ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-09-66134
DATE: 20120720

BETWEEN:

LARY J. RICHARDS Applicant – and – MARY SCUDIERI RICHARDS Respondent

M. Banasinski, for the Applicant
P. Buttigeig, for the Respondent

HEARD: May 16-18, 2012

MILLER, J.

[ 1 ] Lary and Mary Richards were married September 21, 1996. They separated February 14, 2009 but continued to share a residence until April 3, 2009. They have one child, Gabriel, born December 16, 1997.

[ 2 ] Both parties seek a divorce. Mr. Richards asks that income be imputed to Mrs. Richards for the purposes of calculating child support which he seeks from June 16, 2009. Mrs. Richards seeks spousal support from April 3, 2009. She agrees she should pay child support based on her actual earnings. Mr. Richards takes the position that Mrs. Richards is not entitled to spousal support and in the alternative that it should be calculated on her imputed income and should be time limited.

[ 3 ] On May 16, 2009 the parties presented Minutes of Settlement with respect to the disbursement of funds heretofore held in trust from the sale of the matrimonial home. There will be an order to go in accordance with the Minutes of Settlement filed.

Background

[ 4 ] Pursuant to a Request to Admit and the Response to Request to Admit which were exhibited at trial, the following facts are not in dispute:

[ 5 ] The parties were married September 21, 1996 and separated February 14, 2009. They have one child, Gabriel Richards born December 16, 1997. Following separation the parties lived separate and apart in the matrimonial home until April 3, 2009. Mrs. Richards continued to reside there until the home was sold.

[ 6 ] Custody and access issues were resolved pursuant to a final order made by van Rensburg, J. April 23, 2010. The parties have joint custody and Gabriel resides primarily with Mr. Richards and has done so since June 16, 2009.

[ 7 ] A without prejudice order made by Corbett, J. October 8, 2009 required Mrs. Richards to pay child support at $203 per month. The payment of child support was suspended, on consent, by order of O’Connor, J. made June 17, 2011 as of July 1, 2011. Child support arrears at that time were fixed at $0.

[ 8 ] Pursuant to the order made by O’Connor, J. made June 17, 2011 Mr. Richards was ordered, on a without prejudice basis, to pay $730 per month to Mrs. Richards as spousal support, based on an imputed income for her of $35,000 per year. The evidence at trial was that that was never paid. Mr. Richards testified that he assumed it was being deducted from his paycheque by FRO but it is difficult to believe that he then would not have noticed that amount was not being deducted.

[ 9 ] Mr. Richards has been employed as a consultant by CGI Information Systems and Management Consultants Inc. since July 17, 2000. He currently earns approximately $89,325 annually.

[ 10 ] Mrs. Richards has a university degree in economics and has many years of work experience in pharmaceutical market research.

[ 11 ] In March 2007 Mrs. Richards worked for Bayer, Inc. And was terminated during her probationary period in June 2007. During the period of employment with Bayer she received $22,074.39. This is equivalent to an annual salary of approximately $88,000.

[ 12 ] From November 2007 through June 2008 Mrs. Richards worked on contract for Nycomed. The annual remuneration was $90,000 per year.

[ 13 ] From June 2008 through October 2010 Mrs. Richards was unemployed. From October 2010 to January 29, 2011 Mrs. Richards worked at a BMO call centre earning an annual salary of $29,600. She was terminated during her probationary period.

[ 14 ] Mrs. Richards obtained employment with a temp agency in September 2011 and continues to be employed through that agency earning $17-18 per hour or approximately. $35,000 annually, on a fulltime basis.

Imputation of Income

[ 15 ] It is Mr. Richard’s position that Mrs. Richards is intentionally under-employed. He asks that I impute income to Mrs. Richards of at least $60,000.

[ 16 ] Mrs. Richards takes the position that she has been doing everything possible to earn become fully employed and no income should be imputed to her.

[ 17 ] Mrs. Richards graduated with a B.A. in Economics in 1981. Before meeting Mr. Richards in 1996 Mrs Richards was working at Ciba-Geigy as a market research analyst. She had worked for that company in various capacities since 1985. It merged with Biovail in 1996. Mrs. Richards began working for Biovail.

[ 18 ] Mrs. Richards immediately, and right around the time of the marriage in September 1996 began working at Biovail in market research as a business analysis manager. She continued working at Biovail, except for 6 month maternity leave following the birth of Gabriel, on a fulltime basis until June 2005. In 2005 the company underwent a merger (becoming Novartis) and Mrs. Richards chose to take a package offered to her. At that time her department was dissolved, but Mrs. Richards continued working for the company on short-term contracts until June of 2006.

[ 19 ] In 2005 Mrs. Richards earned $96,554 including stock options. She also received $31,287 in severance when her fulltime employment was terminated.

[ 20 ] In 2006 Mrs. Richards earned $58,407 through her contract employment with Biovail.

[ 21 ] Mrs. Richards testified that she took the summer of 2006 off to spend some time with Gabriel. In the result the parties saved the cost (incurred during other summers) of sending Gabriel to camps. She testified that she began seriously looking for other employment towards the end of the summer and was able to secure employment

[ 22 ] In 2007 Mrs. Richards earned $33,074 and received an additional $12,390 in employment insurance payments.

[ 23 ] In 2008 Mrs. Richards earned $47,310 and received an additional $9,171 in employment insurance payments.

[ 24 ] In 2009 Mrs. Richards received $88 in dividends and $2,175 in employment insurance payments. She supported herself by cashing in $45,686 in RRSP’s.

[ 25 ] In 2010 Mrs. Richards earned $6,393 and supported herself by cashing in $50,459 in RRSP’s.

[ 26 ] In 2011 Mrs. Richards earned $18,316. She did not need to collapse any RRSP’s last year due to a disbursement to each of the parties of $150,000 from the proceeds of sale of the matrimonial home.

[ 27 ] Mr. Richards gave evidence that he has himself conducted internet searches for full-time jobs Mrs. Richards might qualify for that would earn her something above $22,000 per year. Some of these were submitted along with the Request to Admit. One – at Millenium Research Group Mrs. Richards had already unsuccessfully applied for. The other six, as pointed out in her Response to request to Admit, Mrs. Richards is not qualified for.

[ 28 ] Mr. Richards also included, at Tabs 19 and 24 of Exhibit # 1, the results of internet searches he did between May 9 and 14, 2012 for jobs for Mrs. Richards he felt she would qualify for. I note that counsel for Mrs. Richards objected to the fact these had not been provided to him until the morning of trial and that Mrs. Richards had not had an appropriate opportunity to respond. I admitted the evidence but indicated that I would take into account the late disclosure in assessing what weight to give the evidence. I note that Mr. Richards testified that he did not share with Mrs. Richards the results of his job search for her. It appears he simply wished to demonstrate how easy it would be for Mrs. Richards to find fulltime employment.

[ 29 ] Mrs. Richards testified and provided significant documentary evidence about the duration and depth of her efforts to obtain full-time employment in her field. These efforts have been largely unsuccessful and Mrs. Richards has taken on temp employment in order to earn some income. I accept that her efforts to obtain employment that would earn her something similar to what she has earned in the past have been genuine and extensive. I accept that her acceptance of lower-paid work on a temporary basis is a genuine effort on her part to earn what income she can.

[ 30 ] I do not find that Mrs. Richards is intentionally unemployed or under-employed. There will be no imputation of her income.

Child Support

[ 31 ] Gabriel resides primarily with Mr. Richards and has since June 16, 2009. There is no issue that Mrs. Richards should be paying child support.

[ 32 ] Section 19 of the Child Support Guidelines (Ontario) provides the Court with discretion to impute income to a parent where appropriate in circumstances which include that the parent is intentionally unemployed or underemployed. As noted above, I do not find that Mrs. Richards is intentionally unemployed or under-employed.

[ 33 ] Based on an annual income of $47,949 in 2009 and applying the Federal Child Support Guidelines , Mrs. Richards is ordered to pay $433 per month for six months totalling $2,598 less the $406 she paid pursuant to the order made by Corbett, J. made October 8, 2009 for a total of $2,192.

[ 34 ] Based on an annual income of $56,854 in 2010 and applying the Federal Child Support Guidelines , Mrs. Richards is ordered to pay $516 per month for 12 months totalling $6,192 less the $2,436 she paid pursuant to the order made by Corbett, J. made October 8, 2009 for a total of $3,756.

[ 35 ] Based on an annual income of $18,316 in 2011 and applying the Federal Child Support Guidelines , Mrs. Richards is ordered to pay $145 per month for 12 months totalling $1,740 less the $1,218 she paid pursuant to the order made by Corbett, J. made October 8, 2009 and suspended by O’Connor, J. June 17, 2011 for a total of $522.

[ 36 ] Based on an annual income of $18,316 in 2011 and applying the Federal Child Support Guidelines , Mrs. Richards is ordered to pay $145 per month to the end of July totalling $1,015.

[ 37 ] Mrs. Richards is ordered to pay child support of $145 per month on an ongoing basis, commencing August 1, 2012 subject to a readjustment based on her 2011 income tax information.

[ 38 ] The parties are ordered to exchange as soon as possible for 2012, and by June 1 of 2013 and each year thereafter, their respective income tax returns and notices of assessment for the preceding year.

[ 39 ] Child support shall be recalculated in accordance with the Federal Child Support Guidelines based on the previous year’s income and the recalculated amount shall take effect on July 1 each year.

Spousal Support

[ 40 ] Under the Divorce Act at s.15.2(4) , factors to be considered in making an order for spousal support arethe condition, means, needs and other circumstances of each spouse, including

a. ( a ) the length of time the spouses cohabited;
b. ( b ) the functions performed by each spouse during cohabitation; and
c. ( c ) any order, agreement or arrangement relating to support of either spouse.

[ 41 ] The objectives of a spousal support order, as set out at s.15.2(6) are to

a. ( a ) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
b. ( 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. ( c ) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
d. ( d ) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[ 42 ] Both parties testified about their respective roles during the marriage. I found that both parties exaggerated their testimony in respect of their respective involvement with Gabriel, however it was clear that the bulk of childcare responsibilities fell to Mr. Richards while Mrs. Richards was employed full-time. Mr. Richards continued to be involved with Gabriel in a significant way even while Mrs. Richards was unemployed and able to spend more time with Gabriel.

[ 43 ] The evidence is clear that the parties both contributed and merged their earnings to be used for the family as a whole. In the result, the family, including Mr. Richards benefited significantly from the higher earnings of Mrs. Richards during the early part of their marriage.

[ 44 ] As the parties pooled their earnings, Mrs. Richards also benefited from Mr. Richards’ earnings during the periods of her unemployment.

[ 45 ] Mr. Richards relies on the Ontario Court of Appeal decision in Cassidy v. McNeil 2010 ONCA 218 at paragraph 65 in support of his position that Mrs. Richards must establish the necessary prerequisite for entitlement to spousal support. I note that at paragraph 69 the Court found that entitlement in that case was established by evidence of an economic merger of the parties interests during the marriage in addition to the wife’s somewhat compromised career path.

[ 46 ] Mr. Richards takes the position that the parties were economically self-sufficient during the marriage and should continue to be so after the marriage broke down. He relies on the decision of the Northwest Territories Court of Appeal in McGrath v. Holmes [1995] N.W.T.J. No. 3 where the Court found at paragraph 29 that it was “one of the rare cases where both parties were self-sufficient throughout the marriage”.

[ 47 ] Mrs. Richards argues that she has established entitlement and cites the comments of Whalen, J. in Colquhoun v. Colquhoun [2007] O.J. No. 9 referencing the Supreme Court of Canada decision in Bracklow v. Bracklow 1999 715 (SCC) , [1999] 1 S.C.R. 420 at paragraph 49 with respect to entitlement to spousal support: entitlement to spousal support is justified on three conceptual grounds, namely: (1) compensatory; (2) contractual, and; (3) non-compensatory.

[ 48 ] Whalen, J. at paragraphs 184-5 of Colquhoun , indicated:

At one end of the spectrum, the "mutual obligation model" of spousal support stresses the interdependencies of the marital relationship, the expectations and obligations that arise as a result, and the difficulty of unravelling interdependencies when the relationship breaks down. This model is the theoretical basis for non-compensatory spousal support, which places emphasis on the means and needs of the spouses, their actual circumstances and whether they can realistically fend for themselves. There is an underlying concern for need that arises from the very fact of the relationship and the resulting dependency. Need may transcend concerns of contract and compensation. As McLachlin C.J.C. stated in Bracklow (supra.) at paragraph 43: "Need alone may be enough."

At the other end of the spectrum, the "independence model" characterizes relationships as being between autonomous actors who can unilaterally make a clean break, and after compensating the other spouse in a restitutionary fashion for any economic costs flowing from the relationship, may move on with his or her life. This model is the theoretical underpinning for compensatory support. It strives to compensate a spouse for contributions to the marriage (such as assuming a certain function during the relationship) or sacrifices made (such as foregoing career opportunity).

[ 49 ] Taking these factors into consideration I am satisfied that Mrs. Richards has established entitlement to spousal support. The facts establish an economic interdependency during the marriage. Mrs. Richards’ living conditions following separation have significantly deteriorated and she has a clear need. I am satisfied that she is doing what she can to be self-sufficient but for reasons beyond her control she has been unable, to date, to do so.

[ 50 ] I am also satisfied that Mr. Richards has the ability to pay.

[ 51 ] I am satisfied that Mr. Richards had sufficient notice of Mrs. Richards’ claim for spousal support and a clear awareness of her circumstances such that spousal support should be payable from April 3, 2009.

[ 52 ] I have considered whether spousal support should be time limited. At the moment it appears that Mrs. Richards’ economic future remains uncertain. At the same time it would appear that she possesses sufficient skill and experience to be able to support herself economically eventually, even if that may require some retraining. I am also persuaded that Mrs. Richards has a genuine interest in becoming economically self-sufficient. I am prepared to order spousal support on an indefinite basis but allow for a review of the parties’ respective situations if there is a material change in either of their circumstances.

[ 53 ] For the year 2009, Mr. Richards’ income was $125,071, taking into account disability benefits received by him that year. Applying the Spousal Support Advisory Guidelines , Mr. Richards’ spousal support obligations for 2009 were $1,234 monthly for nine months totalling $11,106. Mr. Richards is given credit for half of the $6,000 he transferred to Mrs. Richards in April 2009. The total for 2009 is $8,106.

[ 54 ] For the year 2010, Mr. Richards’ income was $131,630, taking into account disability benefits received by him that year. Applying the Spousal Support Advisory Guidelines , Mr. Richards’ spousal support obligations for 2010 were $1,277 monthly for 12 months totalling $15,324.

[ 55 ] For the year 2011, Mr. Richards’ income was $90,101. Applying the Spousal Support Advisory Guidelines , Mr. Richards’ spousal support obligations for 2011 were $1,140 monthly for 12 months totalling $13,680. Mr. Richards is given credit for the $2,200 he paid to Mrs. Richards pursuant to the May 12, 2011 order of Patillo, J. The total for 2011 is $11,480.

[ 56 ] For the year 2012, using Mr. Richards’ income for 2011of $90,101 and applying the Spousal Support Advisory Guidelines , Mr. Richards’ spousal support obligations for 2012 were $1,140 monthly through July 2012. The total for 2012 is $7,980 to date.

[ 57 ] Mr. Richards is ordered to pay ongoing spousal support to Mrs. Richards at $1,140 per month commencing August 1, 2012 subject to an adjustment based on their 2011 income tax information.

[ 58 ] Mrs. Richards’ arrears of child support to date total $7,485.

[ 59 ] Mr. Richards’ arrears of spousal support to date total $42,890.

[ 60 ] Subtracting one from the other, $35,405 is payable by Mr. Richards to Mrs. Richards in arrears of support to July 31, 2012.

Orders

[ 61 ] There will be an order to go in accordance with the Minutes of Settlement filed May 16, 2009.

[ 62 ] The parties, who were married September 21, 1999 shall be divorced. The divorce shall take effect 31 days from the date of this order.

[ 63 ] $35,405 is payable by Mr. Richards to Mrs. Richards in arrears of support to July 31, 2012.

[ 64 ] The parties are ordered to exchange as soon as possible for 2012, and by June 1 of 2013 and each year thereafter, their respective income tax returns and notices of assessment for the preceding year.

[ 65 ] Child support shall be recalculated in accordance with the Federal Child Support Guidelines based on the previous year’s income and the recalculated amount shall take effect on July 1 each year.

[ 66 ] Mrs. Richards is ordered to pay child support of $145 per month on an ongoing basis, commencing August 1, 2012 subject to a readjustment based on her 2011 income tax information.

[ 67 ] Spousal support shall be recalculated in accordance with the Spousal Support Advisory Guidelines based on the previous year’s income and the recalculated amount shall take effect on July 1 each year.

[ 68 ] Mr. Richards is ordered to pay ongoing spousal support to Mrs. Richards at $1,140 per month commencing August 1, 2012 subject to an adjustment based on their 2011 income tax information.

[ 69 ] The parties may exchange and file written submissions as to costs no later than August 31, 2012.

MILLER, J.

Released: July 20, 2012