ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 35/38/012640/09
DATE: 2012-01-10
BETWEEN:
LAURIE CHRISTINE GALLOW Applicant – and – STEPHEN WILLIAM GALLOW Respondent
Nancy M. Pringle, Counsel for the Applicant
George F. McFadyen, Counsel for the Respondent
HEARD: December 7, 8 and 9, 2011
DESOTTI, J.
A. Facts
[ 1 ] The parties were married on the August 23 rd , 1984 and separated on June 27 th , 2009. There are two children of the marriage, Christopher, who was born on June 9 th 1988 and is now 23 and Corey, who was born on November 13 th , 1990 and is now 21 years old. The respondent paid all of Corey’s tuition at College at the time of the separation and the two boys presently reside with their father in a cottage that he is renting from his employer. The father has also paid for his son Christopher’s two semester welding programme at Lambton College.
[ 2 ] The issue that remain after partial minutes of settlement is the respective imputed incomes of the parties. The applicant submits through counsel that the respondent has purposefully reduced his income post-separation and the respondent through his counsel submits that the applicant can earn far more than her small income as a shoe salesperson at Sears.
B. Analysis
[ 3 ] While a great deal of time and evidence was presented by both parties about why and how the respondent’s income has dropped since separation, I do note that the respondent’s income for 2009 dropped significantly and for at least half of the year the parties were not formally separated.
[ 4 ] I also accept the reality, as stated by the respondent, that some of the respondent’s employer’s business was relocated to Florida because of the proximate small differential in the U. S. and Canada’s exchange rate. I also accept the respondent’s evidence that there was an economic downturn in both the U. S. and Canada’s economies during this period of time just after or from the latter part of 2008 through to mid 2011. I do note that the respondent’s income has now increased back to $72,000.00 from $59,333.00 in 2009 and is in an upward trend.
[ 5 ] I do not believe the medical evidence satisfies me on a balance of probabilities of the applicant’s infirmities although I acknowledge that the prescription note pad information provides some baseline for her medical difficulties. Nevertheless, I do not accept that she can only earn the sum that is reflected in her income tax filings, that is, $8,727.00 for 2010 and $9,897.00 for 2011. I impute an income to her of at least $16,000.00. In doing so, I would require, after the four year review, which I will reflect in this judgment on the issues of the quantum and duration of spousal support, a better medical report and would also authorize that counsel for the respondent be allowed an independent medical assessment or examination.
[ 6 ] This latter concern is because the medical note before me, presumes a physical reality of the applicant that is not the actual employment reality or actual apparent physical condition of the applicant. Frankly, I question how someone who is stated to be unemployable can work as a shoe retail clerk.
[ 7 ] Before I leave this issue, I would also infer that over the next four years the applicant’s actual income should increase beyond the $16,000.00 that I have imputed to her for the same reason that I do not accept her earnings as reasonable at the $9,000.00 level.
[ 8 ] I also expect to see the respondent’s income rise back to a higher level of income and also I expect, based on his evidence, that his present sheltering costs will also increase with the sale of the cottage property that he suggests is eminent.
[ 9 ] Based on the midpoint of the SSAG, I therefore fix spousal support at $2,000.00 per month effective November 1 st 2010. This means that there has been a shortfall for 2010 of $1,000.00 and $6,000.00 ($500 x 12 = $6,000.00) for 2011. The respondent has 45 days to pay to the applicant these arrears.
[ 10 ] Ongoing spousal support shall continue at this rate for a period of four years without variation . As indicated, I expect both incomes to increase significantly during this period. The parties shall provide their respective income tax returns to the other party within ten days of filing. The parties shall also provide their notices of assessments within ten days after they receive same from Revenue Canada.
[ 11 ] At the expiration of four years, a review of the respective income of the parties shall take place by first an exchange of correspondence. If the matter is not resolved by a consent endorsement, then an application to this court may be brought.
[ 12 ] I am disinclined to award costs unless there has been a offer made by the parties in accordance with the Rules. My trial coordinator can be approached, if necessary to fix a date for brief representations.
“Justice John A. Desotti”
The Honourable Mr. Justice John A. Desotti
Released: January 12, 2012
COURT FILE NO.: 35/38/012640/09
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: LAURIE CHRISTINE GALLOW Applicant – and – STEPHEN WILLIAM GALLOW Respondent
REASONS FOR JUDGMENT
DESOTTI, J.
Released: January 12, 2012