed in her affidavit sworn January 17, 2012, that she anticipated working at Wal-Mart in Scarborough as an Associate in the meat department, commencing January 27, 2012, at a wage of $11.40 per hour for a 37 hour week. This would result in an annual income of $21,993. This is the most current income information presented by Ms. Wiebe. She hopes to work her way into a management position.

[ 10 ] Based on respective incomes of $68,448.36 and $21,993.00, and 17 years of cohabitation, the low, mid and high range of monthly spousal support suggested by the SSAG’s is $988, $1,153 and $1,318, respectively. Ms. Wiebe requests spousal support at the mid-range.

[ 11 ] Mr. Gushulak submits that the range suggested by the SSAG’s should not be followed and that he should pay spousal support of $750.00 per month. He gives three reasons for his position:

(a) the delay of two years between the date of separation and Ms. Wiebe’s application for support;

(b) Ms. Wiebe’s decision to terminate her employment in Thunder Bay in 2011 and move to Scarborough; and

(c) the fact that he assumed the parties’ joint debts of $47,6213.

[ 12 ] I do not find any of the three reasons put forward by Mr. Gushulak to be compelling.

A. Delay

[ 13 ] Mr. Gushulak has not presented any evidence that he has been prejudiced by the fact that Ms. Wiebe did not claim spousal support until two years after the parties separated. The claim on the motion before me is not for support retroactive to the date of separation. Ms. Wiebe seeks support commencing in November 2011 when her application claiming support was served. Mr. Gushulak concedes that Ms. Wiebe is entitled to support. He has paid no support since the parties separated, other than a voluntary payment of $750 in January, 2012, which was negotiated by the parties’ solicitors pending the hearing of the motion. Ms. Wiebe has an explanation for her decision not to pursue her claim for spousal support, namely that she was too fearful of the respondent to pursue support. The equitable doctrine of laches was not pleaded, but even if it had been, I would not have found the delay unreasonable. I was not referred to any authorities in support of the proposition that delay should serve to take spousal support below the SSAG’s suggested range.

B. Ms. Wiebe’s decision to terminate her employment in Thunder Bay

[ 14 ] In view of the fact that I have imputed to Ms. Wiebe the same income which she had been earning at Wal-Mart in Thunder Bay, her decision to leave Thunder Bay and to take employment at Wal-Mart in Scarborough is of no consequence in determining the appropriate quantum of support.

C. Mr. Gushulak’s assumption of joint debts

[ 15 ] The joint debts of $47,613 assumed by Mr. Gushulak include the parties’ mortgage on the jointly owned matrimonial home, in the sum of $35,887. Mr. Gushulak has resided in the matrimonial home since separation. It is therefore only fair that he pay the modest mortgage on the home. He shows mortgage payments of $480 per month. The balance of the joint debts, in the form of a loan and a line of credit, total $11,726.98. Mr. Gushulak’s Financial Statement does not show any monthly payments on those joint debts. While the assumption of joint debts may be a factor in assessing spousal support, the relatively small amount of the joint loan and line of credit moderates the impact of this as a factor.

D. Other factors

[ 16 ] Mr. Gushulak’s Financial Statement does not list deductions for income tax, Canada Pension Plan and employment insurance premiums. His counsel advises that those deductions total about $17,000 per year. If they are included, Mr. Gushulak’s Financial Statement shows that his expenses roughly equal his income.

[ 17 ] He states that his new partner contributes $500 per month toward household expenses. Those expenses include $755 in direct expenses for his partner’s child. Presumably, this would mean that Mr Gushulak’s expenses are reduced by this $500.00 per month contribution.

[ 18 ] Mr. Gushulak’s Financial Statement also shows the following monthly expenses:

• alcohol and tobacco $600

• hair care and beauty $100

• gifts $150

• vacations $100

• gas and oil $650.

[ 19 ] In my view, when one takes into consideration the $500 contribution from Mr. Gushulak’s partner and the reasonableness of paring down some of the above expenses, there is room for Mr. Gushulak to be able to pay support within the SSAG’s suggested range, rather than in the amount of $750 per month which he contends would be appropriate.

[ 20 ] I am satisfied that the SSAG’s provide an appropriate result in this case. On the assumption that Mr. Gushulak has assumed monthly payments on the joint loan and joint line of credit of $11,726.98, spousal support should be towards the lower, rather than upper end of the range.

[ 21 ] Mr. Gushulak shall pay interim spousal support of $1,050 per month. Payments shall commence on December 1, 2011. Mr. Gushulak shall receive credit of $750 to reflect his one time voluntary support payment in January 2012. This sum of $750 shall be credited by the Family Responsibility Office on account of this support order.

[ 22 ] An order shall also go on consent that Mr. Gushulak maintain coverage of Ms. Wiebe under his extended health care plan and that he shall designate her as the sole beneficiary of the policy of insurance he has on his life through his employment.

[ 23 ] Ms. Wiebe was successful on this motion. She shall have the costs of the motion fixed in the sum of $1,250, enforceable as support by the Family Responsibility Office.

[ 24 ] A Support Deduction Order shall issue.

_______ ”original signed by”_ ___

The Hon. Mr. Justice D. C. Shaw

Released: April 16, 2012

COURT FILE NO.: FS-11-0307
DATE: 2012-04-16

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: RUBY WIEBE, Applicant - and – LYLE GUSHULAK, Respondent DECISION ON MOTION Shaw J.

Released: April 16, 2012

/mls