COURT FILE NO.: FS-07-61402-00
DATE: 20120515
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
LLOYD ANDRADE
Frances M. Wood, for the Applicant
Applicant
- and -
ZALINA ANDRADE
Corinne Muccilli for the Respondent
Respondent
HEARD: February 29, March 1, 2, 5 and 12, 2012
REASONS FOR JUDGMENT
Lemon J.
Issues
[1] The parties require a determination of their date of separation, the validity of a separation agreement, the equalization payment and spousal support. To some extent, each of those issues factor into the determination of the other issues.
Background
[2] The parties were married December 31, 1980. Mr. Andrade says that they separated in 2006. Mrs. Andrade says that they separated in 2000. They have one child, Nathaniel, born April 1987. Mrs. Andrade also had a son by the name of Danny. He was 4 or 5 when the parties married and resided with them until he purchased a new home in 2004. I am not asked to resolve any legal issues relating to the children.
Was the date of separation in 2000 or 2006?
[3] Mr. Andrade submits that the parties separated in 2006. Although he denies a separation in 2000, if they did separate, he submits that they reconciled in 2001 and resided together until June 19, 2006. Mrs. Andrade submits that the parties separated July 23, 2000. From my review of the law and the evidence, I find that they separated July 23, 2000.
(a) Mr. Andrade’s Evidence
[4] Mr. Andrade entered his diary into evidence. He testified that he has kept a journal for most of his life. He tracks daily things that happen and says that it is nice to go back through them. He tried to make his entries daily but sometimes got behind. These were entries for interesting dates or dates that were important to him. Many of the entries in his diary were inconsistent with his evidence. Some of the entries appeared to be self serving for the benefit of his case. To the extent that they differ from his testimony, I have often relied on his diary entries. By and large, they do not assist his case.
[5] In the spring of 1998, Mr. and Mrs. Andrade were having problems with communication. Mrs. Andrade told him to leave and he went for a weekend to stay with some friends. He stayed there for a couple of days or a week and then returned home. The relationship continued.
[6] Mr. Andrade testified that he moved to Ottawa in June of 2000. A friend in his office told him that Mr. Andrade’s employer was closing and that he would not have a job when he came back from his vacation which started that week. Mr. Andrade’s diary says that this occurred on July 23, 2000.
[7] He did not tell Mrs. Andrade about the fact that he was going to Ottawa because he was not sure that he was going to stay. At this time, they had a lot of communication problems but in his view they were not separated. He did not think that moving away would be harmful to the marriage. He agreed that this move was an independent decision of his. He agreed that this was not a family decision. He did not tell Nathaniel or Danny ahead of time but did write Nathaniel a note about a week later.
[8] He took no clothes with him other than what was in his car. He thought that he would stay for the day and then the weekend; when that visit was extended, he bought clothes at the thrift store. He testified that he had not planned to stay and had therefore not packed anything. He did not intend to move to Ottawa. This was not pre-planned; rather, he only went there and then stayed for a year. He thought that he would simply go for the weekend, but he was offered a job while he was there. He decided to stay for a while to be sure that he had a job before he called Mrs. Andrade. He therefore did not have any contact with her for two weeks.
[9] Only after he found a job did he tell Mrs. Andrade where he was and that he had a job. His diary says that his first call with her was September 25, other than one on September 2, which was simply, “hello, nothing else I guess in tears”.
[10] He contacted Mrs. Andrade through his friend, Willy Kanga. He spoke to Mrs. Andrade by phone when she was at Mr. Kanga’s residence. She was upset and so was he and they did not speak very well. In any event, he advised her that he had a job in Ottawa. He needed his clothes and they therefore made arrangements to meet at a restaurant in Toronto. She brought his clothes to him.
[11] He did not go home that weekend because he found it painful to be there. He had no job in the Brampton area and he had little time to stay because he now had a job in Ottawa. He therefore was afraid to go home for fear he would stay.
[12] In October of 2001, he agreed to sign over the home to her to allow her to renegotiate the mortgage on better terms. I will deal with this event later in my reasons.
[13] They were in communication every couple of days and saw each other once a month when he made a trip back to Brampton. He then came home every four weeks. On two occasions, he drove back and forth and then he started to take the train. Mrs. Andrade picked him up at the train station and he spent the weekend. She took him back to the train station on Sunday. When he came for the weekend he stayed at their home. This remained the consistent pattern until he returned in 2001.
[14] When he decided to return in 2001, he told her that he was giving up the job and coming home. He did not think anything of her reaction but she seemed to be happy. She allowed him to use her van to bring his things home. Once he got home, everything was fine and the two of them got along quite well.
[15] He then obtained a job with a packing company. He was paid $12 an hour but the work was not consistent. He sometimes worked three days per week. With respect to household finances, he simply handed his cheque to Mrs. Andrade and she deposited it. He did not know where she deposited it. This went on until 2003 when they arranged that he would pay all of the utilities (heat, hydro, water, insurance, etc.) and she would pay for the mortgage. That arrangement continued until 2009.
[16] After his return, their life went on as usual. They went to dances. They went out mostly with her friends. He confirms that they went on a boat cruise, to Mama Mia, to Caribana and out on New Year’s Eve. It is his evidence that everything was fine in 2001, but then problems grew between 2004 and 2006. In 2005, there were arguments and he left the house when ever her friends came to visit.
[17] But his diary suggests otherwise. There are not many entries in 2001, 2002 and 2003. He testified that for three or four years they had Christmas dinner as a family at the Holiday Inn. By his diary, they were together for 2002 but there are no entries for 2001 or 2003. In 2003, she was in New York by herself for New Years which is both her birthday and their anniversary. In 2004, she went on a midnight cruise without him in June - the day before his birthday. They did go on a midnight cruise July 30, 2004 and to Caribana in Hamilton in August, and to a dinner at Montana’s.
[18] In 2004, he visited England over Christmas and New Year’s. Although this was her birthday and their anniversary, she gave him the tickets as a gift. She also had company coming from Trinidad while he was away. He did not ask her to go with him because she had problems with his family. She surprised him with the trip. The flight was already booked and she had already paid for the airfare. As far as he knew it was a gift and he denied that it was a loan.
[19] By Christmas 2005, he was home alone. He was not with either Mrs. Andrade or Nathaniel. On the same year, December 31, she was out without him and he stayed home. He agreed that they had independent lives by then. However he denies that in 2006 they were “roommates”. Rather they lived together, shared the house, split the expenses and slept in “more or less the same bedroom”. He also paid her debts and car expenses.
[20] This application was brought in 2007.He stayed at the house until March 2009 when the locks were changed by Mrs. Andrade. He then brought a motion for interim support and was granted $1,200.00 per month.
(b) Evidence of Mrs. Andrade
[21] Mrs. Andrade testified that she did not realize that Mr. Andrade had left until the end of the weekend – July 23, 2000.
[22] After a variety of searches through friends and family, she found Mr. Andrade at his employment in Ottawa. She called him at his work and he was angry at her. She was angry at him that he had left without telling them. He said that he wanted out of the marriage and wanted to go on with his life. She said that was okay but they had a house and a son to deal with.
[23] She then let it go for a few weeks. Mr. Kanga was involved in helping with the communication. Eventually Mr. Andrade gave her his email address and telephone number. She then called or spoke with him. He wanted out of the marriage and wanted nothing to do with them.
[24] For the period July to September, he started coming to their house once a month. She did not ask him to come back but said he should think about his relationship with his son. On the first two occasions he drove and stayed at friends. She brought Nathaniel to visit with him at a restaurant and that continued to be the pattern.
[25] She testified that she was concerned about the mortgage that was coming up for renewal in September. He told her that she could do whatever she wanted. She asked if he wanted a separation agreement but did not press this until mid September. She wrote many emails to him primarily focusing on the home.
[26] In the fall of 2000, he came back to visit Nathaniel. He stayed with family friends when he visited for about a year. She denied that he stayed at the house. She did pick him up and drop him off at the train station.
[27] In October of 2000, they negotiated and signed a separation agreement. I will deal with that event later in these reasons.
[28] She may have spent Christmas 2000 with him. She bought gifts for the children in his name. From the end of 2000, however she was in a relationship with Ken Bhagaloo. She denied that she was intimate with Mr. Andrade after they separated in 2000.
[29] On May 14, 2001 she received a letter from Mr. Andrade’s lawyer but she did nothing about it. Two weeks later, Mr. Andrade called to say that he wished to come back and she said “I think you’re crazy”. He wanted to come back on the condition that he would stay in the basement apartment without any connection to the rest of the family. She said that she would only allow him to come back if they sought counselling. He agreed to that.
[30] Mrs. Andrade added that Mr. Andrade said that he was not well and had lost his job. He wanted to return to the home to “get on his feet”. She thought that this was in the summer of 2001. She did not want him to come back but Nathaniel was acting up and she felt that he was out of control. She thought that Nathaniel would benefit from a relationship with his father. She therefore agreed to let him return but on a variety of conditions including that he not disrupt her life; that he have his own room and washroom and that he get on his feet financially and move out. He agreed to her terms. He then moved his belongings from Ottawa in her vehicle with Nathaniel’s help. She changed the lock on her room.
[31] Nothing else was agreed upon. He was only to be there until he was on his feet. She provided the food but they otherwise led separate lives. They did not share a bedroom or bathroom. They sometimes had meals together or sat and talked. She thought that this was to be as fast as possible. When she asked him when he was moving out he would say “when the time is right”.
[32] They went to counselling for two or three months but it did not help them. He did not listen to the advice.
[33] She testified that “to the best of my knowledge” they went to no social events after the separation. She believes that they may have gone to one birthday dinner and dance but she does not remember where. It was certainly not overnight. She does not recall staying overnight at a hotel with Mr. Andrade in December 2002.
[34] Mr. Andrade produced DVDs of Mrs. Andrade in cross-examination. They show that the couple stayed overnight at a hotel December 31, 2002 to January 1, 2003. She still does not recall that and denies that she slept with him. The videos show that she was not very happy. It wouldn’t surprise me that they were still not reconciled.
[35] A second DVD shows Christmas of 2000 and for the most part Mrs Andrade appears very unhappy. There is one short scene of Mr. Andrade kissing her, dancing with her and hugging her. In the video, she has a brief smile but she denies that she was happy at the time. She says that she was coerced into this picture.
[36] Although Mr. Andrade told the court that he took many pictures of the couple and regularly took videos of the family, these were all that were provided to support his case.
[37] There were family visits but they did not visit “as a family”. They did things with their children, but they lead separate lives. They only had Christmas dinner a couple of times with the whole family.
[38] She organized social events at her house without Mr. Andrade’s involvement. For instance, friends or family visited a couple of times each summer. Mr. Andrade did not stay for these but it was up to him as to whether he wanted to stay or not.
[39] Household chores were undertaken by her and Danny and Nathaniel but mostly by her. Mr. Andrade contributed nothing.
[40] This was all emotionally and mentally draining to her and she was stressed, depressed, lost weight and was prescribed Prozac. When she told him that she needed some help, he took over paying the bills. She would pay him cash for her share which amounted to about $500 a month. This arrangement started in about 2002.
[41] She denied that they went to any social functions together in 2001. They did go as a family to a church event and Danny bought tickets for the Ice Capades. She denied that they went on a boat cruise, to a dance or to Mama Mia together. She and Ken Bhagaloo went to plays and on a boat cruise together. She denied that she was ever out with only Mr. Andrade.
[42] When he lost his job, she said that she did not believe that he was prepared to leave.
[43] With respect to the trip to England, he asked to borrow money so that he could go to his goddaughter’s graduation. He was the one who chose the Christmas period. She bought the ticket for him and she does not remember how much it was. He did not repay it.
[44] Finally, in 2006 she told him that he was not contributing and she was going to get a divorce. The next thing she knew, she received a letter from his lawyer. She found out that Mr. Andrade said that he knew nothing about the separation agreement signed in October of 2000. She told him to leave and he said that he was not going. She said that she could throw him out because the house was in her name and he said no, he could come and go whenever he pleased. This continued from 2006 to 2009. He contributed nothing to the house and refused to do anything to assist.
(c) Evidence of Danny Andrade
[45] Danny was called to testify by his mother. At Mr. Andrade’s request, Danny has not seen his father since the action was commenced. He has not changed his feelings towards his father and does not harbour any ill-feelings toward him. Rather, he is in a difficult position; as he said “between a rock and a hard place”. That was obvious from his appearance on the stand. I find that, unlike his parents, Danny was doing the best that he could to tell the truth.
[46] In 2000, Danny was still living at the house in the basement apartment and paying rent to his parents. That summer, his father left without notice or communication to the family. Danny and his mother made efforts to find his father and he was eventually found in Ottawa.
[47] His father visited infrequently and then came about once a month and on the weekend. It was Danny’s understanding that his father came to visit Nathaniel and so that his parents could figure out what to do to move forward. His father sometimes stayed overnight and sometimes did not. If he stayed overnight, he slept in a separate bedroom.
[48] He was told by his father that he left because he had had enough and he left for his own well-being. He told Danny that he thought that the relationship could get violent if he lost his temper and he just wanted to move on.
[49] His father was in Ottawa for about a year. He then returned because he lost his job and needed a place to stay. Neither his mother nor his father said how long his father was going to stay. There was no family conversation to explain the circumstances. Danny testified that would have been “uncharacteristic” of his parents if they had.
[50] After 2000, the relationship seemed to consist of communicating only to dissolve the relationship and to work out the arrangements of the separation.
[51] He was aware that his mother went to a lawyer. He saw the agreement and read it.
[52] They lived separate lives and had separate bedrooms. They both had locks on their bedroom doors. They had separate bathrooms and did not interact. After 2001, he thought that his parents were “more strained, more distant and definitely more separate”. He described the relationship as “broken” after 2001. From 2001 to 2006 they lived independent lives.
[53] His father would try not to be home when his mother was home and his mother would do the same. They tried to see as little of each other as possible. He did not see them go out together although they did visit with mutual friends. They did not visit with her friends but only with long time family friends. Although his mother hosted parties, that was without his father. As far as he knew, his father went to the library when his mother had visitors. His father said that was the best way to keep the peace.
[54] They did not vacation together. The only family functions were at Christmas.
[55] One Christmas, Danny gave tickets to the Ice Capades to the whole family. He believes that this was Christmas in 2003 or 2004 or 2005.
[56] During the time that they were together in the house, his parents had no distinct roles that he could observe. His mother did most of the work around the house. His father was inconsistent with his help although he did some shovelling. Usually the work was done by Danny, his mother or Nathaniel.
[57] He knew that his mother had a new man in her life in the period 2007/2008.
(d) Evidence of Mr. Bhagaloo
[58] Mr. Bhagaloo first met Mrs. Andrade in mid 1999. He met her again in 2001 and found out that she was separated. They saw each other at coffee or lunch because they worked near each other in downtown Toronto.
[59] The relationship started in 2001 and blossomed from there. They saw each other two times a week or on weekends. On weekends, they alternated between their homes. They went to ten or twelve dances per year. They went to Niagara Falls, St. Jacobs, and on holidays together. Other excursions together included Casino Rama and theatre from 2003 through 2005.
[60] They started having Christmas together in 2003. He has been to her home and attended there for barbecues. He particularly remembers birthday barbecues that she had held for him and their friends.
[61] He has never met Mr. Andrade although he did see him once at a barbecue in 2006. He did not question their relationship.
(e) Evidence of Indra Sirju
[62] Ms. Sirju first met Mrs. Andrade in 1995. They were involved in a variety of Caribbean activities including Carabana and the Tringo Club. They were involved together in tickets sales, serving and selling raffle tickets. She also visited Mrs. Andrade at her house for short social visits. She saw her at club events.
[63] She believes that she went to about six events per year and of those, Mrs. Andrade was there for most. In 2000, she went to about six events and Mrs. Andrade was at most of them by herself. In 2001, she was at five or six events including a boat cruise, spring dance, fall dance, the November social and cricket games. Ms. Sirju attended because her husband played cricket and she went along with him.
[64] She was aware that Mrs. Andrade was married and had met her sons. Mrs. Andrade said that she was separated.
[65] She has never met Mr. Andrade and only saw him for the first time during the trial at the courthouse. She did not see him at any of the social events. Instead, she testified that Mrs. Andrade was at all of them with her boyfriend, Ken Bhagaloo. Although Ms. Sirju had met Mr. Bhagaloo before, she became aware that they were boyfriend/girlfriend. He was introduced to her as Mrs. Andrade’s boyfriend. Since 2001, she saw Mrs. Andrade at the dances with Mr. Bhagaloo. Ms. Sirju also met them at barbecues at Mrs. Andrade’s house in the summer of 2005/2006.
(f) Evidence of Aisha Khan
[66] Ms. Khan and Mrs. Andrade worked together from 1996 to 2009. They saw each other almost every day. Besides working together, they also socialized. They both helped to organize parties in the West Indian community. There were about 10 or 15 events per year. They went to dances, boat cruises and barbecues.
[67] There was a group that went together from work and Mrs. Andrade was a part of that group. She brought along Mr. Bhagaloo. As far as Ms. Khan was aware, Mrs. Andrade started dating Mr. Bhagaloo in 2000. She brought no one else with her to these events.
[68] She met Mr. Andrade once. She was visiting Mrs. Andrade in 1997 and was helping to bake in the kitchen. Mr. Andrade talked with her for two or three minutes and then left.
[69] Ms. Khan went to Mrs. Andrade’s house two or three times a year for barbecues. She did not see Mr. Andrade at any of the barbecues. She did not ask about him and did not think much about him one way or the other. She understood that Mrs. Andrade was in a romantic relationship with Mr. Bhagaloo.
(g) Evidence of Lazina Bochus
[70] Ms. Bochus is the older sister of Mrs. Andrade. They both work for the Royal Bank and have a close relationship. They see each other approximately four times a week and have lunch together about three times a week.
[71] Nathaniel is about the same age as her son and therefore there have been social outings with the two boys included. This occurred more often in the summer months through the years 1993 to about 2005 or 2006 when the children were younger.
[72] From her observations, Mr. and Mrs. Andrade had a “business-like” relationship. She saw no displays of affection between them.
[73] Although she was told that Mr. Andrade returned to the home after 1998, she did not see him at the home. Mr. Andrade did not come along on the trips with the two women and the children.
[74] She was contacted by Mrs. Andrade in 2000 when Mr. Andrade had left the home. She was involved in that search by sending emails to Mr. Andrade but he did not respond.
[75] She was aware that he returned to the home again in the later part of 2001. She did not see them together after 2001. She only saw Mr. Andrade once in 2003 when he came to pick up Nathaniel at her home.
[76] She was aware that her sister was in a relationship with Mr. Bhagaloo. She met him in 2003 at his home. His home is about 5 minutes from her home. She sees them once every four or five weeks when they have coffee together or she drops food off at his home when Mrs. Andrade is there. She sees that they have a warm relationship and are affectionate to each other.
(h) Analysis
[77] In Molodowich v. Penttinen, [1980] O.J. No. 1904, Kurisko D.C.J. considered a number of factors to determine whether the litigants were cohabiting. He considered:
(1) SHELTER:
(a) Did the parties live under the same roof?
(b) What were the sleeping arrangements?
(c) Did anyone else occupy or share the available accommodation?
(2) SEXUAL AND PERSONAL BEHAVIOUR:
(a) Did the parties have sexual relations? If not, why not?
(b) Did they maintain an attitude of fidelity to each other?
(c) What were their feelings toward each other?
(d) Did they communicate on a personal level?
(e) Did they eat their meals together?
(f) What, if anything, did they do to assist each other with problems or during illness?
(g) Did they buy gifts for each other on special occasions?
(3) SERVICES:
What was the conduct and habit of the parties in relation to:
(a) Preparation of meals,
(b) Washing and mending clothes,
(c) Shopping,
(d) Household maintenance,
(e) Any other domestic services?
(4) SOCIAL:
(a) Did they participate together or separately in neighbourhood and community activities?
(b) What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?
(5) SOCIETAL:
What was the attitude and conduct of the community towards each of them and as a couple?
(6) SUPPORT (ECONOMIC):
(a) What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?
(b) What were the arrangements concerning the acquisition and ownership of property?
(c) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?
(7) CHILDREN:
What was the attitude and conduct of the parties concerning children?
To the foregoing must be applied the following caveat of Mr. Justice Blair in the Warwick case (supra):
"The extent to which the different elements of the marriage relationship will be taken into account must vary with the circumstances of each case."
[78] In Torosantucci v. Torosantucci (1991), 32 R.F.L. (3d) 202 (Ont. U. Fam. Ct.) Beckett J. described a “reasonable prospect of reconciliation” at para. 14 as:
A reasonable prospect of reconciliation must be more than wishful thinking on the part of either party. There must be more than residual affection that may linger by one or both of the parties. The Act does not speak of a "prospect" of reconciliation but a "reasonable prospect". The Oxford Concise Dictionary 7th Edition, defines prospect as "expectation, what one expects." The question is whether a reasonable person, knowing all of the circumstances, would reasonably believe that the parties had a prospect or expectation of resuming cohabitation. … But wishful thinking is not the stuff of reconciliation. There must be some indication or step taken by both of them in that direction.
[79] As Mesbur J. pointed out in Bowen v. Bowen, [2001] O.J. 480 (Sup. Ct.) at para. 28: “it is necessary for only one of the spouses to withdraw from the marital relationship in order to end it.”
[80] The inquiry is on an objective basis. For example, in Czepa v. Czepa (1988), 16 R.F.L. (3d) 191 (H.C.J.), Killeen, L.J.S.C., stated at para 15:
The quest for a valuation date is tied to that date when the marriage is irretrievably broken down and the resumption of cohabitation is not reasonably in the cards. This quest requires the trial judge to look at all the circumstances objectively.
[81] The onus is on Mr. Andrade to show that the date of separation is 2006. The weight of the evidence is that the parties separated in 2000. Mr. Andrade’s interpretation of these events is not credible. He admits that he left without notice and with no belongings to go to Ottawa. He found a job within a few days. He did not contact Mrs. Andrade for two weeks and needed to be found and persuaded to speak with her. He then came back on weekends for another year.
[82] His diary conflicts on important details. The diary shows very little interaction between the parties and often provides examples of separate lives. While the videos were helpful to show one example of Mrs. Andrade’s untruthfulness on one point, ultimately they show a very unhappy woman with Mr. Andrade on the dates in question. The certainly do not depict a happy and reconciling couple.
[83] He agrees that he left the home when her friends and family came over. If he said that he would not leave there were major arguments so he tried “to comply”. He agreed that she did not want him there because he embarrassed her.
[84] Danny appears credible and trying to be fair to both his parents. He seemed to be quite pained about his evidence. There was no significant cross examination. Mr. Andrade’s reply evidence did not touch on Danny’s evidence. There is no reason to reject Danny’s evidence and every reason to accept it. His evidence is compelling and I accept his evidence where it conflicts with that of Mr. Andrade.
[85] The evidence of Mr. Bhagaloo, Ms. Khan, Ms. Sirju and Ms. Bochus was essentially uncontradicted and uncrossed. There is no reason to reject their evidence. That evidence supports Mrs Andrade’s evidence on this point.
[86] Applying the case law as above, I find that although the parties resided under the same roof after the summer of 2001, that was in separate rooms. They did not have sexual relations. Mrs. Andrade was in a long term and public relationship with Mr. Bhagaloo. Clearly, Mrs. Andrade had no intention to reconcile over the period 2001 to 2006 as alleged by Mr. Andrade.
[87] While they may have attended functions from time to time, together or as a family (as described by Mr. Kanga), it was not for the purposes of reconciliation. Although they may have been civil to each other and shared some of the domestic duties and expenses, it was really no more than as roommates and not as a cohabiting couple. Their lives outside the house were separate. Given the overwhelming evidence to that point, I need not parse their involvement with Nathaniel. Whatever it may have been, it does not rise beyond the assistance of civil separated spouses.
[88] On a balance of probabilities, I find that the parties separated in 2000. While the evidence of the specific date of July 23 is scant, there does not seem to be an issue on the specific date but rather the year of separation.
How was the agreement signed?
[89] Mrs. Andrade relies upon a separation agreement signed by the parties in October of 2000. In it, Mr. Andrade released his interest in the matrimonial home, an equalization payment and any claim for spousal support. Mr. Andrade acknowledges his signature on some of the pages but denies seeing the entire agreement. He understood that the document he signed only transferred the title in the property to Mrs. Andrade for the purposes of refinancing the house while he was in Ottawa. For the reasons that follow, I accept that he was provided with only the signing page of the document.
(a) Evidence of Mr. Andrade
[90] In the fall of 2000, Mrs. Andrade started to talk to Mr. Andrade about taking his name off the house because it was difficult to maintain the home. She told him that they would lose the house unless he removed his name from the house. She told him that she could get a better rate if the house were in her name alone. He trusted her that this plan would work to their mutual benefit. She had been employed with Royal Bank for 35 years. They had been married for 25 years and had a child together. Even with that agreement, he did not think that his name was really coming off the house. Others said that it was not a good idea but he trusted his wife. He did not want to lose the house and so he did what she asked. He did not understand that he was not responsible for the mortgage. As far as he was concerned, he was required to pay the utilities and she was required to pay the mortgage. He thought that the utilities might in fact be more than the mortgage.
[91] In September or October of 2000, he was presented with the separation agreement. They had had telephone calls and emails between them on this subject. This conversation occurred for a few weeks before he signed the agreement in October, 2000. There was no other reason for the agreement other than to remove his name.
[92] There were arrangements made to sign that document in Toronto. There is nothing in his diary about the separation agreement being signed October 6. Although he said the computer was down that day, there is another note for October 6 that does not relate to the signing.
[93] He arrived on Friday or on the weekend. He drove in from Ottawa that morning. They then spoke to each other about the agreement while parked in a Brampton parking lot. They sat in the car and talked about it. Again, she explained to him that there was a possibility that they could lose the house. He agreed to sign but she had not brought documents with her to review in the car. They therefore decided to meet at the business office of a mutual friend, Willy Kanga, in order to sign the documents.
[94] They met at Mr. Kanga’s at 5 or 6 in the evening. There were only the three of them present. He was shown some documents. He believes that he saw only one or two pages. He agreed to remove his name from the deed.
[95] He acknowledges that his signature is on the signing page of the separation agreement. He acknowledges that the Release and Acknowledgment of the mortgage to the Royal Bank was also signed by him. He glanced through the document. It was explained to him although he did not understand the technical jargon. He “thought that it was to take my name off the house”. The two of them had talked about it ahead but he did not speak with anyone else about it.
[96] However, he does not believe that he saw the acknowledgement of independent legal advice. At one point, he recollected that he only signed one document at Willy’s place of business. At another point, he remembered two pieces of paper that he signed on October 6. He denies that he signed four documents.
[97] With respect to the separation agreement, he agreed that it is possible that he signed the last page but he does not remember “all this writing”. He does not remember paragraph numbers or titles like “Amendment of Contract”.
[98] He was shown the original separation agreement and acknowledges that the signature looks like his but he did not see the entire document before he made investigations in 2006. He does not say the signature was placed there by another. He cannot explain how his signature got on the other documents.
[99] Mr. Andrade agrees that he was not forced to sign and did not feel that he could not say no. He was comfortable at Willy’s place and went there for the purpose of signing the documents. They had been discussed long before that. He denied that they had been negotiating but rather simply discussing what needed to be done. He agreed to the transfer so as not to lose the house. He did not think removing his name would make much difference between the two of them.
[100] They did not continue the visit with Mr. Kanga after the signing nor did they discuss the document any further. Rather he and Mrs. Andrade went home, had dinner together and he left early the next morning.
[101] He first saw the separation agreement in 2006 and that is noted in his diary at June 1, 2006. At that time, Mrs. Andrade had told him that he had to leave because it was her house. She said that she could have him put out of the house. He therefore went to the registry office and then to the lawyer that had completed the transaction. At that time the lawyer showed him the document but he had never seen it before. From there he went to his own lawyer.
[102] He was content to sign without advice in 2000. He knew that he had taken his name off of the real estate. That did not surprise him; rather, it was the separation agreement that surprised him.
(b) Evidence of Mrs. Andrade
[103] By September of 2000, Mr. Andrade finally said that she should go ahead with a separation agreement. Neither of them wanted anything from the other. He said that he would turn over the house on condition that he would not have to pay child support.
[104] She produced an express delivery letter as an example of the discussions between them. There were other letters and emails back and forth between the two of them. They referred to a separation agreement, but none of those emails have survived.
[105] The letter that she sent to Mr. Andrade was as follows:
September 15, 2000 4:30 pm
Lloyd,
This has to be brief and to the point as I am trying to get this off to you by express delivery. As you know you left me in quite a financial mess and it is extremely important that I put some emotional and mental stability in our (especially Nathaniel) lives with regards to a roof over our head. We are in quite a state and cannot keep going on like this. I approached the bank and was told it is utterly in our best interest to avoid a foreclosure. As I explained to you I have been using my visa and Danny’s help to make the mortgage payments. The mortgage status is currently set to “RESTRAINT”. I waited all week for a response from you on other things as well as on the house. I know Chris also delivered the message with regards to changing the ownership of the home so that I can get it rearmortized so that I can carry the payments. I also explained it to the Stratchan’s. This is called an “Assumption” and all it means is that the financial responsibility is off your shoulder. I was given a deadline of September 15th (today). I came home early, checked the mailbox and was extremely disappointed when I found no response from you. I am now granted up to Sept 28 so I gave the go ahead to the bank to start preparing the documents. So the “Assumption” papers are being prepared and will be sent to the bank’s lawyer that we dealt with - his name is Terry Richardson.
Terry has to get in touch with me to explain whether you will be required to come down to sign the change of ownership or whether he can send it directly to you or whether he has to send it to you and arrange with a lawyer close to you to have it signed. As soon as I hear from Terry I will let you know. Only after you sign the document the bank can reregister the ownership. This is the ONLY way I can avoid a foreclosure so I hope you will cooperate.
You did indicate in both letters that you hope I will be able to keep the home so I am trying my utmost. As I said I do not know what your plans are so in the meantime I truly need to put some security/stability in the lives you left behind.
Please Lloyd, if you know you will not co-operate, then please call me and let me know as I have to cover the legal fees for all of this and I truly cannot afford to lose much.
Thanks……….
[106] The response to that email came the next weekend when he said that he had no problem with signing over the house but did not want to pay child support. He was not interested in her financial statement. She was aware that he knew what her financial situation was when they were together. He knew that the main asset was the house. She did not ask about his financial situation because she was not interested either. She knew that he had an RRSP because she had seen the RRSP statements.
[107] She then went to her lawyer (and the bank’s lawyer), Mr. Richardson. He prepared the agreement and her acknowledgment. He reviewed all of the paragraphs of the separation agreement with her. He said that she could not negotiate child support but he would put in a release of child support for one year. She signed both of the documents at his office on October 6, 2000.
[108] She then took the document to Mr. Kanga’s shop and showed it to him. She also showed him her notes from when she was speaking with Mr. Andrade.
[109] While she was still in the office, Mr. Kanga spoke to Mr. Andrade on the phone and she overheard the conversation. He explained to Mr. Andrade that the document was there and Mr. Andrade said that he would come on Friday to sign the document after 5:00. That was the next day and accordingly Mrs. Andrade came back the next day. She had spoken with Mr. Andrade in the meantime. He said that he did not want financial disclosure. They agreed that Mr. Kanga would witness his signature.
[110] She had first met Mr. Kanga when she went to him to look for Mr. Andrade in July of 2000. She had heard his name and his business but had not met him before.
[111] She had brought the separation agreement along with the two page document relating to the ownership of the home. She brought a total of about 15 pages with her. She confirmed that she had brought the agreement plus two other pages. The original separation agreement had been stapled together. She also brought along the Release and Acknowledgement from the bank.
[112] Mr. Kanga told them that they should review the agreement in the car and so they did. When they reviewed it, Mr. Andrade agreed with the terms including the fact that there was a child support release for only one year.
[113] Mrs. Andrade said that she told Mr. Andrade that he did not need to sign and that he could get legal advice. He declined to get legal advice because he wanted out of the marriage and had no money for legal advice. Instead he said “let’s just get it over with”. They then went back to Mr. Kanga’s shop and told him that they were ready to proceed. This occurred sometime in the evening after 6:00 p.m.
[114] She said that Mr. Kanga flipped through the pages. Mr. Andrade signed and Mr. Kanga witnessed his signature.
[115] She then took the document back to Mr. Richardson on the Monday following. She got three copies of the agreement in the mail from her lawyer and gave one of them to Mr. Andrade when he was next in Brampton.
[116] After the title to the property was changed to her name, she received documents from the bank and provided one copy to Mr. Andrade. She then refinanced the mortgage.
[117] She was referred to the transfer and deed which is a fourth document to be signed. She does not know if she brought it with her.
[118] She is adamant that Mr. Andrade wanted out of the relationship and wanted no financial obligations. He wanted to put the marriage behind him.
[119] She agreed that he gave up approximately $30,000 in equity in return for no support. She agreed that it was only a one year child support release. They did not discuss the equity in the house.
(c) Evidence of Willy Kanga
[120] Mr. Kanga was subpoenaed by Mr. Andrade. He knows both Mr. and Mrs. Andrade.
[121] In October 2000, he signed some documents for Mr. and Mrs. Andrade. The couple were having family problems and Mrs. Andrade asked him to ask Mr. Andrade to come back from Ottawa. He knew that they were trying to sort out some of their difficulties
[122] He recognized his signature on the separation agreement. He does not remember the day but remembers it was 5 or 6 in the afternoon at his place of business.
[123] He does not remember how the documents arrived but he believes that Mrs. Andrade brought them. There was no discussion about the contents of the documents but rather they simply signed them. The meeting took about one or two minutes. He can only remember seeing the two pages that he signed. He does not believe that there were any other papers. There was no discussion before or after with the Andrades.
[124] His recollection is that Mr. Andrade came back from Ottawa every two weeks. He would come over to Mr. Kanga’s house and the two couples socialized together. Mrs. Andrade visited him every day. They went to a Brampton festival together, they had barbecues at each other’s houses and they went to a park in Toronto. They spent every weekend together.
[125] In cross-examination, he specifically remembers signing the last page of the agreement. He acknowledged his signature on the original document.
[126] His purpose was only to arrange to have Mr. Andrade sign. He was just there to witness the signature. Although it was pointed out to him that this was page 13 of the document, he did not see the other twelve pages.
[127] Mrs. Andrade just asked him to get Mr. Andrade to sign. That’s why it only took less than a minute. He was simply to be present. He was a friend to both of them. Although he met Mrs. Andrade through Mr. Andrade he was closer to Mrs. Andrade because he saw her regularly.
[128] This was just a matter of trusting them and he did not point out any missing pages. He did not wish to get into the middle of their argument. He did not ask to see the other pages and did not determine how many pages there were.
[129] The meeting really was less than a minute, as he said, “just sign here, sign here”. He now sees that it was an incomplete document but he was only there to witness their signatures. He did not want to know what else was in the document. Even after the signing, the families continued to be friends.
[130] He saw Mrs. Andrade every day after her work at his work place. They then went to his residence to visit with his wife, Maria. He and Maria babysat Nathaniel for a short time. Mrs. Andrade taught Maria to drive and took his daughter to Tae Kwon Do.
(d) Analysis
[131] The onus is on a party seeking to set aside a domestic contract to prove its case on the balance of probabilities. Accordingly, Mr. Andrade must show that he ought not be bound by the agreement.
[132] Section 56(4) of the Family Law Act says:
A court may, on application, set aside a domestic contract or a provision in it,
(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;
(b) if a party did not understand the nature or consequences of the domestic contract; or
(c) otherwise in accordance with the law of contract. R.S.O. 1990, c. F.3, s. 56 (4).
[133] In Miglin v. Miglin 2003 SCC 24, [2003] 1 S.C.R. 303 the court said:
As we explain below, we believe that a fairly negotiated agreement that represents the intentions and expectations of the parties and that complies substantially with the objectives of the Divorce Act as a whole should receive considerable weight. In an originating application for spousal support, where the parties have executed a pre-existing agreement, the court should look first to the circumstances of negotiation and execution to determine whether the applicant has established a reason to discount the agreement. The court would inquire whether one party was vulnerable and the other party took advantage of that vulnerability.
[134] Mrs. Andrade relies upon Fraser Jewellers (1982) Ltd. v. Dominion Electric Protection Co. (1997) 148 D.L.R. (4th) 496, at paras. 30 and 32:
As a general proposition, in the absence of fraud or misrepresentation, a person is bound by an agreement to which he has put his signature whether he has read its contents or has chosen to leave them unread. Cheshire, Fifoot & Furmston's Law of Contract 13th ed. (1996) at p.168. Failure to read a contract before signing it is not a legally acceptable basis for refusing to abide by it…
… the onus must rest upon the plaintiff to review the document and satisfy itself of its advantages and disadvantages before signing it. There is no justification for shifting the plaintiff's responsibility to act with elementary prudence onto the defendant.
[135] I find that Mr. Andrade was only provided with the last page of the agreement and cannot be bound by it. Mr. Kanga’s credibility was not shaken and I have no reason to reject his evidence about what was signed and what was not signed. He was a friend to both and had no reason to assist one or the other.
[136] It is unfortunate that the various pages were not initialled. The original document has been stapled and unstapled a number of times. There is no way to tell its condition on October 2000.
[137] I cannot accept Mrs. Andrade’s evidence on this point. Her email refers only to the mortgage and deed and makes no reference to any agreement other than that. Mr. Richardson was not called. His reporting letter is unhelpful.
[138] What all of this evidence leaves out is the fact that four different documents were signed including the deed. However, none of the witnesses has recalled signing four documents. The deed and transfer is signed by Mr. Andrade on October 7 and then apparently by Mrs. Andrade on October 12. She signed the separation agreement and her acknowledgement on October 6. There is no explanation for the different dates on each of the documents. There is no explanation as to why only one copy of each document was signed. If Mrs. Andrade had already signed the documents, why was it that no copy was left for Mr. Andrade? The circumstances surrounding these documents are so uncertain that I cannot accept her evidence without more to confirm it.
[139] On a balance of probabilities, I find that Mr. Andrade had presented to him the Release and Acknowledgement for the bank along with the last page of the separation agreement. Accordingly, Mrs. Andrade misrepresented what Mr. Andrade was signing. As such, he cannot be bound by an agreement that he has not received.
Is the agreement valid?
Legal Principals
[140] Even if the entire document was provided to Mr. Andrade, given the negotiation and execution, it cannot be upheld.
[141] Justice MacDonald in the recent decision of MacLean v. MacLean [2009] N.S.J. No. 328, 2009 NSC 216 considered whether a separation agreement should be set aside. She identified eight factors relevant to determining the validity of the agreement. At paragraph 8 she wrote:
8 In Miglin v. Miglin, 2003 SCC 24, 2003 SCC 24 (S.C.C.) and Rick v. Brandsema, 2009 SCC 10, 2009 SCC 10 (S.C.C.), the Supreme Court of Canada has provided direction about the principles to apply when considering whether to set aside a separation agreement. The first issue to be examined is the validity of the agreement itself. To do so the court must consider a number of factors such as:
(1) the capacity or mental competence of the parties;
(2) whether there has been complete disclosure of material information;
(3) whether the parties have been provided with independent legal or other independent advice and if so whether the party receiving the advice suffered from any particular vulnerability that might negate the usefulness of that advice;
(4) whether each party understood the agreement and its effect;
(5) whether the agreement meets the objectives of the legislation with which it purports to deal; (in this case the spousal support provisions of the Divorce Act and the requirements of the Matrimonial Property Act);
(6) whether the terms of the contract were unclear or uncertain;
(7) whether a party signed the contract under duress or undue influence or was a vulnerable party under other influence or stress that may lead an individual to sign a document against his or her interest;
(8) whether the agreement was signed under mistake or as a result of fraud or misrepresentation of a material fact.
[142] Justice MacDonald went on to find the subject agreement invalid and set it aside. At paragraph 30 she concluded:
I have found that all the circumstances surrounding the negotiation and execution of this agreement were fundamentally flawed and necessitate a finding that the agreement is invalid and must be set aside.
[143] Here, there was insufficient financial disclosure, Mr. Andrade did not have independent advice, he did not understand what he was signing and the content of the agreement was misrepresented. While each of these, standing on its own, might not be found a reason to set aside the agreement, in totality, they require me to find the agreement invalid.
[144] Even if I am wrong in my analysis to that point, the support waiver cannot survive scrutiny. In Miglin v. Miglin 2003 SCC 24, [2003] 1 S.C.R. 303 the court said:
The court also examines whether the substance of the agreement, at formation, complied substantially with the general objectives of the Act. As we elaborate later, these general objectives include not only an equitable sharing of the consequences of the marriage breakdown under s. 15.2, but also certainty, finality and autonomy. Second, the court would ask whether, viewed from the time the application is made, the applicant has established that the agreement no longer reflects the original intention of the parties and whether the agreement is still in substantial compliance with the objectives of the Act.
[145] The agreement is unconscionable. Mr. Andrade was presented with an agreement that required him to give up a substantial spousal support and equalization claim in return for a very small and limited child support claim. He was and is in need of support and Mrs. Andrade has an obligation to support him.
What is the Equalization Payment
[146] The parties were able to resolve a number of issues with respect to the net family property. They are attached as Schedule “A” for the date of separation of July 2000.
[147] I am required to determine the following issues:
(a) The value of Mrs. Andrade’s RESSOP on the date of separation.
(b) The extent of Mrs. Andrade’s personal debts on the date of separation.
(c) The extent of Mr. Andrade’s debts on the date of separation.
(d) Tax liability on Mr. Andrade’s RRSP
(a) RESSOP
[148] Mrs. Andrade takes the position that her RESSOP was worth $770.49 at the date of separation. Mr. Andrade values it at $2,500.00. I find that it was worth $770.49.
[149] Although Mrs. Andrade’s financial statement entry for the RESSOP shows $770.49, she provided no documentation to support that figure for July 23, 2000. However, her statement dated January 2004 shows a balance of $25,995.00.
[150] Mr. Andrade has no evidence to extrapolate the value he proposes. While I agree that Mrs. Andrade’s evidence is suspicious, there is nothing that I can point to in order to replace her figure with another. I can only accept her evidence on this point.
(b) Mrs. Andrade’s debts at the date of separation
[151] Mrs. Andrade deposes that she had personal debts of $14,856.00 at the date of separation. Mr. Andrade submits that I should find that they were $4,856.00. I accept Mr. Andrade’s position.
[152] The personal loans described in Mrs. Andrade’s Financial Statement were from Danny and Mr. Bhagaloo. She has no documents to support those figures. She agrees that her son moved out in 2004. He paid the taxes on the house but this was after separation. Her boyfriend helped with her legal fees after separation. She agreed that her boyfriend’s debt was after separation, as were the legal bills. Danny was not asked about any debts owing from his mother.
[153] The onus is on the person alleging the value of family assets or liabilities. Mrs. Andrade has provided no evidence of any such debts as of the date of separation.
(c) Mr. Andrade’s debts at the date of separation.
[154] Mr. Andrade submits that he had debts of $10,000.00 to TD/Canada Trust, $8,000.00 to MBNA MasterCard, $2,500.00 to VISA and $500.00 to Zellers HBC at the date of separation. Mrs. Andrade denies those amounts. I agree with Mrs. Andrade.
[155] Mr. Andrade was unable to provide documentation for any of the amounts. Of course, they are all rounded to be not much more than a best guess. Given the other areas of weakness in his evidence as set out above, I am not prepared to accept his estimates.
(d) Tax Liability
[156] The parties seem to agree on the amount of Mr. Andrade’s RRSP at $15,000. They seem to have agreed on the tax rate of 22%. It is their math that seems to be disputed. The amount is $3,300.00.
[157] Taking all of those findings into consideration and applying them to the agreed values, the equalization to be paid from Mrs. Andrade to Mr. Andrade is $57,797.33.
What, if any, Spousal Support should be paid?
[158] Mr. Andrade survives on a pension income of $1,137.67 per month along with the interim spousal support order of $1,200.00 per month. Mrs. Andrade’s income for 2011 was $76,684.40.
[159] Both counsel acknowledge that after payment of the determination of the equalization payment, Mrs. Andrade will have little money left to pay support.
[160] However, Mr. Andrade’s counsel submits that he should receive support on the basis of the mid-range of the Spousal Support Advisory Guidelines in the amount of $2,600.00 per month for an indefinite term. Mrs. Andrade’s counsel submits that she can pay spousal support or an equalization but not both.
[161] In my view, Mrs. Andrade should pay spousal support in the amount of $1,936.00 per month. I would not time limit the support; however, clearly her retirement may bring about a substantial change in circumstances. She wishes to retire prior to age 60 however in light of her financial circumstances and these obligations; I do not believe that that is appropriate. I will leave that to the judge hearing her application.
(a) Evidence of Mr. Andrade
[162] For most of the marriage, Mr. Andrade was employed until he left for Ottawa. After the separation, his first job in Ottawa was at Adecco. This was a hi-tech company. He then was employed with a temporary service, Kelly’s, for $12.00 an hour. He worked there for about a month and then was able to obtain a job with Nortel at about $15.00 per hour. He worked for Nortel for six or seven months and then was laid off. He then obtained employment at a senior’s long term residence in the laundry room. When he returned to Brampton, he found work though Kelly Services until 2009. He moved to LensCrafters in 2004 or 2005.He then continued to work part time with Kelly. He was paid $14.00 to $15.00 per hour with LensCrafters. He stayed there for four to five years and left in 2009. Clearly he was a man who could find employment when he was able to work. However, he had to leave LensCrafters because of problems with arthritis in his hands. He will be 70 this year.
[163] Mr. Andrade’s medical records were filed on consent. His doctor is of the opinion that he is totally disabled from work due to multiple medical conditions. No evidence was led to dispute that opinion. I am satisfied that he cannot find and keep gainful employment through no fault of his own.
[164] Mr. Andrade filed a financial statement that was not attacked in cross-examination. It seems reasonable. He pays $784.00 for rent in subsidized housing. It is geared to income and therefore he expects that if he earned more income he would pay more rent.
(b) Evidence of Mrs. Andrade
[165] Mrs. Andrade has been employed with Royal Bank for 35 years. She started as a customer service representative and worked her way up to a data analyst. She earns a little over $76,000.00 per year plus bonus. The bonus is determined upon the banks performance, her division’s performance and her contribution to the division’s success.
[166] Her income tax returns for the period 2000 to 2011 show a fluctuating income between $94,000.00 and $75,000.00 depending on her bonus. Her average for the last three years is $86,117.00.
[167] She is concerned about whether she is going to keep her job because of outsourcing. She does not know her prospects and there is no guarantee of keeping her job. Her bonus is now uncertain since she has a new job within a different division.
[168] She had wanted to retire at 55. She is now 57 and hopes to retire in 3 years. She is borderline diabetic, mentally depressed and has a skin condition. She knows that she does not have the same abilities as she had in the past because she cannot focus on her work because of this lawsuit.
[169] The house was sold at a loss in 2009 and she moved to a friend’s house because she had no money. She now lives in a flat in Ajax. She cannot afford to purchase a house.
[170] It is significant to me that she agreed that there was $93,142.18 withdrawn from her bank account between 2002 and 2006. Those funds are not accounted for in her Visa, her line of credit or any other bank account. She has no recollection of where a $30,000.00 withdrawal went on June 30, 2006.
(c) Analysis
[171] It is helpful to begin by setting out the factors and objectives of s. 15.2(4) and (6) of the Divorce Act regarding an order of spousal support.
Factors
(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
Objectives of spousal support order
(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[172] As McLachlin J., as she then was, observed in Bracklow v. Bracklow, [1999] 1 S.C.R. 420, at para. 18:
Judges must exercise their discretion in light of the objectives of spousal orders as set out in s. 15.2(6), and after having considered all the factors set out in s. 15.2(4) of the Divorce Act. By directing that the judge consider factors like need and ability to pay (as explored below), the new Divorce Act left in place the possibility of non-compensatory, non-contractual support.
[173] Courts must look to the economic consequences of the marriage and its breakdown on a sick or disabled spouse and not simply to whether the illness or disability is causally connected to the marriage. In the words of McLachlin, J. in Bracklow at para. 48:
Divorce ends the marriage. Yet in some circumstances the law may require that a healthy party continue to support a disabled party, absent contractual or compensatory entitlement. Justice and considerations of fairness may demand no less.
[174] As McLachlin J. further observed, at paras. 53-54:
… The quantum awarded, in the sense of both amount and duration, will vary with the circumstances and the practical and policy considerations affecting particular cases. Limited means of the supporting spouse may dictate a reduction. …..To repeat, it is not the act of saying “I do”, but the marital relationship between the parties that may generate the obligation of non-compensatory support pursuant to the Act. It follows that diverse aspects of that marital relationship may be relevant to the quantum of such support. As stated in Moge, “[a]t the end of the day ..., courts have an overriding discretion and the exercise of such discretion will depend on the particular facts of each case, having regard to the factors and objectives designated in the Act” (p. 866).
Fixing on one factor to the exclusion of others leads Mrs. Bracklow to an artificial distinction between amount and duration. The two interrelate: a modest support order of indefinite duration could be collapsed into a more substantial lump-sum payment. It also leads her to the false premise that if need is the basis of the entitlement to the support award, then the quantum of the award must meet the total amount of the need. It does not follow from the fact that need serves as the predicate for support that the quantum of the support must always equal the amount of the need. Nothing in either the Family Relations Act or the Divorce Act forecloses an order for support of a portion of the claimant’s need, whether viewed in terms of periodic amount or duration. Need is but one factor to be considered.
[175] Based on my determination of the date of separation, what Mrs. Andrade did with her money after that time is her business. However, her complete inability to explain this flow of funds or produce documents to explain them, substantially impacts on her credibility. For an experienced bank employee to not be able to answer this inquiry is simply incredible. Her expenses are modest. Her asset base is modest. These missing funds can only be explained by her endeavouring to hide funds from Mr. Andrade and this court should my decision not be to her advantage. If Mrs. Andrade declares bankruptcy as a result of the equalization payment determined above, I would presume that the trustee would need an answer to where these withdrawals went.
[176] Without an explanation for these funds, I am satisfied that Mrs. Andrade has an ability to pay both the equalization payment and proper support.
[177] The marriage was twenty years in length. Mrs. Andrade was left with almost all of the family assets. Both children are now adults. Mr. Andrade is in need of support and is unable to support himself without her assistance.
[178] From a review of Mr. Andrade’s financial statement, he appears to be living just outside his means. He has a monthly payment to his trustee in bankruptcy. Once the equalization payment is made, that monthly expense will be eliminated.
[179] From a review of Mrs. Andrade’s Financial Statement, she seems to be paying her debts at a very high rate of interest, but her expenses are otherwise reasonable.
[180] The range of support base on the SSAG’s is very wide in this case. If I apply Mrs. Andrade’s income for 2011, the range is $1,936.00 to $2,358.00 per month. If I accept Mr. Andrade’s position that I should use a three year average, the range is $2,230.00 to $2,763.00 per month. Even attributing much of the missing funds to be available to Mrs. Andrade, these amounts are too high in these circumstances.
[181] The interim order is $1,200.00 per month. Mr. Andrade is managing on that amount but not well. In my view, a support order of $1,500.00 per month is appropriate in these circumstances. Both counsel requested that the order should commence May 1, 2009 less payments made and I so order.
Divorce
[182] During the evidence, the marriage certificate and clearance certificate were filed. On the evidence before me, I granted the parties their divorce and an order should issue in the appropriate form.
Result
[183] For the reasons set out above, I order:
Mrs. Andrade shall pay an equalization payment to Mr. Andrade in the amount of $57,797.33.
She shall pay spousal support in the amount of $1,500.00 per month commencing May 1, 2009.
Costs
[184] If the parties cannot agree on costs or interest, written submissions may be made to me. The applicant shall provide his submissions within 30 days and the respondent shall reply within 30 days thereafter. Both submissions shall be no more than 5 pages not including any offers to settle or bills of costs.
Lemon J.
Released: May 15, 2012