Boudreau v. Boudreau, 2012 ONSC 5633

SARNIA COURT FILE NO.: 6085-10

DATE: 20121010

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Bonnie Boudreau Applicant – and – Gary Boudreau Respondent

Bonnie Boudreau, acting in person

Gary Boudreau, acting in person

HEARD: October 4, 2012

Campbell j.:

1The respondent Gary Boudreau issued a motion to change August 10, 2010. That motion sought to change the order of Desotti J. made December 19, 2005.

2The respondent seeks to vary that portion of the order relating to spousal support. The applicant resists the application.

Background

3The applicant is 67 years old. The respondent is soon to be 62 years old. The parties began living together in 1969 and married December 19, 1974. They separated May 3, 2003. They are not yet divorced. The parties have two children of their marriage. Neither is financially dependent on them.

4Desotti J. first dealt with the issue of spousal support in his December 19, 2005 order. That order was made on consent when both parties were represented by counsel. Paragraph one of the order provided for retroactive support for 2004. Paragraph two provided support on an ongoing basis in the amount of $950 per month commencing January 1, 2006. The order states that it is based on the respondent having an income of approximately $42,000 and the applicant having an income of $16,000.

5Desotti J. dealt with the issue of spousal support again on December 2, 2010. He did so in the context of the respondent’s motion to change. At that time on an interim without prejudice basis he reduced spousal support to $600 per month, effective November 1, 2010. He fixed arrears owing by the respondent as of December 1, 2010, at $4,108.90. He directed the respondent pay the arrears at the rate of $150 per month.

Evidence

6At the commencement of the trial I noted that the parties had not filed a trial record. However, the parties indicated that they would be content if I reviewed the documents in the continuing record. Additionally, they agreed that the only issue was spousal support.

7The only witnesses to give evidence were the respondent and the applicant. The respondent’s evidence was that at the time of the separation he was employed on a full-time basis at Woodbridge Foam in Corunna. That employment continued until he was laid off in May 2010. Since that time he has not returned to full-time employment. He works part-time for a courier service, approximately four hours per day five days a week. He is in receipt of WSIB benefits and his CPP pension.

8The notices of assessment filed by respondent indicate that in 2007 his income was $42,424, in 2008 it was $43,465 and in 2009 his income was $40,443. That is, the respondent’s income from the date of Desotti J.’s order had not changed to any significant extent.

9In 2010, the respondent had a total income of $37,139.69. This included income from employment ($6,287.36), other employment income ($567.60), CPP benefits ($898.92), employment insurance benefits ($9,112), and a lump sum payment ($13,691.81). The latter sum appears to have been his severance from his employment with Woodbridge Foam.

10In 2011, the respondent had income totalling $32,343.12. This was employment income ($6,532.24), CPP benefits ($5,485), employment insurance benefits ($13,711) and WSIB benefits ($6,614.88).

11The respondent states his current income is approximately $800 per month from employment, $550 per month from WSIB, and $420 per month from CPP. He anticipates his 2012 income will be just over $21,000 per year. I find that his income is more likely to be in the $24,000 to $25,000 range. I base this on his employment income, his CPP and WSIB income for 2011. I also consider that his WSIB benefits are non-taxable.

12The respondent’s evidence was that he did inquire about retraining. He went to the employment centre to seek assistance. The only employment he has been able to find is the current position he has with the courier company. He considered attending college for the purpose of retraining. He went to Lambton College but was discouraged from applying for any Lambton programs. His evidence was college staff advised him that it was unlikely, given his age, that he would find any meaningful employment even after a retraining program. He accepted that advice.

13In cross-examination by the applicant, the respondent stated that he lived alone. He owns his own home which he inherited from his parents post-separation. He did encumber that home and used the funds for renovations. He denied sharing the home with anyone. He specifically denied having a live-in girlfriend or common-law spouse who shared household expenses.

14The applicant’s evidence was that she works on a part-time basis for Metro stores as a cashier. She has done that for a number of years. Her income is from employment, OAS and CPP. She anticipates her income for 2012 will be approximately $24,000. She lives alone in rented accommodations. Her financial circumstances are set out in her financial statement at Tab 9 of the continuing record.

Position of the Parties

15The respondent seeks an order terminating support as of October 1, 2012. He acknowledges his liability to pay support in accordance with the previous orders and any arrears under those orders to that date. He seeks a final termination of support. He argues that it is unlikely his income will increase over his working years and into his retirement.

16The applicant acknowledges that the respondent has done the best he can in his circumstances. However she argues that her circumstances are difficult and that he should continue to pay some support to her. She particularly argued that the respondent had not been careful with his financial resources since separation and she should not suffer the consequences of his carelessness.

Analysis

17The evidence of the parties was not to any significant sense contradictory. In her submissions the applicant acknowledged the respondent’s circumstances had changed and not as a result of anything he controlled. She was critical of how he utilized his severance. However I would note that the amount he received in severance could not have been invested to provide any significant income and was included in his income entirely in 2010.

18I have considered the provisions of s. 33(9) of the Family Law Act , R.S.O. 1990, c. F-3. Particularly the respondent’s ability to pay. Neither party has sufficient income to live anything other than a frugal lifestyle. Their financial statements and the oral evidence confirm that.

19The respondent does not have the ability at this time to pay support to the applicant. Indeed their incomes are roughly equivalent. A fact acknowledged by the applicant.

20This was a long-term marriage. It is not appropriate to terminate on a final basis the respondent’s obligation to the applicant. While I find at this time he is not able to pay support, it is conceivable that his financial circumstances might change in the future. In that circumstance the applicant may seek the court’s review of the respondent’s obligation.

21The order of Desotti J. need not be altered. I find, given the respondent’s income for 2011, that the proper amount of support he ought to have paid is that amount set by Desotti J. As well, he should satisfy the arrears as fixed in that order.

Conclusion

1. The respondent will be required to make all payments required by Desotti J.’s decision up to and including September 1, 2012.

2. Commencing October 1, 2012, the respondent shall pay to the applicant the sum of $1 per month for her support.

3. All arrears outstanding as a result of Desotti J.’s order of December 2, 2010, shall be paid at the rate of $150 per month.

22In my view this is not an appropriate case to consider costs.

Scott K. Campbell