ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No. 04-FA-12854-001
Date: 20121019

B E T W E E N:

ERIC NEIL WEGLER (Applicant)

Ms. Faryal Rashid for the Applicant Husband

• and -

RISE LYNN WEGLER (Respondent)

Mr. Ken H. Nathens for the Respondent Wife

HEARD: July 19, 2012

M.A. SANDERSON J.

Reasons for Decision

INTRODUCTION

[ 1 ] This is a motion by the ex-husband Eric Wegler ("Eric") to change (reduce or eliminate) spousal support payable to Rise Wegler ("Rise"), his ex-wife, an order that he be relieved of any obligation to pay child support in respect of his and Rise's daughter Faryn, who graduated from the University of Western Ontario in April 2012 and for a reduction in child support for Kira, who lives away from home while attending university. Eric also seeks to be relieved of a condition in the divorce Order dated November 1, 2002, that he provide proof of term life insurance with Rise as beneficiary in the amount of $500,000 to continue until child support is no longer payable. Rise has brought a cross-motion to increase her spousal support in conformity with the Spousal Support Advisory Guidelines ("SSAGs") and for payment of arrears.

ISSUES

[ 2 ] (1) What child support should be payable for Faryn, Kira and Maya?

[ 3 ] (2) What spousal support should be payable to Rise, if any, and on what basis?

[ 4 ] (3) Should the condition of $500,000 term life insurance policy to secure child and spousal support payments remain in place?

[ 5 ] (4) What arrears are owing, if any?

THE FACTS

[ 6 ] Many of the facts relevant to the child and spousal support motions are uncontentious.

[ 7 ] This was a 14 year traditional marriage. The parties married on July 25, 1986 and had three children: Faryn born March 5, 1990, Kira born September 15, 1992 and Maya born on April 13, 1998. They separated on September 25, 2000 and divorced in March 2002.

[ 8 ] Rise was 42 when the parties separated, Faryn was 10, Kira 8, Maya 2.

[ 9 ] When they married in 1986, Eric had already finished a degree at the University of Western Ontario and was working as a chartered accountant at KPMG.

[ 10 ] Rise had attended teachers' college for two years but had not completed teacher training. She had taken training as a medical secretary. At the time of their marriage she was working in that capacity at St. Michael's Hospital. She continued working as a medical secretary until her maternity leave for Faryn's birth [in March 1990.]

[ 11 ] A pattern was established during the marriage. The husband worked long hours and the wife enabled him to do so by taking care of the family.

[ 12 ] By the time of the divorce trial in 2002, Rise and Eric had agreed that Rise would be the custodial parent. He was to have access to the children every second weekend and for dinner every second Wednesday. They had agreed on an equalization of assets.

[ 13 ] Although the parties disagreed about what they had planned after the children were in school, there was no dispute that they had agreed that Rise would stay at home at least until Maya started school in September 2004, four years post-separation.

[ 14 ] Once Maya was in Grade 1, Rise did start to work as a medical secretary on a part-time basis from 8:30-12:30, four mornings a week. She continued working on that basis until October 2010, when her employer, Dr. Green, retired.

[ 15 ] Just as during the marriage, since its dissolution, Rise has borne the child care responsibilities almost single-handedly.

[ 16 ] Eric's current income is $263,000 per year.

Child Support

Faryn

[ 17 ] In September 2008, Faryn started university at the University of Western Ontario, where she studied media, information and techno-culture. She lived away from Rise's home between September and April except for vacations and some weekends. She was away working as a camp counselor for part of the summer of 2008. During the summers of 2010 and 2011, she lived with Rise while she worked as an unpaid intern.

[ 18 ] Between September 2008 and April 2012, Eric paid full table support on a 12 month per year basis plus 50% of Faryn's s. 7 university costs. When Faryn graduated in April of 2012, he unilaterally stopped paying child support for Faryn.

[ 19 ] Eric gave evidence that while at the time of her graduation in April 2012, Faryn intended to seek full-time employment, she later decided to live with Rise and attend Seneca College starting in the fall of 2012 to obtain a diploma in Visual Arts & Merchandising.

[ 20 ] Rise and Eric disagree on the desirability and utility of the course Faryn has now chosen.

[ 21 ] Eric said he would have wholly endorsed and supported a post-graduate degree related to her earlier studies. In his view, her first degree related to publishing. The Seneca diploma would teach her to be a "window dresser for a retail store."

[ 22 ] Eric notes this is not a post-graduate degree. He questions how helpful it will be to her and whether it is sufficiently related to her undergraduate degree. Nevertheless, he is prepared to pay 50% of the costs of the program directly to Faryn.

[ 23 ] There was evidence that an apartment during the school year at Seneca would cost $6,420. Her expenses of food and other necessaries would be additional costs.

[ 24 ] Faryn has about $10,000 in savings.

[ 25 ] Eric and Rise disagreed about whether Faryn should have worked in the summer of 2012. Rise maintained she couldn't get a job. Eric suggested Rise discouraged her from working because she and Faryn were travelling together to Chicago at the end of July.

Kira

[ 26 ] Kira started university away from home at the University of Western Ontario in September 2010. During the summer of 2012 for seven weeks, she worked as a lifeguard at a summer camp. After paying room and board, she earned $1500.

[ 27 ] Eric agreed to pay table support for Kira in the summer months and his proportionate share of her university expenses.

[ 28 ] Kira has about $4,000 in savings.

Maya

[ 29 ] In September 2012, Maya started Grade 9 at a high school located about 1 km from Rise's home. Every summer she goes to Camp Tamarack (a s. 7 expense of about $6000.)

[ 30 ] For Maya, Eric is prepared to pay table support and s. 7 expenses including his share of the cost of Camp Tamarack.

Spousal Support

[ 31 ] At the time of the divorce, commencing March 1, 2002, Eric was to pay Rise spousal support of $1200 per month, to be reviewed at Eric's option on or after March 1, 2005.

[ 32 ] Eric applied for review of spousal support. Eric gave evidence that the 2005 review was to focus on Rise's progress in achieving self-sufficiency. In 2005-2006, she was taking university courses part-time. As of March 2006, she didn't think she was self-sufficient yet. She told Eric she needed more time. She wanted increased spousal support. On the eve of trial in May 2006, the parties reached an agreement that he would continue to pay her spousal support of $1700 per month reviewable at the option of Eric at any time after March 31, 2011. A consent order was issued. They agreed to share the s. 7 expenses on a 75/25 split except university expenses, which were to be shared on a 50/50 basis.

[ 33 ] When Eric exercised his option for a 2011 review pursuant to the May 19, 2006 Order, counsel for Rise submitted that she should not be bound to accept the $1700 per month, but should be entitled to receive spousal support determined under the Spousal Support Guidelines.

[ 34 ] When he agreed in 2006 to pay $1700 per month in spousal support, Rise was yet to re-partner. By the summer of 2007, she was living at least part-time with a Mr. Bernie Wasserman ("Bernie"), an engineer.

[ 35 ] On November 17, 2009, Rise and Bernie entered into a cohabitation agreement (Ex. 24), paragraph 5.1 of which provides: "The parties acknowledge that Rise's continued cohabitation may affect her rights to receive spousal support from her former husband."

[ 36 ] Paragraph 1.7 includes the following: "They plan to purchase together a new home in the near future." Paragraph 2.5 provides that with respect to that residence, "Each party will be expected to contribute to the maintenance, upkeep, utilities… not necessarily equally but to the extent he or she is able."

[ 37 ] In early 2010, Rise advised Eric that she and Bernie had purchased a home together for $730,000.

[ 38 ] Rise and Eric could not agree on the effect that Rise's re-partnering should have on Eric's continuing spousal support obligations.

[ 39 ] At the time of the hearing in July 2012, Rise and Bernie had lived together 2½ years. Her evidence was unclear as to how her repartnering has affected the quantum of her ongoing living expenses. On the subject of splitting their housing expenses, she said at first that she pays 50% and Bernie pays 50%. She later said that if Bernie's adult son is living with them, Bernie pays 40% and she pays 60%. If the son is not there, she pays 65% and he pays 35%. When her three daughters are at home, she pays 65%. Of total grocery costs of $1300 per month, Bernie pays 30% and she pays $1000.

[ 40 ] Her financial statement filed in these proceedings indicates that she pays $600 per month for property taxes. She gave evidence Bernie pays $150 per month. She could not specify the total amount of the property taxes on their home. [There was evidence that in 2009, the municipal taxes on that house were $5,373 per year, or $447.75 per month.]

[ 41 ] Rise did not include her investment income on her financial statement, which she estimated at $7,750 in 2011.

[ 42 ] Starting October 18, 2010, Rise worked from 8:30a.m. to 4:30p.m., three days per week at St. Michael's Hospital. However, that employment ended on November 15, 2010. She was on unemployment insurance for 10 months. She has not worked since November 2010, although she gave evidence that she has been attempting to find work as a medical secretary during the hours Maya is in school, which allows her to "address Maya's needs."

[ 43 ] Eric gave evidence they each received $850,000 at the time of the divorce. She said they each received $750,000.

[ 44 ] At trial, Rise estimated her present net worth to be $961,000.

[ 45 ] Rise would like post-secondary costs to be shared 75/25. If she were to receive full child support for all three daughters, she would agree to a 50/50 split for post-secondary costs.

[ 46 ] While Faryn and Kira pay personal entertainment expenses, Rise gave evidence that she has been using child support money to pay 100% of their transportation, clothing, shoes, toiletries and cell phone costs; when they are home she provides them with spending money. They use her car. She insures them and pays for their gas.

[ 47 ] She admitted that Faryn applied for Ontario Student Assistance (OSAP), a loan of $5,000 and $1,000 grant based on her reported income plus Faryn's income. After she received it she banked the loan portion and repaid it when Faryn graduated.

[ 48 ] Rise gave evidence that when Faryn was 13, it was discovered she has a "profound" hearing deficit. She may eventually lose her hearing altogether. Rise recently had to make special arrangements, e.g., note-taking for Faryn's upcoming studies at Seneca. It was a "big endeavour to look into all of this." However, she agreed in cross-examination that Faryn applied to Seneca "online without me helping her." In cross-examination she said, "She tries her best to use her cellphone as a telephone."

[ 49 ] Eric downplayed Faryn's hearing difficulties, saying, "They are treatable by supplying new hearing aids every few years."

[ 50 ] Maya has defiance issues. Rise takes her to see a psychologist, Dr. Taub, "on a weekly basis as necessary" (since July 2006 about once per month) and once per week to see a social worker at Southlake Hospital in Newmarket.

[ 51 ] Rise gave evidence that dealing with Maya's defiance is "a full-time job on its own." Because Eric continues to work long hours, 7:30 a.m.-7:00 p.m., he is unavailable to take Maya to counseling sessions or other activities.

[ 52 ] Rise said in effect that she has devoted her life to the children, putting her life on hold for her family. Because of her family obligations, she has had little opportunity to explore other opportunities. In her mind, her past and continuing obligations to the children make ongoing spousal support from Eric "fair."

[ 53 ] She said she has been able to take only 1 or 2 courses at a time. In 2010, she graduated from a three year Bachelor of Arts program. In the year after her graduation in 2010, she took no courses at all.

[ 54 ] Now she maintains that she needs a 4 year B.A. to gain entrance to graduate school. She said she can't get into teaching with a 3 year degree. She needs to complete four more courses to graduate from a 4 year degree. At present her long-term plan is to finish a 4 year degree by the end of April 2014 and then to try to get into teacher's college in Guelph or Oshawa. A Master's in Education would take a year or two. She would like to obtain a Master's degree and work with children.

[ 55 ] I accept Rise's evidence that during the marriage, her child care responsibilities adversely affected her earnings and earning potential. To this day, her child care responsibilities continue to curtail her earning capacity and to enhance Eric's. I find Rise has in the past and continues at present to bear the lion's share of responsibility for seeking to the needs of the children. Eric has met with Maya's psychologist Dr. Taub only once in the past six years. In cross-examination, it became evident that Eric is unfamiliar with Maya's present problems and treatments. I find Eric understated Maya's present difficulties. For instance, he thought she is receiving group therapy at Southlake Hospital, when in fact she receives individual counseling.

[ 56 ] The fact that Rise's childcare duties extended well beyond the date of separation made it next to impossible for her to achieve economic self-sufficiency.

[ 57 ] Here the parties were financially interdependent. She was economically disadvantaged disproportionately and he was economically advantaged during the marriage and after the separation by her assumption of the childcare duties, leaving him free to pursue his career unfettered by childcare responsibilities. This continued after the separation and continues today, although to a lesser extent than at the time of the separation. Her responsibilities vis-à-vis Maya and to a lesser extent Faryn and Kira, while they do not materially affect her ability to seek full-time work, keep her from working the long hours Eric is free to work.

[ 58 ] Now Maya is starting high school, she could drive herself to her own appointments. While her difficulties continue, in my view Rise could do full-time work without adversely affecting her.

[ 59 ] When Maya is totally independent, Rise will be largely free to pursue her own ambitions unfettered. However, by then, she will be in her late 50s. That in itself will adversely affect her earning potential.

[ 60 ] In this case, given her continuing responsibilities and her age at the time those responsibilities will completely cease, the wife on her own cannot realistically replicate, the joint standard enjoyed during the marriage. As her children's needs have decreased, her working capacity has increased, but even that ability must be viewed in the context of lost opportunities for training and advancement in the interim.

[ 61 ] Although Rise has been pursuing post-secondary education, by the time she finishes her 4 year degree and Master's, she will have reached the age at which many teachers have already retired.

[ 62 ] I find Rise suffers from some continuing economic disadvantage from the marriage and the child care responsibilities she assumed during the marriage which continue to the present time. Her economic disadvantage from marriage will likely continue indefinitely, even though the marriage was medium term and she does not meet the rule of 65.

[ 63 ] At the same time, I find she overstated the effect on her ability to pursue her education and work fulltime of her past and present child care responsibilities.

[ 64 ] I am of the view that she could and should have retrained at a faster rate.

[ 65 ] By now she should have been more self-sufficient than she is. That said, given her almost exclusive assumption of child care responsibilities, even had she aggressively retrained, she would never have been able to generate the earnings Eric can, in large measure because he has been saddled with minimal child care responsibilities.

(Decision continues exactly as in source…)

M.A. SANDERSON

Released: October 19, 2012