COURT FILE NO: 226/10 (Guelph)
DATE: 2012 05 08
AMENDED DATE: 2012 05 24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ARTHUR DAVID WALPOLE
Applicant
– and –
JUDY ELIZABETH WALPOLE
Respondent
Self-Represented
R.K. Bickle, for the Respondent
AND BETWEEN:
COURT FILE NO: 44/11
VIVIEN JEAN WOLFENDEN
Plaintiff
– and –
ARTHUR DAVID WALPOLE
and
JUDY ELIZABETH WALPOLE
Defendants
B. A. Gray, for the Plaintiff
Self-Represented
R. K. Bickle for the Defendant, Judy Elizabeth Walpole
HEARD at Guelph: May 2 and 3, 2012
Langdon J.
[1] This divorce application and the second entitled action were heard together because their subject matters are inextricably interwoven.
[2] Arthur David Walpole (Arthur) and Judy Elizabeth Walpole (Judy) were married May 17, 1975. Arthur is now almost 60 and Judy is almost 59. Their three children are independent adults. They separated sometime between June and October 2008, the precise date being of no consequence to the issues.
[3] Arthur began this application March 29, 2010. In it, he claimed a divorce, equalization of net family property, and a sale of the former matrimonial home at 375 Garafraxa Street West, in Fergus, now Centre Wellington Township, Ontario, (the home property).
[4] Judy filed a responding application claiming divorce, equalization of net family property, exclusive possession of the matrimonial home, and spousal support.
[5] The marriage was a fairly traditional one. Both acquired B.A. degrees early on and began employment. As children were born, Judy gradually became a stay-at-home mother. As the children matured she gradually re-entered the workforce.
[6] Arthur’s most significant recent employment was with the Centre Wellington Roads department. He was a labourer. He held that post for some 10 years. On December 20, 2011, he was convicted of impaired care and control of a motor vehicle and lost his driver’s licence. His employer had no work for him that did not require him to hold a driver’s licence. He was given the option to resign or be terminated. He chose the former, a choice which has led him into conflict with the Employment Insurance bureaucracy. In the last years before his termination, his earnings from employment were in the range of $50,000.00 per annum.
[7] Arthur has had no success in finding employment for which he is suited by training or experience. At the time of the trial, he had finally acquired a casual labouring job with a vineyard in the St. Catharines’ area, where he now resides. He is paid $9.00 per hour and has had two paycheques amounting in all to somewhere between $1,000.00 and $1,100.00. He is behind in all his financial obligations and manages to survive with help from his current partner.
[8] In recent years, Judy had found employment in her area of expertise, graphic design, and earned, approximately, in 2008, $38,500.00, in 2009, 43,600.00, and in 2010, $38,600.00. The 2009 figure was higher than average because of a severance payment she received when she lost her 2009 employment due to a downsizing. She has not been able to secure replacement employment in her area of expertise. Her 2011 earnings were only $19,000.00. She has recently taken a part-time position with a local church that promises to provide approximately $18,000.00. She can supplement that income by taking a boarder into the home property. She has applied for another part-time job.
[9] Both Arthur and Judy are hard working. There is no issue of malingering. For purpose of support calculations, Mr. Bickle for Judy suggested that I place their current earning potentials at $50,000.00 for Arthur and $25,000.00 for Judy. Arthur opposed any such attribution because he cannot possibly earn anything like $50,000.00 unless he is able to replace his former position, a task that is impossible at least until December 2012, when he is eligible to have his driver’s licence reinstated. However, Mr. Bickle argues that I am obliged to impute to him his former income, because his termination was precipitated by his own voluntary acts.[^1] Even if Arthur has his driver’s licence reinstated, it is problematical whether he will be able to find a similar job with earnings in the area of $50,000.00. I will return to the question of imputing income and spousal support.
[10] After Arthur left the home property in October 2008, he voluntarily contributed $1,000.00 per month to Judy for some 20 months. That sum was reduced to $700.00 per month in 2010, then to $500.00 for one month, and then to $300.00 in 2011 (for 9 months). In 2012, he has paid only $300.00. In total, since separating, he has contributed $22,824.00.
[11] The parties had three principal assets, the home property, Arthur’s pension and Judy’s RRSPs. The pension was evaluated as of the date of separation at $43,500.00. Judy had RRSPs at that date amounting to some $16,500.00, all of which were eventually cashed in order to meet ongoing expenses. These assets and other miscellaneous assets, not including the home property, have been accounted for in the net family property statement filed by Mr. Bickle, which I accept as fair and appropriate. Arthur owes Judy an equalization payment of $20,792.12.
[12] The home property is the bone of contention in both proceedings. It is the asset that binds the two proceedings together. Arthur and Judy bought it in September 1984. It was the family home in which they and their three children resided. In the late 90’s, Judy found herself travelling constantly back and forth between Fergus and St. Catharines where her ailing parents resided. Eventually, the families reached a decision that Judy’s parents would sell their St. Catharines home and move into a self-contained apartment, the “granny flat”, to be constructed as an addition to Walpole home property in Fergus. The funds for this construction were to be provided by Judy’s parents from the sale of their St. Catharines home. Judy’s father passed away soon after their home was sold. Her mother, Vivien Jean Wolfenden, is the plaintiff in the second-titled action. She moved to Fergus and took up residence in the granny flat that was built as an addition to the home property. It is not disputed that she contributed the $138,000.00 that it cost to complete construction.
[13] When the granny flat was constructed the home property was subject to an existing first mortgage of some $78,000.00.
[14] In order to outline their respective rights and obligations regarding the granny flat, Vivien and Arthur and Judy went to the lawyer who had done the conveyancing for the acquisition of the home property. He drew, and the parties signed, Ex. A-20 on March 8, 2000. I refer to this as the granny flat agreement.
[15] The principal provisions of the agreement were:
Vivien was to pay for the construction.
The value added by virtue of the addition was the property of Arthur and Judy who had no obligation to repay it to Vivien.
Arthur and Judy were to be responsible to pay the existing first mortgage of $78,000.00. That mortgage was to be “life insured”.
Vivien was to pay for any home nursing or homemaker services she required out of her own resources.
The three parties were to share operating costs of the home property such as utilities, fire insurance, but not the mortgage.
Arthur and Judy were “to assist Vivien in her day to day requirements with a view to enabling her to reside in the property for as long as shall be reasonably possible, having regard to [her medical requirements] and the ability of Arthur and Judy to continue to provide the care and support that may become necessary.”
“The parties acknowledge that the purpose of the foregoing arrangements is to preclude entirely or for as long as is reasonably possible the requirement for accommodation in a senior citizen’s residence, nursing home or other similar institutional facility for [Vivien]”.
[16] Arthur testified that when the agreement was signed he knew, and he claimed both Judy and Vivien knew, that his marriage was in difficulty and might not survive. Vivien said she knew that Arthur was sometimes irascible but claimed not to be aware that the marriage was in serious jeopardy. I accept her testimony. I find also that Judy was well aware of difficulties in the marriage, (they had been to counselling), but I do not think she was as pessimistic about its prospects as Arthur was. He remained in the marriage for nearly eight more years. It is noteworthy that if Arthur was, indeed, contemplating ending the marriage, he apparently made no mention of it to the solicitor and did not cause to be placed in the agreement any termination date or any provision for bringing about a termination of the parties’ obligations.
[17] One thing is clear from the agreement. It was a long-term arrangement. Vivien was born September 18, 1927. She was 72 when the agreement was signed. She is now 84 and going strong. She paid her consideration for the obligations of Arthur and Judy up front, and left herself no means to recover it. In return for the $138,000.00 she contributed, she became entitled to a residence for life, or at least for as long as she could manage, with help from Arthur and from Judy, to remain in the home property.
[18] I concluded shortly after closing argument began that Arthur and Judy had continuing obligations under this agreement that were utterly inconsistent with a sale of the home property. I ruled accordingly so that the parties could focus their submissions as to the other issues in the light of that determination.
[19] That said, late events have placed Vivien’s “equity” in the matrimonial home in potential peril. I use “equity” in quotes because, while she gave up any claim to recover the value she added to the property, or the funds she invested, she did contract for an occupation licence of indefinite duration. When I refer to her “equity”, I refer to this occupation licence.
[20] In or about 2007, Arthur and Judy took out a new mortgage, originally with Canada Trustco or TD Bank, but later with MacQuarie Financial Ltd. This mortgage was for $200,000.00. Out of its proceeds they obviously paid off the original mortgage for $78,000.00 that had been on the property when the granny flat was built. Then in January 2008, they placed a second mortgage on the property with Laurentian Bank, to secure a line of credit. That mortgage was for $63,250.00. The line of credit has been fully advanced.
[21] The uncontroverted evidence is that the home property has a value of $330,000.00. Arthur’s belief that the value might be as high as $450,000.00 was wishful thinking, and, in any event, was based on hearsay.
[22] Vivien’s “equity” was originally subject only to the $78,000.00 mortgage. Now it is subject to the $194,000.00 (approximately) outstanding on the first mortgage and the $63,500.00 outstanding on the second mortgage. If one allows for disposition costs of $16,500.00 (5% commission), legal costs of $900.00, outstanding municipal taxes of $4,279.00, it becomes apparent that the remaining equity in the home property is only $77,800.00. That is all that remains to answer for Vivien’s occupation licence.
[23] Soon after this refinancing was accomplished, Arthur left. Since he departed in October 2008, he has contributed only $22,824.00 to Judy, whether it be characterized as spousal support or as in fulfilment of his obligations to maintain the home property for Vivien’s benefit.
[24] In that same period of time, Judy has had to pay a total of $85,793.09 to maintain the property. This sum is comprised of mortgage payments, property taxes, (paid in part only), life insurance premiums on both policies, fire insurance, and major repairs. Arthur is responsible for half this sum, or roughly $42,965.45. He paid $22,824.00 and is behind $20,141.45 in his financial obligations under the granny flat agreement. This sum needs to be adjusted because Judy has been unable to pay municipal taxes in the last two years. She is behind $4,279.00. Half this sum, approximately $2,240.00, must be added to Arthur’s “arrears”
[25] If his payments are allocated thus it will be apparent that he has paid no spousal support since the date of separation. One must recognize that, in purely practical terms, any payment made to maintain the home property inured to the benefit of both Vivien and Judy who has always resided there. Any payment that Arthur makes toward his obligations under the granny flat agreement, has the practical effect of a spousal support payment too.
[26] As to any arrears of spousal support, I have decided not to award any sum. First, I doubt I have any authority to award any sum referable to the period before the date of the application, March 29, 2010. Second, since the application, Judy has not applied for interim spousal support.
[27] As to ongoing spousal support, I return to the argument that Arthur must have an income imputed to him of $50,000.00. Judy’s income, or earning potential, is accepted at $25,000.00. Based on the DivorceMate calculation filed by Mr. Bickle, he asks that I award at least the low range sum provided by the spousal support advisory guidelines, $781.00 per month. Absent an award of arrears, such payment should begin no later than May 1, 2012. However, Arthur now in fact has little or no present prospect of employment that might place him even in the same income range as Judy. As a practical matter, if I order support to begin now, as Mr. Bickle argues, I will saddle Arthur with a minimum of 8 months arrears by the end of 2012. At that time, he should just about have his driver’s licence reinstated. Naturally, by that time, as well, F.R.O. will just about be ready to begin enforcement. Arthur will have no means then of finding $6,248.00 and no means even of making a meaningful contribution to that sum. The likely result is that, just as Arthur regains his driver’s licence, F.R.O. will likely begin proceedings to confiscate it. Arthur then will have to apply for a refraining order, a task that he can ill-afford to do. If he fails, then he will never be able to find employment for which he is suited by training or experience; and he will never have the means to pay spousal support. Even if he does succeed in finding employment at his former rate, the accumulated arrears would place a practically impossible burden on him.
[28] The theory of the law, as currently argued by Mr. Bickle, is all well and good. I am well aware of the reasons why he argues Arthur should be deemed to be continuing to earn $50,000.00 per year. I am, however, able to make a practical distinction, if not a principled one, between a man who quits employment deliberately in order to frustrate his spouse’s claim to support, like Mr. Mubili, [^2] and a man who loses his employment because of a conviction for impaired driving, like Mr. Greares, the man referred to by Bean Prov. J., at paragraph 5 of Harris v. Watson [^3]. Whatever else may be said about drinking and driving, few people deliberately seek to be convicted of it. The consequences of the conviction have already financially devastated Arthur. It is a fact that Arthur did not deliberately lose his job in order to frustrate Judy’s support claim. Yes, he lost his driver’s licence and his job, owing to his own probable stupidity or negligence, but there was not the same intent behind what he did and what Mr. Harris did. Arthur’s performance in the realm of spousal support has been less than perfect, but he paid without any formal order or agreement for years. He paid what he thought he could. He is a decent and responsible man and he will pay if he is able. The question is whether I should slavishly follow the “principled approach” as stated in Harris, and place Arthur in an impossible situation, from which he would likely never be able to recover, a situation that would likely frustrate his eventual ability ever to pay spousal support, or make a practical distinction that gives him a brief “spousal support holiday”, but supports an eventual realistic possibility of his being able to pay spousal support. I am not bound by either the Harris or the Greares decisions. The decision of Murray J. in Zinyama-Mubili v. Mubili, deals, not with impaired driving, but with a deliberate choice to terminate employment. On the facts before me, the spousal support holiday is the lesser of the two evils, especially in a case where the payor by his conduct throughout has demonstrated a willingness, even imperfect, to honour his obligations. It does not strain statutory interpretation too far to rule that Arthur, in his present circumstances, has not the present ability to pay spousal support. Even if I order Arthur to begin paying when he acquires his driver’s licence, say January 1, 2013, is stretching the point.
[29] I decline to impose a debt of $6,248.00 on Arthur when he has no reasonable prospect of ever having the ability to pay it. He will be fortunate indeed if he is ever able to find employment for which he is suited by training or experience that yields $50,000.00 per year.
[30] That said, Judy is entitled to spousal support in this traditional situation and, in addition, she has fulfilled Arthur’s duty to Vivien under the granny flat agreement since he left in 2008. She has even been scrupulous to keep up the premiums on the life insurance policies of both herself and Arthur. These protect her mother’s occupation licence in the home property.
[31] The Mercantile Law Amendment Act, [^4] provides:
Right of sureties paying the principal debt, etc., to assignment
- (1) Every person who, being surety for the debt or duty of another or being liable with another for any debt or duty, pays the debt or performs the duty is entitled to have assigned to the person or to a trustee for the person every judgment, specialty or other security that is held by the creditor in respect of the debt or duty, whether the judgment, specialty or other security is or is not deemed at law to have been satisfied by the payment of the debt or the performance of the duty. R.S.O. 1990, c. M.10, s. 2 (1). [Emphasis added.]
Remedies on such assignment
(2) Such person is entitled to stand in the place of the creditor, and to use all the remedies and, on proper indemnity, to use the name of the creditor in any action or other proceeding in order to obtain from the principal debtor, or any co-surety, co-contractor or co-debtor, indemnification for the advances made and loss sustained by such person, and the payment or performance made by the person is not a defence to such action or other proceeding by the person. R.S.O. 1990, c. M.10, s. 2 (2).
What one co-surety, etc., may recover from another
(3) No co-surety, co-contractor or co-debtor is entitled to recover from any other co-surety, co-contractor or co-debtor more than the just proportion to which, as between themselves, the last-mentioned person is justly liable. R.S.O. 1990, c. M.10, s. 2 (3).
[32] I do not think that it strains the wording of the statute to rule that Judy, having fulfilled hers and Arthur’s obligations to Vivien under the granny flat agreement, is entitled to recover half her contributions, which she made for both of them, from Arthur. Certainly, on any theory of unjust enrichment, Arthur should be required to reimburse Judy for what she paid in his behalf.
[33] Now Judy, understandably, did not defend Vivien’s action. Nor did she cross-claim against Arthur. She is in default. However, because the payments that Arthur should be making under the granny flat agreement to support the home property, where Judy resides, they thereby acquire the character of spousal support. I consider that it is equitable to order him to pay his “arrears” to Judy and to continue contributing to his liability under the granny flat agreement while Vivien remains there. While his duty to pay spousal support may depend on ability to pay, his liability to Vivien, and consequently to Judy when she fulfills his liability on his behalf, depends on contract and his ability to pay is immaterial to any recovery on the contract claim.
[34] While Arthur’s inability to pay spousal support may justify a spousal support holiday under the Family Law Act, it does not relieve him of his contractual liability to Vivien and to Judy under the granny flat agreement.
[35] The life insurance policies, each for $250,000.00, Ex. A-32, with Sun Life Financial, policies H1466207 and F9407356, on the lives of Judy and Arthur respectively, are an important safeguard for Vivien’s occupation licence. Judy has been the responsible partner and has maintained these policies in good standing as required under the granny flat agreement; if left to Arthur, they would surely have lapsed.
[36] I propose to order that Judy and Arthur shall both have the continuing obligation to keep these policies in good standing. Judy shall be the custodian of the policies and shall administer the payment of premiums.
[37] I also will order that Arthur and Judy forthwith execute all necessary documents to alter the beneficiary provisions of both policies as follows. I have assumed that Arthur is the beneficiary under policy H1466207 and that Judy is the beneficiary under policy F9407356. This arrangement as to beneficiaries shall be amended so that Vivien, if alive at the time of the death of the life insured, shall be a joint beneficiary on each policy jointly with the present beneficiary. If she survives the life insured, the policy proceeds shall be paid to the two beneficiaries in trust to be applied first in or toward satisfaction of any encumbrances or tax arrears that may be owed by the policyholder and may be charged against the home property as described above, and also to pay the lien that Vivien holds, unless she continues to reside in the granny flat when the death occurs.
[38] The encumbrances I refer to in paragraph 37, shall include mortgages extant at the relevant date, arrears of municipal taxes, and the lien on the home property that I create in paragraph 42 in favour of Vivien to protect her occupation licence, if she no longer lives in the granny flat at the time of the death of the life insured. The face value of that lien shall be $74,200.00, but the actual value thereof, at any time, shall be computed in accordance with paragraphs 40 and 41 of this decision.
[39] As to Vivien’s claims against Arthur and Judy, it is clear that Judy has done her best to fulfil her obligations to her mother. She has answered for Arthur’s default as far as she was able. The question remains, what can be done to protect Vivien if, despite her best efforts, Judy cannot keep up her payments and a sale is forced by a mortgagee or by the municipality on account of outstanding taxes. This is far from a moot issue. Since Vivien has chosen to sue under the agreement, she can achieve but one judgment. How is the court to calculate her damages? First, I grant the lien referred to in paragraph 29. The value of that lien I calculate as follows.
[40] I have decided to predict a life expectancy for Vivien of 99, or until the year 2026. When she took possession of the granny flat in about 2000, she was 73. The anticipated “life” of the granny flat agreement is thus (99-73 = 26) twenty-six years. Vivien invested $138,000.00 which amounts to an annual expenditure, over the life expectancy I have assigned to her [^5], of approximately $5,300.00 per year. If she is dispossessed by reason of any default on the part of Judy or Arthur in fulfilling obligations related to the home property, she should receive a payment equal to $5,300.00 for each full or part year by which her occupancy amounts to fewer than 26 years computed from the year 2000.
[41] By way of example, if a mortgagee takes possession of the home property in 2012, by reason of default by Judy and or Arthur in relation to the obligations they have to fulfil to keep the property, then Vivien should have judgment against them for $5,300.00 x (2026-2012) 14 = $74,200.00.
[42] I will order that Vivien has a lien on the home property, municipally known as 375 Garafraxa St. W., Fergus, (Part of Block 4, Westwood Farm, Plan 77, Township of Centre Wellington, formerly Town of Fergus, as described in registered instrument Number ROS388710 dated 1984/09/11), [^6] in the sum of $74,200.00, such sum to be reduced by $5,300.00 for each full calendar year, after December 31, 2012, during which Vivien remains in possession of the home property, provided that if Vivien dies while in possession of the home property, no sum is payable. This lien may be filed on the title to the home property.
[43] In the result, I make the following orders:
Divorce judgment to issue.
Arthur’s claim to sell the home property is dismissed.
Judy is awarded exclusive possession of the home property, subject to the occupation licence granted to Vivien under Ex. A-20, (the granny flat agreement).
Arthur shall pay to Judy an equalization payment of $20,792.12.
Arthur shall repay to Judy arrears of his obligations under Ex. A-20 of $22,381.45 which she has paid on his behalf.
As complete fulfilment of Arthur’s obligations to Judy under sub-paragraphs 4) and 5) above, I hereby order the vesting of his interest in the home property in Judy. Counsel shall provide me with a registerable legal description of the property and I will append it as Schedule A to this decision.
Arthur shall pay to Judy spousal support of $600.00 per month commencing May 1, 2012. [^7]
Arthur and Judy shall notify each other forthwith of changes to their employment and shall provide proof of their remuneration in any new employment by disclosing a representative paycheque stub.
Arthur and Judy shall file their income tax returns on time, and shall, on or before June 1, annually, provide to the other a copy of his or her previous income tax year’s tax return. Each shall provide to the other copies of all income tax notices of assessment received within two weeks of receipt.
Annually on July 1, beginning in 2013, the spousal support payable by Arthur shall be adjusted in accordance with the low range suggested by current spousal support advisory guidelines, based on the documents referred to in paragraphs 8 and 9, above, but in no event shall it be reduced below $600.00 per month unless Arthur shall have acquired from Vivien a release under Ex. A-20 or unless Vivien dies.
If a sum payable for spousal support is more than $600.00 per month, Arthur and Judy shall co-operate to sign and file forthwith with F.R.O. the documents necessary, so that F.R.O. can properly enforce the support sum that is currently in effect.
Vivien has a lien on the home property, municipally known as 375 Garafraxa St. W., Fergus, (Part of Block 4, Westwood Farm, Plan 77, Township of Centre Wellington, formerly Town of Fergus, as described in registered instrument Number ROS388710 dated 1984/09/11), in the sum of $74,200.00, such sum to be reduced by $5,300.00 for each full calendar year, after December 31, 2012, during which Vivien remains in possession of the home property, provided that if Vivien dies while in possession of the home property, no sum is payable. This lien may be filed on the title to the home property.
Judy and Arthur shall both have the continuing obligation to keep Sun Life Financial policies H1466207 and F9407356 in good standing. Judy shall be the custodian of the policies and shall administer the payment of premiums. I also will order that Arthur and Judy execute forthwith all necessary documents to alter the beneficiary provisions of both policies as follows. (I have assumed that Arthur is the beneficiary under policy H1466207 and that Judy is the beneficiary under policy F9407356.) This arrangement shall be amended for each policy so that Vivien, if alive at the time of the death of the life insured, shall be a joint beneficiary on each policy with the present beneficiary. If she survives the life insured, the policy proceeds shall be paid to the two beneficiaries in trust to be applied first in or toward satisfaction of any encumbrances that may be owed by the policyholder and may be charged against the home property as described above, and any municipal tax arrears and the lien I have created in favour of Vivien, if she does not reside in the granny flat when the life insured dies.
S.D.O. to issue provided that enforcement of the $600.00 per month spousal support payment, and of any arrears thereof, is stayed until no later than March 1, 2013.
I make no order in respect of Arthur’s pension with O.M.E.R.S.
[44] While Arthur is a decent man, when confronted with problems, he has chosen throughout to bury his head in the sand. As far as he could, he simply left problems to be dealt with by Judy. He paid her sums of money that he felt he could afford without making a proper inquiry whether they were sufficient to compensate her for her obligations. Judy should have her costs of these proceedings on a partial indemnity basis, (subject to any offers that have been exchanged). Following the postjudgment hearing of May 24, 2012, of which Arthur was notified, I award substantial indemnity costs against him in favour of Judy from the date of her offer to settle. I fix those costs at $22,418.27 and assess that, of those costs, the sum of $11,400.00 was referable to Judy obtaining an award of spousal support. The portions of this decision that were changed as a result of the postjudgment hearing, are written in italics.
[45] Vivien is entirely innocent in these circumstances and has been forced to take proceedings to protect the fact that she trusted both parties and paid her dues up front.
Judy did not defend. Vivien should have substantial indemnity costs throughout against Arthur. (Again, subject to any offers that may have been exchanged.) I fix these costs at $12,784.64.
“original signed by Langdon J.”
Langdon J.
Released: May 8, 2012
Amended: May 24, 2012
SCHEDULE "A"
375 Garafraxa Street West, Fergus, Ontario, N1M 1C6, legally described as PT BLK 4 W WOOD FARMS PL 77 Fergus as in ROS388710; Centre Wellington PIN 71385-0311.
COURT FILE NOS.: 226/10 AND 44/11 (Guelph)
DATE: 2012 05 08
AMENDED DATE: 2012 05 24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ARTHUR DAVID WALPOLE
Applicant
- and –
JUDY ELIZABETH WALPOLE
Respondent
A N D B E T W E E N
VIVIEN JEAN WOLFENDEN
Plaintiff
- and –
ARTHUR DAVID WALPOLE
and JUDY ELIZABETH WALPOLE
Defendants
REASONS FOR JUDGMENT
Langdon J.
Released: May 8, 2012
Amended: May 24, 2012
[^1]: Harris v. Watson, 1981 1228 (ON CJ), 1981 CarswellOnt 691, 34 O.R. (2d) 495, especially at ¶ 5, Bean Prov. J., followed and approved by Murray J. in Zinyama-Mubili v. Mubili, 2011 CarswellOnt 1203, 2011 ONSC 1227, [2011] W.D.F.L. 3335, at ¶ 37. [^2]: See footnote 1. [^3]: See Footnote 1. [^4]: R.S.O. 1990, c. M.10 [^5]: I do not claim that this life expectancy is supportable by any actuarial table. I have arbitrarily assigned it as a satisfactory means of protecting Vivien’s occupation licence. [^6]: The legal description to be incorporated in the judgment should be one that is registerable in the appropriate Land Registry Office. The words of the formal judgment may be appropriately amended from those that appear here. [^7]: This sum amounts to what Arthur, based on the cost history of the home property, will have to continue to pay to Judy to compensate her for fulfilling his duties to Vivien under the Granny flat agreement. I am ordering that it be paid as spousal support because of its unique character as a contribution to the residence of both Vivien and Judy. However, because I would not order spousal support simpliciter in view of Arthur’s current financial circumstances, I propose to forbid enforcement by F.R.O. until after Arthur has had an opportunity to find employment for which he is qualified by training and experience. If I refuse to treat this payment as spousal support, then I must leave Judy to sue Arthur every two years in order to recover her expenditures on his behalf. This would be unrealistic in the circumstances. Naturally, Judy’s acceptance of these monies requires her to continue to maintain the home property for Vivien.