ONTARIO

SUPERIOR COURT OF JUSTICE

Central West Region

Walkerton Court File No.: 28/09
DATE: 2012/07/10

BETWEEN:

Mark Salvatore Applicant – and – Joan Etcovitch-Holley Respondent

Glenna McClelland, for the Applicant
Ross Thomson, for the Respondent.

HEARD: Application heard at Walkerton on Wednesday, June 20, 2012

Langdon J.

1I wish first to express my gratitude to Ms. McClelland and Mr. Thomson, who have conducted this proceeding professionally, courteously and in a way that has been most helpful to the court. I hope the decision is worthy of their efforts. I shall refer to the applicant as “Mark” and to the respondent as “Joan”.

2Mark was born September 26, 1953. He is now 58.

3Joan was born February 18, 1958. She is now 54.

4They were married August 27, 1976, at Valleyfield, Quebec. They separated, after nearly 20 years of marriage, on April 14, 1996.

5They were divorced in Montreal on November 24, 1997.

6They had two children. Michael Franklin was born March 30, 1984, and is now age 28. He became independent December 23, 2006, when he married, after he had completed an undergraduate degree.

7The second child is Caitlin Millie. She was born February 8, 1991, and is now 21. She has had health issues that delayed her progress through high school. She has just graduated from high school and plans to leave home for the first time this month to travel to Whitehorse, in the Yukon Territory, for a summer job. Her plan is to attend post-secondary education in the fall. Both parties are aware that she may not be able to cope with a full curriculum and that her progress through university may be slower than normal.

8The divorce judgment of Denis J. incorporated the terms of a separation agreement. The important features of this agreement were:

• Although the child support guidelines had just come into effect, the support provision stipulated that Mark pay to Joan combined child support and spousal support, “alimentary pension” in the amount of $1,600.00 per month, payable on the first day of each and every month … and indexed on the first day of January of each year …commencing January 1 st , 1998. [1]

• The agreement incorporated in the divorce judgment recited: Whereas divorce proceedings have been instituted and in contemplation of divorce to intervene herein , the parties wish to settle all claims and obligations arising out of the marriage, including, without limitation, claims and obligations relating to or resulting from … lump sum, compensatory allowance … and alimentary pension . [2] [Emphasis added.]

• The agreement contained no provision for continuing disclosure, for variation or termination.

• Mark was to pay and be responsible for all college, CGEP, (sic), and university fees of the children.

• Mark was to pay all dentist and orthodontic fees of the children.

• Mark was to maintain a $500,000.00 life insurance policy with Joan as irrevocable beneficiary and to provide proof of payment of premiums annually.

• Joan retained the majority of the family assets including the former matrimonial home. Mark assumed liability for the debts of the marriage, some $28,000.00.

9Mark’s income at the time was $47,580.00. Joan’s only income was from Family Allowance. If the support provisions of this judgment had been allocated to spousal support and child support as the Guidelines required, the applicable child support amount for two children would have been $669.00. [3] The spousal support “portion” of the alimentary pension would thus have been $931.00.

These Proceedings

10On March 3, 2009, Mark made an application to vary the divorce judgment. He asked for:

• Termination of child support for Michael effective December 23, 2006, when Michael became independent.

• To pay child support for Caitlin of $719.00 per month based on his income of $80,000.00 US.

• To share Caitlin’s special and extraordinary expenses (s.7) with Joan prorated based on income.

• To fix any spousal support and child support arrears at nil.

• To terminate spousal support effective December 12, 2002, the date of Joan’s remarriage.

• To terminate his obligation to maintain the life insurance policy of $500,000.00.

11Joan moved in response for orders:

• Terminating child support for Michael effective January 1, 2009.

• That Mark pay child support for Caitlin of $1,329.00 per month effective January 1, 2007, based on an income of $160,112.00.

• Spousal support of $4,000.00 per month based on incomes of $110,627.00 in 2006 and $130,170.00 in 2007, to be effective January 1, 2007.

• Retroactive spousal support of $112,000.00 as of April 15, 2009.

Mark’s History since Separation

12Following the divorce, Mark, who was born in the U.S., moved to New York State where he became employed. He is an accountant. He found himself unemployed from December 2002 until September 15, 2003. His support payments fell into arrears. Joan applied to F.R.O. to enforce arrears in September 2003. The sum in issue was $21,776.00. Mark made an agreement with F.R.O. to repay the arrears at $500.00 per month. He fulfilled that agreement. He then moved to the State of Tennessee where he found employment with Thomas & Betts Corporation. He lost that position August 17, 2008, owing to a restructuring. [4] When he left Thomas & Betts, he received a severance package and some stock options that he exercised. He secured his present position with Sunshine Enterprises Inc. October 30, 2008. [5] Mark’s income is now $80,000.00 US per annum. He now resides in Mississippi.

13Mark never sought and did not receive any relief from his support obligations by reason of his periods of unemployment. Eventually all arrears were paid.

14Mark remarried in January 2003. In 2001, he and his present wife executed a pre-nuptial agreement under the terms of which both are financially independent and completely separate as to property. Neither owes to the other any duty of support.

15Mark’s income over the years is a subject of some controversy because of exchange rates between the Canadian and American dollar and also due to receipts of money that Mark says were non-recurring events.

16Mark lives in a matrimonial home that is owned by his present wife. He contributes to that home an ongoing sum of $683.00 per month which is one third of the mortgage payment. Mark received an inheritance from his father’s estate in 2007, in the sum of $77,000.00. He spent much of that sum in repairs and improvements to his wife’s matrimonial home. [6] This inheritance was a capital sum. Mark was not obliged to expend it on spousal support or child support payments.

17On June 24, 2009, Joan received from Tulloch J., (as he then was), an order that Mark’s present wife make financial disclosure. Whether the order binds her is questionable, because she is a resident of the State of Mississippi. She has disregarded the order and I have no evidence that Mark was in a position to require her to comply. I can and do infer that Mark’s present wife assists him materially with his living costs, a fact which does make available a greater share of Mark’s income to assist Joan.

18It is clear on all the material that Mark and his present wife enjoy a comfortable living standard which is appreciably better than that of Joan and Caitlin.

19Mark suffers from health issues. He has Type II Diabetes, high blood pressure, gout, psycardosis which limits lung function, and knee problems resulting from two operations. [7]

20In August 2007, Mark first “broached” the subject of a variation of the divorce judgment. He says, and it is not disputed, that Joan reacted by “begging” him not to seek a variation and threatened to accuse him of assaulting Caitlin during the marriage, if he pursued it. This is an allegation that he emphatically denies. Joan responded by claiming that Mark simply wrote (e-mail) on August 24, 2007, and asked her to “disregard his recent letter.” However, that letter said:

“I had a discussion with my attorney in light of our conversation yesterday. I have instructed him to stand down presently as we carefully assess the current situation and status of support.

I will get back with you in a couple of weeks in a hopefully more reasonable & productive discussion regarding the support situation. Please do not go out and seek legal recourse as it is an unnecessary step at this point.

I do regret our heated discussion & hope to resolve any differences amicably to both our satisfaction.

Again, please ignore the recent letter sent.”

21This response tends to confirm Mark’s statement that something very unpleasant happened on receipt of his first inquiry about variation. This interchange is important because it shows that it was Mark, not Joan, who first broached the issue of variation and that Joan was clearly opposed. In the context of this exchange, I decline to place any construction on Mark’s request that Joan not seek legal advice at that time as some sort of misconduct on his part which dissuaded her from seeking a variation that she otherwise wanted. I interpret it as a simple statement that, since he has “stood down” in view of their conversation, it would be a waste of money to retain counsel then to respond to his request.

22Mark had significant expense arranging access to Caitlin between Tennessee and Mississippi and Canada. He never sought any reduction of child support by reason of those costs. However, even the whisper of criminal proceedings might well have made it difficult, and perhaps eventually impossible, for him to cross the border, for any reason. Since there is no reason to suspect that Mark had ever been guilty of any impropriety, it seems clear that the misconduct, if any, relating to this exchange was Joan’s. These facts can have a bearing on the appropriate start date of any variation order.

Joan’s History since Separation

23Joan remarried in 2002. That marriage failed. She separated in 2005. [8] Her second husband had many obligations and no means to support her. He does not. Ms. McClelland argued the motion on the basis that this remarriage, in view of its short duration, was not material, although Mark felt initially, and naturally, that it was.

24Following the divorce, Joan worked for a “two-year period during a fibromyalgia study that ended in April 2001.” [9] During coverture, she had completed a certificate in family life education. That certificate, she says, is not the equivalent of a degree program; it represents about 28% of a B.A. requirement. She says it did not qualify her to be a counsellor. [10] Joan asserts that owing to multiple health problems she has been and remains unable to find or maintain gainful employment. She says she suffers from “fibromyalgia, pernicious anemia, chronic myofascial pain disease, migraines, back problems, irritable bowel, irritable bladder, and chondritis, and other medical problems”. [11] No medical reports were filed to substantiate these conditions or their impact on Joan’s ability to pursue any sort of gainful occupation. However, she was awarded a CPP disability pension.

25That award constitutes some circumstantial evidence confirming a disability.

26I do not know when that CPP pension was awarded. The record discloses no evidence whatever of even the least effort on Joan’s part to attempt some form of retraining with a view to earning even a part-time income. In the eleven years that have passed since she stopped work at the age of forty-three, she might easily have completed her B.A. and begun to practice counselling or some related occupation. Counselling, or a like occupation, does not involve heavy lifting and can be undertaken on a part-time and very flexible schedule. I have no medical information suggesting that Joan’s medical condition prevents her from pursuing this kind of retraining.

27Mark asserted that Joan now has in her home, in Wiarton, Ontario, a basement apartment that she fails to rent in order to provide herself with additional revenue. Her response to this was that “there is an unusable space in the basement that could be an apartment if not for the repeated flooding and mold issues”. [12] She supports herself on her CPP disability pension of $700.00 per month and support payments that she receives from Mark.

28According to Joan’s affidavit (sworn in 2009), Caitlin suffers from “social anxiety disorder, chronic pain syndrome, and ADD. These debilitating conditions have necessitated that she receive weekly counselling and see a child care worker. Both of these free government services, as well as respite care, will stop at the end of the school year as she has turned eighteen. After June she will be seeing a counselor privately at the rate of $50.00 an hour. Caitlin will have expenses of $200.00 per month for her counselling.” [13] No medical report was filed to substantiate these conditions or their impact on Caitlin’s ability to function in the community.

29Despite my misgivings about Joan’s complaints, I consider that the award of the disability pension is prima facie evidence of disability and that I must accept that condition as evidence of Joan’s need.

30The law is clear that s. 17(7) of the Divorce Act does not impose on ex-spouses a duty to become self-sufficient. Rather the failure to become self-sufficient is simply one factor, amongst others, to take into account in assessing any variation. [14] It is not a factor that will weigh heavily in Joan’s favour.

(Decision continues exactly as in the original text.)