SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 710/10
DATE: 2012-01-12

RE: Joy Louise Holden Hart, applicant

AND: Douglas Anderson Hart, respondent

BEFORE: Mr Justice Ramsay

COUNSEL: Mr Mark F. Dedinsky for the applicant

The respondent in person

HEARD: 2012-01-11 and 12 at St Catharines

ENDORSEMENT

[ 1 ] The wife applies for spousal support.

[ 2 ] The parties were married in 1973. They had two daughters, born in 1978 and 1981. They separated on June 29, 2004. At that time, the husband was retired and drawing his pension. No application for equalization of property was brought, but the husband let the wife have the proceeds of the sale of the matrimonial home, about $60,000. She also got $35,000 from the sale of the cottage, which had been a gift from her father. Given the circumstances of the family, I infer that the wife ended up with at least half of the family assets.

[ 3 ] The applicant moved to Virginia and got an uncontested divorce on September 26, 2005. Spousal support was neither ordered nor denied. The wife married Stewart O’Brien on October 28, 2005, separated from him in 2007 and was divorced from him on January 28, 2009. No spousal support was involved.

[ 4 ] In May 2010 the wife returned to Ontario. On August 10, 2010 she filed the present application, requesting from the applicant “half his pension.”

[ 5 ] During the marriage the wife worked full time or attended post-secondary education, apart from a short time after the birth of the first child when she worked part time. She worked as an RNA, a social worker and an aide in a nursing home.

[ 6 ] From September 10, 2005 to May 26, 2010 the wife worked as an English instructor at an aviation maintenance college in Virginia for $14.50 an hour. She had part-time employment as well. She resigned when she moved back to Canada. During the marriage and after, she has been able to earn an income in the range of $25,000 a year, which, according to the applicant’s testimony, goes farther in Virginia than it does in Ontario.

[ 7 ] The wife bought a house in Virginia for $153,000, subject to a mortgage for $160,000. When she moved to Ontario, the house was worth $145,000. She left the house for the bank. As a result, she still has a locked-in RRSP in the amount of just under $30,000, an investment account of about $79,000 and an annuity with a life insurance company that has a value of $5,250. These amounts would have come from the money she had on separation and an inheritance from her mother.

[ 8 ] The wife has an American Social Security retirement pension of $327 a month as well as CPP and some income from part-time employment. In 2011 her total income was about $9,000.

[ 9 ] The wife has looked into returning to nursing. Essentially, at this point she would be starting over. To become a registered practical nurse, she would have to return to school for two years. To become a registered nurse, she would need five years. She is 63 years old.

[ 10 ] The husband has a pension income of about $51,000 a year. He typically earns another $25,000 a year from his consulting business.

[ 11 ] I do not think that the wife was disadvantaged by the marriage or the breakdown of the marriage. Her marriage to the respondent never stopped her from working to the full extent of her abilities apart from a brief period a long time ago. The parties seem to have contributed equally to child rearing and maintaining the home. For significant periods the wife worked across the border and commuted home on weekends. At one point she taught English in Korea. The respondent made it possible for the wife to pursue post-secondary education and upgrade her skills. Her current circumstances are the result of her own decisions, before and during the marriage. The key decisions were:

a. Having upgraded her skills from RNA to social worker with a master’s degree, she did not stay in that line of work.

b. She changed fields too many times during her career.

c. She left what appears to have been a relatively favourable employment market in Virginia for what is available in the Niagara peninsula and western New York.

d. She waited too long to go back to nursing.

[ 12 ] Even with her bad choices, the wife could still earn an annual income close to $30,000 with a combination of her pensions and some realistic employment, such as retail sales.

[ 13 ] Having said that, I recognize that the wife was a partner in a joint family venture for 30 years. During that time the husband always made more income than the wife. She is, in my view, entitled to spousal support.

[ 14 ] By the end of the marriage, the husband had retired and accepted a reduced income. He has supplemented it over the years with his consulting business, but that business has for the most part developed since the separation. I think that spousal support should be based on the husband’s pension income, which was what the parties had at the time of the separation. Furthermore, the husband is 65 years old. It would not be unreasonable for him at this point to retire from consulting and no doubt he will do so before long.

[ 15 ] The advisory guidelines supplied by the applicant suggest spousal support in the range of $1,300 to $1,600 a month. They do not take into account, however the $29,000 a year that I impute to the wife. I think that an award that is somewhat less than the lower end of the suggested range would be appropriate.

[ 16 ] In the result I order the respondent to pay spousal support to the applicant fixed at $900 a month, commencing September 1, 2010. A support deduction order will issue.

[ 17 ] The parties may make written submissions to costs within 10 days.

J.A. Ramsay J.

Date: 2012-01-12