ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Abdirashid Mohamed Isse Applicant - and - Linda A. Said Respondent

Self-Represented M. Lannan, for the Respondent

HEARD: September 26, 2012

D.A. Broad, J.

Background

[ 1 ] The applicant husband and the respondent wife were married in a Sharia law ceremony in December 2002 and separated on October 9, 2009. By order dated March 21, 2012 I made a declaration that the parties were married for the purposes of the Family Law Act , R.S.O. 1990, c. F.3.

[ 2 ] The applicant claims equalization of net family properties, a declaration that his support obligation toward the respondent has been fully satisfied, an order for the return of a 2003 CRV Honda vehicle and a declaration that the parties are no longer married.

[ 3 ] The respondent claims spousal support, equalization of net family properties and a declaration that she is the owner of the 2003 CRV Honda vehicle.

[ 4 ] By order dated March 8, 2010 in the Ontario Court of Justice the applicant was ordered to pay interim spousal support in the amount of $817 per month. By order of Justice Taylor of this court dated December 21, 2011 the applicant was ordered to deliver possession of the 2003 CRV Honda to the respondent.

Spousal Support

[ 5 ] The applicant argues that, although the respondent is not working and is drawing partial WSIB benefits, she is capable of working, at least on a part-time basis, and income should be imputed to her in the sum of $410 per week to reflect the position taken by WSIB, in reducing her benefit, that she is capable of earning that amount of income. He also argues that he should receive credit against his ongoing support obligations in an amount equivalent to 3 1/2 years of support payments to reflect the fact that he was paying all expenses of the household during the last 3 1/2 years of the relationship.

[ 6 ] The respondent argues that, pursuant to the Spousal Support Advisory Guidelines, the range of monthly spousal support to her, based upon the relative incomes of the parties in the year of separation, should be $645-$859, or $628-$837 based on their relative incomes in 2011. The applicant’s income was $79,011 in 2009 and was $76,560 in 2011. The respondent’s income was $5,348 in 2009 and $4,808 in 2011. Based upon the length of cohabitation the guidelines would indicate a duration for the applicant’s spousal support obligation of 3.5 to 7 years from the date of separation. The respondent argues that there should be no imputation of income to her on the basis that she continues to be physically unable to work and that there is no evidence that she has not been working in order to increase or maintain her claim for support. The respondent submits that a review of spousal support should be ordered for September 2013, being approximately 4 years following the date of separation.

[ 7 ] The respondent received a grade 12 education in Somalia, and prior to the marriage was employed as a packer in a packaging plant and continued to be employed in that capacity after the marriage. In 2004 she sustained a fall in the workplace, injuring her shoulder, knee and foot. Initially the respondent received WSIB benefits of $700 biweekly. For a two year period she was cut off WSIB benefits. At some stage she received a lump sum payment from WSIB of $48,000 from which she transferred $23,000 to the applicant. The respondent was apparently cut off from the WSIB benefits because she discontinued attending retraining classes. She stated that this was on her doctor’s advice. She was eventually reinstated by WSIB and currently receives benefit payments of $900.92 per month.

[ 8 ] The respondent testified that she cannot work due to her injury, is on two medications and is unable to perform housework. She stated that she has seen a doctor about surgery and was advised that if she underwent surgery she would become handicapped. The physician advised her that she might get better over time. If her health does not improve, her intentions are to take training in interior decorating at a community college.

[ 9 ] The argument of the applicant that he should receive credit against his ongoing support obligation by reason of his being the sole contributor to the household expenses in the latter years of the relationship can be readily dealt with. Section 30 of the Family Law Act provides that "every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so." The purposes of an order for support of a spouse are listed in section 33(8) of the Family Law Act . These include recognition of the recipient spouse's contribution to the relationship and the economic consequences of the relationship for that spouse, as well as to make fair provision to assist that spouse to become able to contribute to his or her own support. The concept that a payor spouse should be credited against his or her support obligation for unequal contributions to household expenses during the relationship is foreign to the scheme of the Family Law Act .

[ 10 ] As discussed in section 13.2 of the Spousal Support Advisory Guidelines (SSAG), imputing income provides a ready means of assessing and encouraging self-sufficiency. However, as stated in section 13 of SSAG, the court is to take a realistic view of self-sufficiency and should not underestimate the effects of post-marital disadvantage nor overestimate the labor market prospects of separated and divorced spouses.

[ 11 ] The court is hampered here by the lack of medical evidence respecting the respondent's condition and its effect on her employment prospects now and into the future. On the other hand, the only evidence before the court respecting this issue, apart from correspondence from WSIB, is that of the respondent herself, to the effect that her physical condition currently prevents her from working. The applicant points to a letter from WSIB dated June 3, 2010, which assessed the respondents earning capacity to $10.25 per hour, working 40 hours per week and adjusted her partial loss of earnings benefits to $90.69 per week to reflect that change.

[ 12 ] I am not satisfied that the position taken by WSIB should be considered to be determinative on the issue of self-sufficiency for the respondent. It is evident that there was some change in the respondent's WSIB status subsequent to the June 2010 letter, as reflected in the reinstatement of her benefit to $900.92 per month. Moreover, there was no evidence led respecting the factors and considerations which led to the WSIB determination, which may very well not be applicable to, nor relevant to, the question of self-sufficiency for the purposes of determining spousal support.

[ 13 ] In my view, a support order in favour of the respondent of $650 per month, being towards the lower end of the SSAG range, to December, 2013, being some 4 years and 3 months following the date of separation, would provide sufficient time to her to reach self-sufficiency and would be in keeping with the quantum and duration ranges set forth in the Spousal Support Advisory Guidelines.

Equalization of Net Family Properties

[ 14 ] It appears from the evidence that the applicant's assets at the date of marriage were $14,703.03, comprised of a Honda Accord vehicle, two registered retirement savings plans and an educational savings plan. With the exception of the Honda CRV vehicle, the parties are in agreement with respect to the applicant's assets on valuation day, totaling $16,130.46.

[ 15 ] The respondent claims that she had a savings and a chequing account totaling $15,000 on the date of marriage. No documentation was submitted in evidence to support this claim and it was acknowledged by the respondent that the amount was an approximation. I am satisfied that the respondent did have some savings on the date of the marriage, however I would apply a discount of 25% to account for the unreliable evidence respecting the amount of savings on the date of marriage, resulting in a figure of $12,750.00 for this item.

[ 16 ] The respondent was left with the household furnishings on the date of separation. The applicant valued the furnishings at $10,000. No evidence was led with respect to their value and there was very little evidence led as to what the furnishings consisted of. I am left to do the best I can in applying a value to the furnishings in an almost complete absence of evidence. In these circumstances I would apply a discount of 30% to the estimate provided by the applicant, resulting in a value of $7000 for the household furnishings.

[ 17 ] The respondent testified that on the date of separation she was indebted to her father in the sum of $5,000, however, she produced no documentation in support of this claim. In the absence of any independent evidence supporting the existence of this loan I am not prepared to allow it for the purpose of calculating the respondent’s net family property. This is not to say that the respondent’s evidence is to be disbelieved or was calculated to mislead the Court, but rather simply to recognize that the respondent bears the onus of proving the existence of the debt on a balance of probabilities; an onus which she has not discharged on the evidence led.

[ 18 ] The parties agree that the CRV Honda vehicle was worth $3,000 on the date of separation, however they disagree with respect to its ownership. The vehicle is registered in the applicant’s name, however the Vehicle Purchase Agreement dated June 17, 2003 confirms that the vehicle was purchased by the applicant and the respondent jointly. I am satisfied that the ownership registration with the Ministry of Transportation is not, by itself, determinative of ownership, and in the absence of any contrary evidence, the purchase agreement would indicate that the vehicle remained jointly owned from the date of acquisition. A value of $1,500 in respect of the CRV Honda vehicle should therefore be attributed to each party on the date of separation.

[ 19 ] On his Net Family Property Statement the applicant seeks to attribute $1,000 per month to the respondent for the years 2006, 2007, 2008 and 2009, totaling $40,000 "for her share on household expenses paid by me." This appears to be another attempt by the applicant to seek credit for what he maintains was a disproportionate contribution to household expenses during the relationship. There is no support for this claim. Moreover, I accept the evidence of the respondent that she does not retain a significant balance from the lump sum payment received from WSIB, those funds having been utilized during the relationship for ongoing household expenses.

[ 20 ] The following is the calculation of the respective net family properties of the parties based upon the foregoing:

Applicant

Respondent

Date of Marriage

$14,703.03

$12,750.00.

Date of Separation

$17,630.46

$8,500.00

Debts V-Day

$0.00

$0.00

Total Net Family Property

$2,927.43

$0.00

[ 21 ] The applicant states that he has incurred expenses relating to the CRV Honda vehicle while it was in the possession of the respondent, consisting of loan payments, insurance premiums, maintenance, and parking tickets. In my view, these payments, with the exception of the parking tickets totaling $211, are associated with the applicant's position as a co-owner of the vehicle, and do not relate to any support or equalization obligations under the Family Law Act . There does not appear to have been any oral or written agreement between the parties respecting the division of responsibility for expenses associated with the vehicle. No contractual claim has been advanced by the applicant for reimbursement of any part of these expenses, nor has he advanced any claim on an unjust enrichment or other basis for contribution by the respondent towards those expenses, which the applicant appears to have voluntarily assumed. In fairness there is no reason for the applicant to have assumed the obligation to pay the respondent’s parking infractions. It is therefore appropriate to give credit to the applicant in the sum of $211 against his equalization obligation.

[ 22 ] It is noted that the applicant deliberately removed the license plates from the vehicle following the Order of Justice Taylor that the respondent be provided with possession of it, thereby preventing the respondent from having the effective use of it for transportation. This action by the applicant was in direct violation of the purpose and effect of Justice Taylor's Order. The respondent testified that she incurred expenses for alternate transportation following this unilateral action by the applicant in the sum of $1,500. The applicant is to provide to compensation to the respondent in this amount.

[ 23 ] The following is a summary of the amount which the applicant should be required to pay to the respondent, in addition to the spousal support payments referred to above:

Equalization of net family properties

$1,463.72

Credit amounts paid for parking tickets of the respondent

($211.00)

Transportation costs of the respondent following removal of license plates on CRV Honda

$1,500.00

Total

$2,752.72

[ 24 ] The above amount shall be satisfied, to the extent of $1,500.00, by the transfer of all of the applicant’s interest in the CRV Honda vehicle, free and clear of all encumbrances, together with transfer of the ownership registration to the respondent. The balance in the sum of $1,252.72 shall be paid in cash or by certified cheque.

Declaration that the Parties are No Longer Married

[ 25 ] The applicant has asked for a declaration that the parties are no longer married. The respondent does not oppose this. The Order dated March 21, 2012 declared that the parties were married for the purposes of the Family Law Act . However, as the marriage was not registered under the Marriage Act , R.S.O. 1990, c. M.2 , no claim for divorce was made by either party.

[ 26 ] Neither party has provided me with any authority respecting my jurisdiction to make a declaration that they are no longer married. However, having made a declaration that the parties were married for the purposes of the Family Law Act , and the parties’ rights and obligations under the Family Law Act having been finally adjudicated and determined, it is appropriate to make a declaration that the parties are no longer married for the purposes of that Act.

[ 27 ] It is therefore ordered as follows:

(a) the applicant shall pay to the respondent spousal support in the sum of $650.00 per month commencing on the 1 st day of October and continuing to the 1 st day of December, 2013. Any overpayment of spousal support for the months of October and November, 2012 pursuant to the existing order for interim support referred to above, shall be credited against the cash payment referred to in paragraph (b) below ;

(b) the applicant shall pay to the respondent the sum of $2,752.72, to be satisfied by transfer of all of his interest in the CRV Honda vehicle and by payment of the sum of $1,252.72 in cash or by certified cheque; and

(c) it is hereby declared that the applicant and the respondent are no longer married for the purposes of the Family Law Act , R.S.O. 1990, c. F.3.

[ 28 ] The parties may make brief submissions in respect of costs, not exceeding three double-spaced pages, exclusive of a costs outline and any offers to settle; the respondent by November 16, 2012, and the applicant by November 30, 2012.

BROAD, J.

Released: November 1, 2012

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N:

Abdirashid Mohamed Isse Applicant - and - Linda A. Said Respondent

REASONS FOR JUDGMENT Broad J.

Released: November 1, 2012