SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 07-6859M
DATE: 20121105

RE: SUE ELLEN FREER

Applicant

v.

GLEN FREER

Respondent

BEFORE: CONLAN J.

COUNSEL:
Baljit Grewal, for the Applicant
W. Joanne Horton, for the Respondent

REASONS FOR JUDGMENT

Introduction

[ 1 ] Is the Applicant, Sue Ellen Freer (“Ms. Everatt”), entitled to spousal support? If so, commencing when, how much and for how long? Those are the questions that this Court must decide.

[ 2 ] This was a relatively short Trial. The evidence was heard over two days in Owen Sound – October 30 and October 31, 2012. Oral closing submissions by counsel were delivered on November 2, 2012. There were numerous Exhibits filed. The only two witnesses were the parties.

The Evidence

Ms. Everatt

[ 3 ] Ms. Everatt is now 48 years old, born June 11, 1964. The parties were married and started living together on June 19, 1982. They were in a relationship together for a few years before marriage but did not cohabit. They have three children, now all independent. They separated in May 2006 when Ms. Everatt moved out of the matrimonial home in Lion’s Head, Ontario.

[ 4 ] Ms. Everatt works currently at the Rona store in Wingham, Ontario. She works part-time, three to four days per week, 25-34 hours per week. She earns $12.00 per hour. Her gross pay is between $300.00 and $408.00 per week. She expects to be laid off from her employment with Rona between December 2012 and May 2013, as she was last year. She collects Employment Insurance benefits when laid off - $425.00 to $450.00 bi-weekly. She testified that she has about $1,000.00 in her bank account as of October 30, 2012. Her only current debt is about $200.00 on a credit card.

[ 5 ] Exhibit 6 shows Ms. Everatt’s gross income for the 2011 tax year as $16,982.00.

[ 6 ] Ms. Everatt lives currently in Wingham (since December 2009). She lives with Edward Schill in a home that he owns. They have been in a relationship together for four years (since December 2008) and have lived together for three years.

[ 7 ] After separation, Ms. Everatt made payments on a joint credit card, Hydro for the matrimonial home, the mortgage and house insurance. She wants the Respondent, Glen Freer (“Mr. Freer”), to reimburse her for half of the total payments that she made. The details of the payments and the amounts need not be outlined as that claim by Ms. Everatt is denied for the reasons stated below under the heading “Analysis”.

[ 8 ] Ms. Everatt admits that Mr. Freer made payments on the mortgage and the joint line of credit after separation, but she does not know how much he paid.

[ 9 ] During the marriage, according to Ms. Everatt, she was the primary caregiver for the three children, although Mr. Freer shared in some of the child care responsibilities. Mr. Freer worked outside of the home on a consistent basis. She helped with the family grass-cutting business but did not get paid, although the family shared the revenues from that business.

[ 10 ] Ms. Everatt testified that she is better financially now than before separation from Mr. Freer because of her current partner, Mr. Schill. She described her financial health as bad before separation – to worse for a while after separation – to best since living with Mr. Schill. She lives with Mr. Schill rent-free. He pays the mortgage and the general household expenses including the utilities. She said that she could not survive financially on her own. She said that Mr. Schill earns more than $40,000.00 per year (how much more she does not know).

[ 11 ] After separation, from May 2006 until March 2008, Ms. Everatt lived with friends. From March 2008 until October 2008, she lived with her parents. From October 2008 until December 2009, she lived on her own in Lion’s Head. That is the only period of time that she has paid rent since the date of separation. From December 2009 until now, she has lived with Mr. Schill in Wingham.

[ 12 ] Ms. Everatt’s resume was marked Exhibit 1. Ms. Everatt has worked for many years at least seasonally, plus babysitting since the child Cherissa (born January 3, 1991) has been in school full-time. She has had in the past full-time jobs at Celtic Sports and Arts Camp and Banner Connection. She has her high school diploma and has taken some courses since. She has a wide variety of job skills and a varied work history. She described herself as “a jack of all trades; master of none”.

[ 13 ] Ms. Everatt testified that she does not look for other work to supplement the hours that she works at Rona in Wingham. And she does not look for work when laid off from Rona (December to May), although she said that she would do so this off-season starting December 2012. The same was true when she worked seasonally at Timbr Mart in Miller Lake – she did not look for other work on or off-season. Although she has cared for her aging parents who have some serious health issues, she acknowledged that the said responsibility has not prevented her from working more hours. She could and would work full-time at Rona if a job was available.

Mr. Freer

[ 14 ] Mr. Freer is now 53 years old. He lives with a lady in Durham, Ontario.

[ 15 ] According to Mr. Freer, the household responsibilities and child care during the marriage were shared, although a little more so by Ms. Everatt.

[ 16 ] After separation in May 2006, he alone paid the mortgage and house insurance until the end of 2007 or early 2008. Eventually, it was too much for him to handle. He declared bankruptcy in October 2008. The matrimonial home was signed over to the Trustee, along with all other assets. He was discharged from bankruptcy in 2009. The discharge extinguished all of his debts, including some that were joint with Ms. Everatt, except child support. Child support is not being paid currently as all of the children are now independent.

[ 17 ] Mr. Freer testified that he paid all of the child support owing and made one payment of $200.00 to Ms. Everatt since separation. He could not pay her anything else because he was ordered to have no contact with her.

[ 18 ] Mr. Freer has a grade 10 formal education. He works now for Shouldice Designer Stone in Walkerton, Ontario (since April 15, 2012), in the shipping and receiving department. He was hired initially through a temporary employment agency but now works for Shouldice. He was hired at $14.00 per hour but now earns $15.00 per hour, 40 hours per week. That will become 37.5 hours per week starting January 2013.

[ 19 ] Mr. Freer worked for 17 years at Hellyer’s Tree Service. He had to leave that employment after injuring his back on the job in late October 2011. His attempt to receive worker’s compensation benefits was unsuccessful through no fault of his. In mid-November 2011, he started to receive sick benefits through Employment Insurance - $318.00 every two weeks. That lasted about six weeks. He then received regular Employment Insurance benefits in the amount of $550.00 bi-weekly. He tried to return to work at Hellyer’s in the spring of 2012 but could not physically do the jobs required. Mr. Freer disagreed with the suggestion in cross-examination that he was actually laid off from Hellyer’s rather than having left for health reasons. He also disagreed with the assertion that he took a lower paying job at Shouldice in Walkerton because of his relationship with his current partner and his new residence in Durham, which is closer to Walkerton than to Hellyer’s place of business. He said that he had to take the Shouldice job because he could not return to Hellyer’s due to the back injury.

[ 20 ] With Hellyer’s, Mr. Freer earned good money - $21.50 per hour, 40-42 hours per week. It was seasonal from May to October. In the winters, he did snow removal for Hellyer’s for 15 years at $17.00 per hour. Prior to separation, he also ran his own lawn care and landscaping business.

[ 21 ] When Mr. Freer was 18 years old or so, he suffered a serious injury to his right hand. He receives and will continue to receive until age 65 non-taxable worker’s compensation benefits for that injury.

[ 22 ] Exhibit 9 shows a gross income for Mr. Freer for the 2011 tax year of $43,388.00. At $15.00 per hour, 80 hours bi-weekly, Mr. Freer’s gross pay at Shouldice is $1,200.00 every two weeks. His gross pay at Shouldice for the 6.5 months between April 15 and October 26, 2012 was $11,487.37.

[ 23 ] Mr. Freer went through his monthly expenses in detail during his direct examination. He barely meets his current expenses; he has very little money left over. While he was testifying, the Court calculated that Mr. Freer’s current monthly expenses are about equal to his monthly net income from Shouldice – approximately $2100.00 to $2200.00, although there is one unnecessary expense for alcohol and tobacco ($280.00 per month).

The Positions of the Parties

[ 24 ] Both parties filed Divorcemate spousal support calculations.

Ms. Everatt

[ 25 ] Ms. Everatt seeks the following: $292.00 per month in spousal support for the year 2007 (high range); $195.00 per month in spousal support for the 2008 year (high range); between $475.00 and $637.00 per month (mid to high range) in spousal support for the year 2009; $942.00 per month in spousal support for the 2010 year (low range); $977.00 per month spousal support for the year 2011 (low range); and $500.00 per month spousal support going forward, indefinite.

[ 26 ] Further, Ms. Everatt seeks reimbursement of $3,000.00 from Mr. Freer for half of the approximate $6,000.00 that she paid after separation on a joint credit card, Hydro for the matrimonial home, the mortgage and house insurance, but that claim is being advanced only if the Court does not award spousal support going back to 2007.

[ 27 ] Ms. Everatt states that she is entitled to spousal support on both compensatory and need bases. Her counsel asked the Court to consider the “means, needs and circumstances”. Ms. Everatt states that the Court should not consider Mr. Schill’s income in determining entitlement or quantum of spousal support.

[ 28 ] Ms. Everatt argues that Mr. Freer is intentionally underemployed in that he could have returned to work at Hellyer’s.

Mr. Freer

[ 29 ] Mr. Freer states that Ms. Everatt’s claim for the $3,000.00 regarding expenses ought to be denied as the Application does not contain that request and the Court’s Endorsement prior to trial makes it clear that the only issue for trial was spousal support. The Court itself had pointed that out to both counsel during the trial.

[ 30 ] Mr. Freer asks the Court to consider the relatively young ages of the parties at the time of separation (42 years for Ms. Everatt and 47 years for Mr. Freer); that this was a 23, almost 24, year marriage; that his ability to pay spousal support currently is limited as he has only about $200.00 per month left over after paying his expenses; that Ms. Everatt ought to have secured full-time employment by now (certainly since 2009 when all of the children were living independently); that Ms. Everatt is better off financially now than before the separation; that the Court should not ignore Mr. Schill’s income; that the separation was bad for both parties as is evident from Mr. Freer’s bankruptcy; and that Ms. Everatt has about $400.00 surplus every month currently given her income, including E.I., and her expenses.

[ 31 ] Mr. Freer submits the following: nil or $35.00 per month spousal support for the year 2007; nil or $8.00 per month in spousal support for the year 2008; nil spousal support for the year 2009 until the bankruptcy discharge date in October, and for November and December 2009 $188.00 per month (based on attributed extra income to Ms. Everatt) or $443.00 per month spousal support (based on actual incomes); $31.00 per month spousal support for the first eleven months of 2010 while Mr. Freer was paying child support, and $493.00 per month spousal support for December 2010 after child support ceased (based on attributed extra income to Ms. Everatt); $250.00 or $625.00 per month spousal support for the year 2011 (depending on whether the Court attributes extra income to Ms. Everatt based on working 40 hours per week); $100.00 or $283.00 per month spousal support for the 2012 year (depending on the same issue as for 2011); and one more year of spousal support going forward, at a nominal rate.

The General Law of Spousal Support

[ 32 ] The current law of spousal support in Canada offers a fairly expansive basis for entitlement. Generally, if there is a significant income disparity between the parties after separation, there will be an entitlement to some spousal support.

[ 33 ] The decision of the Supreme Court of Canada in Moge v. Moge , 1992 25 (SCC) , [1992] 3 S.C.R. 813 , created a broad basis for compensatory claims for spousal support based on economic disadvantage from the marriage or the conferral of an economic advantage on the other spouse.

[ 34 ] In Bracklow v. Bracklow , 1999 715 (SCC) , [1999] 1 S.C.R. 420 , the need basis for spousal support was outlined by the Supreme Court of Canada. A spouse may advance a non-compensatory claim based on need or hardship created by the loss of the marital standard of living.

[ 35 ] In determining the length of the relationship for spousal support purposes, the Court should look to the start of cohabitation, even before marriage, to the date of separation. The simplest approach is to round up or down to the nearest full year.

[ 36 ] “Indefinite” spousal support does not mean permanent spousal support. It simply means that the order is without a time limit at the time that it is made. Indefinite support orders remain open to variation as the circumstances of the parties change, and the orders may have review conditions attached to them. In other words, indefinite spousal support means support that is subject to the normal process of variation and review.

[ 37 ] Indefinite spousal support orders are more common in long marriages (twenty years or more).

[ 38 ] A strong compensatory claim generally favours a spousal support award at the higher end of the ranges regarding both duration and quantum. Similarly, a strong compelling need on behalf of the recipient will generally result in a spousal support award that is longer and higher in amount. There are other factors that affect duration and quantum, and some of these considerations are specified in the Divorce Act : age, number, needs and standard of living of children; needs and ability to pay of the payor; work incentives for the payor; property division and debts; and self-sufficiency incentives.

[ 39 ] The remarriage or re-partnering of the recipient spouse does affect spousal support. The submissions of the Applicant that the Court ought to ignore the income of Mr. Schill are wrong in law. Re-partnering does not automatically mean that spousal support is terminated, but it often means that the amount will be reduced, especially if the entitlement is based on need rather than compensation.

Analysis

[ 40 ] The Divorcemate spousal support calculations provided by Ms. Everatt are inaccurate as at least two basic inputs are wrong. The length of cohabitation was not 25 years – it was 24 years (rounding up slightly). And Ms. Everatt’s age was 42 years (again rounding up slightly), not 41, at the time of separation.

[ 41 ] Thus, apart from deciding what the respective incomes were, I generally prefer the calculations provided by Mr. Freer. The only exception is where the amount as per the Respondent’s calculations would be higher than what was asked for in the closing submissions of Ms. Everatt; in that case, the figure proposed by the Applicant will be resorted to (year 2009).

[ 42 ] I reject the argument that Mr. Freer is intentionally underemployed. I believe him that he was seriously injured and could not return to work at Hellyer’s. I believe him that he did the best he could in getting the job at Shouldice in Walkerton. Mr. Freer strikes me as a hard-working, industrious man. If he could have returned to work at Hellyer’s for more money and at a job that he said he loved, he would have.

[ 43 ] Likewise, I am not attributing any extra income to Ms. Everatt between the date of separation and now. I have no reason to doubt her testimony that she would work more hours at Rona in Wingham if the job was available. I have no reason to doubt her evidence that she has not been offered work at one of the other Rona stores owned by the same persons who run the business in Wingham. There is simply no admissible evidence to conclude that Ms. Everatt’s part-time work since May 2006, which is consistent with what she did for the most part before separation, amounts to intentional underemployment.

[ 44 ] Credibility of the parties is generally not an issue in this case because there are very few if any material differences in their evidence on the basic facts. But I would be remiss if I did not deal with the fact that, in cross-examination, Mr. Freer acknowledged that he did not disclose in his July 28, 2010 Financial Statement that he was living with Nancy McCartney. He stated that the said portion of the Statement was not pointed out to him and, had it been, he would have disclosed that he was living with her. I accept that explanation. I refuse to draw the adverse inference against Mr. Freer that was urged by counsel for the Applicant. I find that Mr. Freer was an honest and credible witness.

[ 45 ] Both parties did the best they could in their testimony. Mr. Freer was far more succinct, pointed and responsive than Ms. Everatt, however, I do not find that the Applicant was dishonest or generally incredible.

Spousal Support

[ 46 ] I find that Ms. Everatt is entitled to spousal support based on need. There is no entitlement based on compensation. There is no evidence that Ms. Everatt suffered economic disadvantage from the marriage or conferred an economic benefit on Mr. Freer. But there is evidence that Ms. Everatt sustained financial hardship after the marriage and, thus, had a need for spousal support based on a significant disparity in the respective incomes of the parties. Ms. Everatt has established on balance her entitlement to spousal support.

[ 47 ] For the year 2007, this Court orders that Mr. Freer shall pay spousal support to Ms. Everatt in the amount of $168.00 per month. That is the mid-range amount as per the calculations supplied by the Respondent. That amount is not being topped-up notwithstanding that the Respondent’s calculations assume a 23 rather than 24-year cohabitation. The reason is that Ms. Everatt was living with friends rent-free during the year 2007. The award recognizes that the income of Mr. Freer that year was more than double that of Ms. Everatt. I reject Mr. Freer’s argument that the amount should be nil or nominal because, in part, he was paying off joint debts during that period of time. That is true, but that is taken into account in not awarding the high end of the range which might ordinarily apply given the length of this cohabitation and the wide disparity of incomes after separation.

[ 48 ] For the year 2008, this Court orders that Mr. Freer shall pay spousal support to Ms. Everatt in the amount of $149.00 per month. That is the mid-range amount as per the calculations supplied by the Respondent. That amount is not being topped-up notwithstanding that the Respondent’s calculations assume a 23 rather than 24-year cohabitation. The reason is that Ms. Everatt was living with friends and then her parents rent-free during most of the year 2008. The award recognizes that the income of Mr. Freer that year was more than double that of Ms. Everatt. Again, I reject for the same reason as stated above Mr. Freer’s argument that the amount should be nil or nominal because, in part, he was paying off joint debts during that period of time.

[ 49 ] For the year 2009, this Court orders that Mr. Freer shall pay spousal support to Ms. Everatt in the amount of $475.00 per month. That is the mid-range amount as per the calculations supplied by the Applicant. The award recognizes that the income of Mr. Freer that year was well more than double that of Ms. Everatt. I reject the argument by Mr. Freer that the amount should be nil up to the bankruptcy discharge date in October 2009 for the same reason as stated above.

[ 50 ] For the year 2010, this Court cannot specify the amount as Mr. Freer did not supply a calculation based on Ms. Everatt’s actual income (rather, I have two calculations from Mr. Freer both based on an attributed income for Ms. Everatt of $23,400.00, which I do not accept). Both counsel shall do the calculation based on the Applicant’s actual income for that year and all other inputs as per the Respondent’s calculations. The amount that is ordered, both with and without child support, is the low range figure. This Court orders that, between January and November, inclusive, Mr. Freer shall pay spousal support to Ms. Everatt in the amount calculated by counsel. That is while Mr. Freer was still paying child support. The award recognizes that Ms. Everatt’s need was reduced in 2010 as she was living with Mr. Schill. For December 2010, this Court orders that Mr. Freer shall pay spousal support to Ms. Everatt in the amount calculated by counsel. That is after Mr. Freer’s child support payments stopped. The figures are not being topped-up with or without child support because, although the Respondent’s filings assume a 23 rather than 24-year cohabitation, Ms. Everatt was living with Mr. Schill rent-free throughout 2010.

[ 51 ] I may be spoken to by counsel if they cannot agree on the calculations for 2010.

[ 52 ] For the year 2011, this Court orders that Mr. Freer shall pay spousal support to Ms. Everatt in the amount of $854.00 per month. That is the low range amount as per the calculations supplied by the Respondent, without attributing any extra income to the Applicant. The award recognizes that Ms. Everatt’s need was reduced in 2011 as she was living with Mr. Schill. The figure is not being topped-up because, although the Respondent’s filings assume a 23 rather than 24-year cohabitation, Ms. Everatt was living with Mr. Schill rent-free throughout 2011.

[ 53 ] For the year 2012, this Court cannot specify the amount as Mr. Freer did not supply a calculation based on Ms. Everatt’s actual income (rather, I have two calculations from Mr. Freer both based on attributed incomes for Ms. Everatt of $23,400.00 and $24,960.00 , which I do not accept). Both counsel shall do the calculation based on the Applicant’s actual income for that year and all other inputs as per the Respondent’s calculations. The amount that is ordered is the low range figure. This Court orders that Mr. Freer shall pay spousal support to Ms. Everatt in the amount calculated by counsel. The award recognizes that Ms. Everatt’s need was reduced in 2012 as she was living with Mr. Schill. The figure is not being topped-up because, although the Respondent’s filings assume a 23 rather than 24-year cohabitation, Ms. Everatt was living with Mr. Schill rent-free throughout 2012.

[ 54 ] I may be spoken to by counsel if they cannot agree on the calculation for 2012.

[ 55 ] Going forward, I agree with Ms. Everatt that spousal support should be indefinite. As I said before, that does not mean permanent. I suspect that Mr. Freer will seek to vary the order based on a change of circumstances within the next few years.

[ 56 ] But I also agree with Mr. Freer that, starting in 2013, it is time to attribute a greater income to the Applicant. In May 2013, it will be seven years since the separation. Being able-bodied and with her skills and job history, there is no reason why the Applicant could not be earning more than $17,000.00 or so. For purposes of spousal support starting January 2013, I fix Ms. Everatt’s income at $23,400.00 (37.5 hours per week at her current wage of $12.00 per hour). This is not inconsistent with Ms. Everatt’s own testimony which was that she intends to look for other work after being laid-off from Rona in December 2012.

[ 57 ] Commencing January 2013, this Court orders that Mr. Freer shall pay spousal support to Ms. Everatt in the amount of $300.00 per month for an indefinite duration. That is $28.00 below the low range amount as per the calculations supplied by the Respondent with an income for the Applicant of $23,400.00. The award recognizes that it has been 6.5 years since the separation; Ms. Everatt intends to look for other work to supplement her income while laid-off from Rona; Mr. Freer has limited ability to pay; and Ms. Everatt’s need is reduced as she is living rent-free with Mr. Schill.

[ 58 ] A support deduction Order shall issue.

[ 59 ] Counsel shall present to the Court a Final Order in accordance with these Reasons.

Other Claim by Ms. Everatt

[ 60 ] Ms. Everatt’s claim for reimbursement of the $3,000.00 is denied, regardless of the fact that it was not being pursued if the Court ordered spousal support retroactive to 2007, which has been done. Parties ought to generally be held strictly to their pleadings. This is not trial by ambush. That claim is not contained in the Application. Besides, the Court’s Endorsement well prior to the trial makes it clear that the only issue for trial was spousal support.

[ 61 ] If the parties cannot settle costs, they shall contact the Trial Coordinator to obtain a date and time for brief oral submissions at Court, limited to thirty minutes total. Filings can be made at that time.

[ 62 ] Thank you to counsel. I wish the parties success in the future.

Conlan J.

DATE: November 5, 2012

COURT FILE NO.: 07-6859M

DATE: 20121105

SUPERIOR COURT OF JUSTICE - ONTARIO RE: SUE ELLEN FREER Applicant v. GLEN FREER Respondent BEFORE: CONLAN J. COUNSEL: Baljit Grewal, for the Applicant W. Joanne Horton REASONS FOR JUDGMENT Conlan J.

DATE: November 5, 2012