ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 03-FP-286421
DATE: 2012-04-27

B E T W E E N:

CLIFTON ROY STEWART

In person

Applicant

• and -

FLORIZEL IMOGENE WILSON

Gabrielle Pop-Lazic, for the Respondent

Respondent

HEARD: November 30, December 1 and 2, 2011

GRACE J.

[ 1 ] Mr. Stewart commenced this proceeding on May 12, 2003. The parties had separated more than five years earlier. In her June 1, 2004 answer and counterpetition, [1] Ms. Wilson sought a net equalization of family property and spousal support of $300 per month.

[ 2 ] Eight and half years after its commencement and through no fault of Ms. Wilson’s current lawyer, this matter wheezed its way to trial. As the parties should know, the length of the proceedings was disproportionate to the amount of money in issue. They disagree about the allocation of the pieces of a rather small pie.

A. Background

[ 3 ] Ms. Wilson and Mr. Stewart were born in Jamaica in 1948. They started dating shortly after Ms Wilson emigrated from her homeland to Canada in 1970.

[ 4 ] They began to live together in 1971 and married November 24, 1973.

[ 5 ] Son Oronde (“Rande”) was born in 1974 and daughter Kiamisha (“Kia”) in 1978. Both were impressive witnesses at trial. Ms. Wilson has two other children: Claudia born in 1964 and Christopher born in 1967. They joined the family in Canada in 1976 and 1978 respectively.

[ 6 ] Mr. Stewart obtained employment at Coutts Hallmark Canada (“Hallmark”) [2] as a heavy equipment operator in 1971 and remained in its employ until its Canadian operations ceased in 2008.

[ 7 ] Ms. Wilson also worked intermittently outside the home but her career followed a very different path.

[ 8 ] During her early years in Canada, Ms. Wilson was hired to provide child care services and then worked in a factory making door frames.

[ 9 ] After the parties’ children were born, she obtained a string of factory jobs interspersed with periods cleaning homes or businesses.

[ 10 ] Their history of employment allowed the family to purchase a home in Markham, Ontario sometime in the late 1980s. There things unraveled.

[ 11 ] Ms. Wilson did not enjoy her time in Markham. She relied on public transit to get to and from work. The commute was long and difficult. Ms. Wilson felt isolated. In 1991, her employment as a provider of cleaning services at the Scarborough Town Center ended.

[ 12 ] According to Ms. Wilson, Mr. Stewart reacted badly. She testified that he would not speak to her.

[ 13 ] The loss of employment – and an apparent inability to obtain a replacement job - was ill-timed.

[ 14 ] The parties were financially over-extended.

[ 15 ] The mortgage on their home was in default. In or about November, 1991, the mortgagee exercised its right of possession. The family was evicted.

[ 16 ] Temporary accommodation was secured until Mr. Stewart negotiated terms which allowed a return to the Markham property. Mr. Stewart and the children of the marriage moved back into the matrimonial home. Ms. Wilson did not.

[ 17 ] She located and moved into a two bedroom apartment. However, Ms. Wilson visited the Markham home regularly. While there she attended to her family’s needs including meals, laundry and cleaning.

[ 18 ] The return to Markham by Mr. Stewart and the parties’ children was short lived. In 1993 there was a fire. The family further divided.

[ 19 ] The living arrangements thereafter are difficult to track. The parties maintained separate residences. For a time Mr. Stewart lived separate from Ms. Wilson and the children. It appears Rande and Kia lived with members of their extended family for short periods and at other times with Ms. Wilson. Primarily, however, they lived with Mr. Stewart during these years in an apartment the witnesses referred to as Bridletown.

[ 20 ] Ms. Wilson continued to play an active role in the lives of her children – and Mr. Stewart.

[ 21 ] That explains why the petition stated the parties began living separate and apart in April, 1998 rather than 1993.

[ 22 ] While Mr. Stewart tried to distance himself from the later date at trial, I will not allow him to do so. It is clear from the evidence that Ms. Wilson was a constant visitor to Bridletown. Mr. Stewart suggested the attendances were functional; necessitated by his struggle with depression and anxiety. However, that characterization is not fair or appropriate. Ms. Wilson often spent the night with Mr. Stewart at her side. Furthermore, Mr. Stewart made an unsuccessful attempt to move into the residence Ms. Wilson maintained when he moved from Bridletown in April, 1998. [3] Ms. Wilson’s apartment was not large enough to accommodate the family and their belongings.

[ 23 ] The parties did not cohabit again. Approximately five years later this proceeding started.

B. The Equalization Claim

[ 24 ] Ms. Pop-Lazic’s submissions on this issue were made on an alternative basis. She recognized that the sole asset to be equalized was Mr. Stewart’s pension which is now in pay. She requested, first and foremost, indefinite spousal support from the date the issue was raised by Ms. Wilson.

[ 25 ] The position taken at trial creates a thorny issue. As Epstein J.A. wrote in Greenglass v. Greenglass :

As a matter of law…the calculation of the division of assets and resulting equalization payment must always precede any support analysis. [4]

[ 26 ] Aside from Mr. Stewart’s pension and a small life insurance policy [5] , Mr. Stewart obtained by virtue of his employment, the parties did not acquire any significant asset while cohabiting except the Markham property. Sadly, it was lost.

[ 27 ] On June 22, 2009, Kim A. Maika of Pension Valuators of Canada delivered a pension valuation as at April 1, 1998. The author concluded the value of Mr. Stewart’s pension which accrued during cohabitation ranged from $71,833 based on a retirement age of 62 to $53,897 based on a retirement age of 65.

[ 28 ] Mr. Stewart was not eligible to receive his pension on an unreduced basis until he turned 62 on April 2, 2010.

[ 29 ] However, the Hallmark facility at which Mr. Stewart worked closed in 2008. Mr. Stewart was then 60 years old. Mr. Stewart had already elected to receive payments from his pension on a reduced basis when the valuation was prepared. According to the evidence, he began receiving monthly payments in the gross amount of $1,836.27 on October 1, 2008. [6]

[ 30 ] Ms. Pop-Lazic’s position was taken for practical reasons. Ms. Wilson clearly would have been entitled to an equalization payment under s. 5 (1) of the Family Law Act had the issue been raised and pursued on a timely basis.

[ 31 ] If granted, a judgment requiring an equalization payment would impact on the spousal support issue. However, I was given nothing which would allow me to address that effect.

[ 32 ] With some trepidation, I accept Ms. Pop-Lazic’s invitation to treat Ms. Wilson as if she had made only one request of this Court, namely, to award spousal support to Ms. Wilson.

[ 33 ] In passing I note a further issue. More than six years had passed between the date of separation on April 1, 1998 and the date of Ms. Wilson’s answer and counterpetition (June 1, 2004). The time limitation set forth in s. 7 (3) (b) of the Family Law Act was exceeded.

[ 34 ] I recognize the court may, on motion, extend the time if satisfied there are apparent grounds for relief, relief is unavailable because of delay that has been incurred in good faith and no person will suffer substantial prejudice. [7] In the context of the spousal support claim, Ms. Wilson was asked to address the issue of delay. Ms. Wilson attributed same to a combination of factors: a lack of financial resources, difficulty in obtaining legal aid, unresponsive counsel (until her current lawyer) and periods of depression.

[ 35 ] However, I was not asked to extend time under s. 2(8) of the Family Law Act . I turn to the issue of spousal support.

C. Spousal Support

[ 36 ] Section 15.2 of the Divorce Act gives the court broad power to order payment of a reasonable sum for spousal support on a lump sum or periodic basis, with or without security.

[ 37 ] The condition, means, needs and other circumstances of each spouse are to be taken into account including how long the parties cohabited and the functions performed during that time. [8] Any order made should recognize and address the positive and negative financial consequences of the marriage on the spouses before and after its breakdown. [9]

[ 38 ] I turn to the evidence.

[ 39 ] As indicated, the parties have always lived modestly.

[ 40 ] Prior to separation, Ms. Wilson had a series of low paying jobs. She contributed what she could to the family’s expenses. Ms. Wilson had principal responsibility for most of the day to day household tasks including cooking, laundry and cleaning. The impression that developed was this: Ms. Wilson was an excellent cook and fastidious housekeeper. Having seen and heard Rande and Kia, Mr. Stewart and Ms. Wilson have reason to be very proud.

[ 41 ] Sadly, Ms. Wilson was and is emotionally disconnected from the parties’ children. They seem respectful but estranged.

[ 42 ] After 1993 and despite the fact separate residences were maintained, Ms. Wilson continued to play an active role in the lives of Mr. Stewart and the children. That lasted for five years. Before the fire, she made regular visits to the Markham home and continued to cook, to clean and to do laundry. She also fulfilled that role at the Bridletown residence. Mr. Stewart testified that while there he suffered from anxiety and depression. Ms. Wilson’s visits were frequent, extended and needed.

[ 43 ] Mr. Stewart’s employment was far better paying and more secure. As already mentioned, Mr. Stewart maintained continuous employment at Hallmark from 1971 until 2008.

[ 44 ] It is clear from the evidence that Mr. Stewart contributed more than financially to the lives of the parties’ children. Rande and Kia’s close relationship to their father is not new. However, Ms. Wilson’s acceptance of primary responsibility for feeding and clothing them gave Mr. Stewart the opportunity to develop that bond.

[ 45 ] After separation, Mr. Stewart’s life improved economically. Three months after the parties’ separation, Mr. Stewart acquired a home in Pickering for $105,500. [10] He continues to own the property to this day. He was then earning approximately $41,000 per year. [11]

[ 46 ] I have no objective evidence concerning Mr. Stewart’s income for the period from 1999 through 2006. Mr. Stewart did not deliver a financial statement in these proceedings until ordered to do so in 2009. A copy of his April 20, 2009 financial statement was not in the continuing record but was filed at trial. [12] A direction to the Taxation Branch of the Canada Revenue Agency was referred to in but not attached to it.

[ 47 ] Mr. Stewart’s September 21, 2011 financial statement included an excerpt from his 2007 income tax return, a notice of reassessment for 2008 and a notice of assessment for 2009. During 2007, Mr. Stewart earned employment income of $46,627.32. In 2008, the Hallmark plant closed. Nonetheless he earned $56,941.

[ 48 ] I am satisfied that Mr. Stewart’s annual earnings ranged from approximately $41,000 to $56,000 between 1998 when the parties separated and 2008 when Mr. Stewart’s employment ended. [13]

[ 49 ] Mr. Stewart started to receive monthly pension payments of $1,836.27 in October, 2008. [14] He testified that he also began receiving Canada Pension Plan payments [15] but ceased earning income from any other source. Currently, Mr. Stewart receives monthly amounts of $1,844.62 from his Hallmark pension and $542.52 from the Canada Pension Plan.

[ 50 ] Mr. Stewart also receives a monthly amount from Rande who continues to live with his father. Rande testified that he pays Mr. Stewart between $200 and $300 per month and occasionally buys groceries or pays an outstanding household bill. Mr. Stewart said the amount paid is lower since Rande’s only source of income is a disability benefit and he has ongoing child support obligations. I am satisfied that on average Rande pays Mr. Stewart $300 per month. [16]

[ 51 ] Mr. Stewart testified he received a termination/severance payment in 2009 from Hallmark of approximately $48k which he rolled into a registered retirement savings plan.

[ 52 ] The figures provided by Mr. Stewart are impossible to rationalize with the notice of assessment he produced for 2009. It showed total and net income of $122,604 and $65,116 respectively. Unquestionably documentation exists with respect to any termination or severance payment. None was produced. Mr. Stewart did not produce any income tax information for 2010.

[ 53 ] The registered retirement savings plan shown on Mr. Stewart’s 2009 financial statement had disappeared by September 21, 2011. Mr. Stewart testified he used some of the money to purchase an automobile and paid various debts. That explanation is inconsistent with his 2011 financial statement. Car related expenses are listed but the corresponding asset is not. Mr. Stewart’s liabilities have increased by approximately $20,000 between 2009 and 2011. How? Mr. Stewart continues to list a 1994 debt which would have been discharged by his own bankruptcy in 1997. Suffice to say, I am dubious that Mr. Stewart has painted a complete or accurate picture of his financial situation.

[ 54 ] My concern extends to Mr. Stewart’s listing of monthly expenses. He swears they have grown by approximately $1,100 between June, 2009 and September, 2011. Some of that is attributable to the acquisition of a car. The monthly cost of electricity increased to $247 – almost 50% more than it was two years earlier. Monthly debt payments have increased from 0 to $521 per month. Mr. Stewart testified that the bulk of that amount related to unpaid taxes owing to the Canada Revenue Agency arising from the payment received following termination of his employment. I conclude that some of Mr. Stewart’s expenses were overstated.

[ 55 ] I turn to Ms. Wilson’s economic situation.

[ 56 ] Ms. Wilson tried to improve her skills and employability before separation. She successfully completed a health care aide program at Career Canada College in 1995. [17] She started working for nursing agencies on an hourly, part-time basis in September of that year. [18] Ms. Wilson has continued to provide personal and home support services since then. [19] She testified that at the time of trial she was working for Pace Independent Living 88 hours per month and earning $19.28 per hour without benefits. On occasion, she is able to supplement that income through agency placements.

[ 57 ] Ms. Wilson’s income tax returns confirm her modest earnings from employment.

[ 58 ] According to information drawn from her income tax returns for the period from 1998-2010, [20] Ms. Wilson received annual income ranging from approximately $10,000 to $25,500. [21] Most has been derived from employment. However, in most years that income was supplemented by employment insurance and/or social assistance payments. In 2010, Ms. Wilson reported annual income of $17,610 comprised of $13,034 from employment and $4,576 from the Canada Pension Plan.

[ 59 ] Ms. Wilson has struggled financially. She acquired a modest condominium in 2000. However, she became overburdened with debt. In May, 2004, she made an assignment in bankruptcy. Eventually, a mortgagee sold the condominium. An order requiring Ms. Wilson to pay $5,715 to her trustee in bankruptcy as a condition of discharge has not been fulfilled. [22]

[ 60 ] Aside from a brief three month period, Mr. Stewart has never paid spousal support despite constant pleas from Ms. Wilson. On occasion, Mr. Stewart has given Ms. Wilson small amounts of money for specific purposes. For example, it appears Mr. Stewart gave Ms. Wilson $100 when she had to travel to Jamaica to attend a family member’s funeral.

[ 61 ] According to her August 17, 2011 financial statement, Ms. Wilson spends approximately $1,957 but earns only $1,483 per month. While some of the listed items are – or should be – capable of adjustment, [23] the majority of the expenses appear reasonable.

[ 62 ] Where does this review leave us? First, I am of the view that Ms. Wilson is clearly entitled to spousal support. The duration of the relationship (27 years), the division of roles and responsibilities prior to separation and the history of primary financial dependence on Mr. Stewart’s income all support that conclusion.

[ 63 ] Second, spousal support should be paid from June 1, 2004 when Ms. Wilson raised the issue and indefinitely thereafter. [24] I am satisfied Ms. Wilson has made an effort to become financially self-sufficient. She has simply been unable to achieve that objective. Given the passage of time, the responsibilities of her occupation of choice and age, it is inconceivable she ever will.

[ 64 ] Third, in determining quantum, I have borne in mind the evidence concerning the parties’ condition, needs and means which I have already summarized.

[ 65 ] I have also considered other circumstances. One of those involves the closure of the Hallmark plant. While that event was beyond Mr. Stewart’s control, retirement at age 60 was a consequence he chose. That he feels he earned same after 37 years of employment is understandable. However, and with respect, that decision – as well as his use of his registered retirement savings plan – is evidence of the fact he has not grasped the reality that Ms. Wilson has earned a right to enjoy a reasonable standard of living. Nor has he grasped his moral – let alone legal – obligation. Mr. Stewart could and should have paid regular, monthly spousal support.

[ 66 ] Taking into account the factors and objectives set forth in s. 15.2 (4) and (6) of the Divorce Act , the evidence and the Spousal Support Advisory Guidelines , I conclude Mr. Stewart is obligated to pay monthly spousal support to Ms. Wilson as follows:

a) For the period from June 1, 2004 [25] to and including September 1, 2008 [26] , the sum of $375 per month; [27]

b) For the period from October 1, 2008 and continuing indefinitely thereafter on the first day of each month the sum of $300 per month.

[ 67 ] Those amounts are, in my opinion, reasonable.

[ 68 ] Mr. Stewart is to be given credit for the payments of $300 made on March 1, April 1 and May 1, 2009.

[ 69 ] Ms. Pop-Lazic requested that Mr. Stewart be required to designate Ms. Wilson as the beneficiary of a small ($10,000) life insurance policy Mr. Stewart mentioned in his evidence. According to Mr. Stewart, Rande and Kia are currently designated as the beneficiaries. I note the policy was not mentioned in either of Mr. Stewart’s sworn financial statements. Notwithstanding that fact, in my view the designation in favour of the parties’ children should remain unchanged.

[ 70 ] However, security should be ordered. As mentioned, Mr. Stewart failed to make voluntary payments on account of spousal support. The three mentioned earlier were made pursuant to an endorsement of Czutrin J. Mr. Stewart made no provision for a finding of entitlement he must have known would come. He depleted his registered retirement savings plan while the spousal support issue was being actively pursued.

[ 71 ] Section 15.2 (1) of the Divorce Act allows the court to require a spouse to secure and pay spousal support. Mr. Stewart owns a home. While he says it continues to be heavily encumbered, I am satisfied there may be equity now or in the foreseeable future. The property municipally described as #16A, 1360 Glenanna Road, Pickering, Ontario shall stand as security for amounts due or to become due on account of spousal support. That security is subject to pre-existing encumbrances granted prior to the date of these reasons in favour of a person with whom Mr. Stewart is at arm’s length and to encumbrances arising by operation of law. [28]

[ 72 ] Although not sought in the answer and counterpetition, Ms. Pop-Lazic asked for pre-judgment interest. Mr. Stewart should not be surprised that interest was sought. He has known of Ms. Wilson’s claim for years and made no provision for it. However, there has been significant delay in bringing this matter to a conclusion.

[ 73 ] Nothing was done between June 1, 2004 and approximately January 1, 2009. Taking into account the factors set forth in s. 130 (2) of the Courts of Justice Act, I have concluded pre-judgment interest should be awarded for the period from January 1, 2009 onward and at the rate of 1 % per annum.

D. Divorce

[ 74 ] The parties separated more than 14 years ago. Clearly there is no possibility of reconciliation. A divorce is granted. As contemplated by s. 12 (1) of the Divorce Act, the divorce shall take effect 31 days after judgment is rendered.

E. Costs

[ 75 ] In light of the result, Ms. Wilson is presumptively entitled to costs. Written submissions not exceeding four typed pages may be made by the parties. Those of Ms. Wilson are requested by May 15, 2012 and those of Mr. Stewart by May 31, 2012. They should be sent to me through Judges’ Administration, Court House, 12 th Floor, Unit K, 80 Dundas Street, London, Ontario N6A 6B2.

“Justice A.D. Grace”

Justice A.D. Grace

Released: April 27, 2012