SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FC-11-2088-0
DATE: 2012/08/16

RE: REGENT JOSEPH ALFRED ST-ONGE, Applicant

AND

ROXANNE MARIE CLAIRE DESY, Respondent

BEFORE: Kane J.

COUNSEL:
Blake R. Lyngseth, counsel for the Applicant
Leslie Robertson, counsel for the Respondent

HEARD: August 10, 2012

ENDORSEMENT

[ 1 ] The respondent in this motion seeks interim and retroactive spousal support in the monthly amount of $2,101 and $1,542 respectively, dating back to February, 2010. The applicant by cross-motion seeks severance of the claim for divorce permitting it to proceed independently.

[ 2 ] The applicant husband began this application in August, 2011 for a divorce. The wife in her October, 2011 answer claims spousal support and an unequal division of property.

[ 3 ] The parties were married in 1990 and separated in March, 2009. They have two daughters in university. Neither daughter resides with a parent. One, aged 23 is working on her second university degree. The other daughter, presently 22 years old, is working towards her first university degree.

[ 4 ] The applicant previously served in the Canadian military, was diagnosed with PTSD in 2000 and released for medical reasons in 2004. He also suffers from chronic pain. The applicant is in receipt of a military and CPP disability pension. Combined, they pay current annual income of $59,000.

[ 5 ] The applicant established and operated a martial arts studio between 1999 and 2007. The applicant transferred the studio to another karate instructor in 2007. He and the transferees state that no money was paid for the transfer of the then small studio, nor has any money been paid for the occasional class the applicant teaches since the transfer took place. Based on the affidavits of the transferees, I am not prepared to impute additional income to the applicant at this point.

[ 6 ] The respondent wife earned some $33,000 income in 2009. She is being treated for depression and anxiety. She qualified for Ontario Works benefits including subsidized housing and ODSP support, in June and December, 2011 respectively. Her declared income in 2010 was some $11,000. Her current annual ODSP support payments total some $9,800, plus benefits which includes housing and medication.

[ 7 ] The respondent’s financial situation is and was bleak for the last few years. Prior to ODSP, it involved long periods of unemployment, use of food banks and residing in the home of others. ODSP has required the respondent to bring this motion for support.

[ 8 ] Prior to separation, the respondent wife’s employment followed and accommodated her husband’s postings in Canada which resulted in a number of lower paying periods of employment. She spent considerable time at home caring for this couple’s children. Child rearing and relocating due to moves by the military interrupted her employment history and reduced her income earning capacity. There is therefore a compensatory element.

[ 9 ] Prior to ODSP, the respondent mother worked for several months in the fall of 2010. Her remuneration during this period is currently uncertain. She attempted, apparently with limited success, to work as a house cleaner in 2010 and/or 2011. Financial evidence as to this is very thin. I am not prepared on the evidence before me to impute income currently to the respondent above her present entitlement from ODSP. That leaves her at the range of $9,800 per year plus benefits including housing.

[ 10 ] The applicant acknowledges the wife’s entitlement to spousal support. The issue is quantum of interim and arrears of spousal support.

[ 11 ] Each daughter is grateful to the father for the financial assistance he has provided them while in school. Under the applicant’s military pension and/or his disability pension, each daughter currently receives a monthly amount of $453 and $389 respectively. They have summer and/or part-time jobs and student loans/bursaries for school and living expenses.

[ 12 ] Their father also pays each of his daughters, on average, $500 per month to assist in their expenses during this period of study. The father claims this $1,000 as s. 7 expenses thereby reducing his available income to pay spousal support. The applicant contests this support to the daughters as an allowable expense in considering capacity to pay.

[ 13 ] While respecting what this father is doing for his daughters and their futures, each already receives the above monthly benefits as a child of a military pensioner.

[ 14 ] Child support has priority over spousal support under the Divorce Act , R.S.C. 1985, c.3 (2nd Supp.), see s. 16.3 (1) and Brown v. Brown , 2004 CarswellOnt 2411 (S.C.J.), para. 89 . Child support and s. 7 expenses in relation thereto, are not ordered or claimed thereby distinguishing the above priority principle.

[ 15 ] The daughters’ financial positions are not in addition in evidence. These daughters face the common financial struggle of students to meet the costs of post secondary education.

[ 16 ] This $12,000 voluntary assistance by the father to his daughters does not qualify as s. 7 expenses. Nor can its payment constitute the father’s incapacity to pay interim spousal support. Absent this $1,000 per month, the applicant shows a shortfall of revenue over expenses of some $100 per month.

[ 17 ] It is uncontested that the applicant since separation has been saddled with almost all of the resulting family debt, particularly given the respondent’s assignment in bankruptcy mid-2010. Responsibility for this debt is not a shield to payment of spousal support but is a factor which the court should consider in examining the payor’s capacity to pay, see, Homeyer v. Homeyer , [1994] B.C.J. No. 1406 (B.C.S.C.), para. 21 and Borden v. Racicot , [2003] O.J. No. 2838, para. 22 .

[ 18 ] Based on their current annual income levels of $59,000 and $12,000 ($9,800 plus subsidized housing), DivorceMate calculations at the mid-range indicate interim spousal support of some $1,500 per month. The applicant shall pay interim spousal support commencing September 1, 2012, in the amount of $1,400.

[ 19 ] Retroactive spousal support is problematic for a number of reasons. There is a host of contradictory evidence but those largely relate to financial events between 2007 and 2011.

[ 20 ] It is uncontested that the respondent’s financial position has been desperate for some time. Her delay in negotiations and not pursuing her claim for interim spousal support is explained by her state of health and financial incapacity to retain counsel.

[ 21 ] Notwithstanding the numerous contradictions in the historical evidence and having determined that there is and was need and some limited capacity to pay, the applicant’s obligation to have paid some past spousal support appears clear.

[ 22 ] As part of this interim order, the court partially grants the claim of past spousal support for the period January 1, 2012, to August 30, 2012, in the amount of $1,000 per month. That $8,000 of arrears shall be paid at the rate of $800 per month commencing September 1, 2012, and on the 1 st of each month thereafter until paid.

[ 23 ] Interim spousal support shall be paid to and recoverable by the Family Responsibility Office (FRO) and shall include costs as referred to below.

[ 24 ] The applicant seeks an order severing the claim for divorce. He wishes to move forward in a new relationship. The wife opposes that but has not provided justification how that will impede her legal rights in this action. Accordingly, the claim for divorce is severed from the other claims and may proceed independently.

[ 25 ] The parties may each amend their pleading to include new or amended relief by no later than September 7, 2012.

[ 26 ] The disclosure required in the March 5, 2012, Temporary Minutes of Settlement, plus each providing the other with a photocopy of their monthly bank account statements since January 1, 2012, are to be delivered by September 7, 2012.

[ 27 ] The outcome of these motions materially favours the respondent’s position. This outcome as to the payment of some spousal support on these facts was apparent. Costs are payable on these motions to the respondent, fixed in the amount of $1,500 and payable at the rate of $400 per month commencing September 1, 2012.

Kane J.

Date: August 16, 2012

ONTARIO SUPERIOR COURT OF JUSTICE RE: REGENT JOSEPH ALFRED ST-ONGE, Applicant AND ROXANNE MARIE CLAIRE DESY, Respondent COUNSEL: Blake R. Lyngseth, counsel for the Applicant Leslie Robertson, counsel for the Respondent, BEFORE: Kane J. ENDORSEMENT Kane J.

Released: August 16, 2012