ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-10-9949
DATE: 20121116

BETWEEN:

Susan Mary Friedl Applicant – and – Walter Louis Max Friedl Respondent

Richard M. Gordner, for the Applicant
Ian R. Fisher, for the Respondent

HEARD: May 14, 15 and 16, 2012

JUDGMENT

nolan j.:

ISSUES

[ 1 ] Prior to trial, the parties entered into Minutes of Settlement regarding the property issues. A joint non-registered account with Manulife had been omitted from the Minutes. On consent, the account is to be divided equally between the parties. The central issue left for trial was whether Mrs. Friedl is entitled to continue receiving spousal support, whether she is entitled to compensatory or non-compensatory spousal support; if so, what is the quantum of that support and its duration. Whether a form of security should be ordered to secure any spousal support ordered, arrears of child support and Dr. Friedl’s income for spousal support purposes were subsidiary issues, the latter issue being resolved during trial. For reasons that follow, I find that Mrs. Friedl is entitled to non-compensatory spousal support for a fixed period of time and that Dr. Friedl owes arrears of child support.

BACKGROUND

[ 2 ] Mrs. Friedl is 50 years old and Dr. Friedl is 53. They were married on June 15, 1985. She had just graduated with a Bachelor of Science in Nursing and he had already commenced his practice of dentistry in Windsor. They have two children, Warren, age 23, and Zachary, age 21. Warren is in his second year at Wayne State University in the Faculty of Dentistry and lives on his own in Royal Oak, Michigan. Zachary is a full-time student at the University of Windsor in the chemistry program and will graduate in 2013 with a Bachelor of Science. He wants to apply to dental school.

[ 3 ] The Friedls separated in May 2007 and reconciled in January 2009. They sold both the matrimonial home where Dr. Friedl had been living and the town house which Mrs. Friedl bought after separation. They purchased their “dream home” on the water at a cost of over $1 million dollars. They separated for a second and final time on June 1, 2010. Mrs. Friedl continued to live in the matrimonial home until August 2010. She then obtained her own residence and from September 2010 until September 2011, Warren lived three weeks with each parent. Zachary lives with Dr. Friedl during the week and on the weekends he resides with Mrs. Friedl.

[ 4 ] When the Friedls were first married, Dr. Friedl was an associate in a dental practice in Windsor. In 1990 he started up his own practice which he continues today. Mrs. Friedl was a registered nurse at the time of marriage and worked for five years with the Victorian Order of Nurses in Windsor. She decided after being a nurse for five years that she wanted to become a teacher and returned to school to do so. Although some of her employment has been part-time, Mrs. Friedl has generally worked full-time during the marriage except for the maternity leaves of four to six months after each of their sons were born. She is currently the Coordinator of the Ontario Youth Apprenticeship Program for the Windsor-Essex Catholic District School Board, a position she has held since approximately 1998 or 1999.

[ 5 ] Mrs. Friedl commenced this application in August 2010 in which she sought a divorce, child and spousal support, an equalization payment, sale of the matrimonial home and related relief. In his answer, Dr. Friedl agreed there should be a divorce and a division of their net family property. He opposed any order for spousal support, child support, and sale of the matrimonial home.

[ 6 ] In November 2010, a case conference was held at which time a production order was granted on consent. A further case conference was scheduled for January 2011 and a settlement conference was scheduled for May 2011.

[ 7 ] On June 24, 2011, on the motion of Mrs. Friedl, Campbell J. granted a consent without prejudice order in which Dr. Friedl was ordered to pay interim spousal support in the amount of $3,000 per month, retroactive to September 1, 2010, there was no order for child support and Dr. Friedl was to pay Mrs. Friedl $75,000 as an advance payment on equalization by July 8, 2011.

[ 8 ] Both parties hired business valuators to value Dr. Friedl’s dental practice and determine his income for support purposes. Mr. Ronald St. Pierre of BDO Canada was retained by Mrs. Friedl and Mr. James Tracey was retained by Dr. Friedl. Only Mr. St. Pierre testified at the trial. To the credit of both of the experts, they worked cooperatively to the benefit of their individual clients and the court. The parties were able to resolve their property issues based on the valuation of the dental practice as well as an appraisal of the matrimonial home and an actuarial evaluation of Mrs. Friedl’s pension. The two business valuators were able to agree on Dr. Friedl’s income with the only difference between them being the treatment of certain expenses paid by Dr. Friedl as business expenses and which Mrs. Friedl sought to have considered as a re-adjustment of income for the purposes of spousal support. During the trial, the experts and counsel were able to agree on Dr. Friedl’s income for support purposes which I will deal with later in this judgment.

EVIDENCE OF MRS. FRIEDL

[ 9 ] Mrs. Friedl testified that she grew up in Ingersoll on a farm. Her parents were from Holland and she was one of eight children, four brothers and three sisters. She went to a Catholic grade school in Ingersoll and then went to high school at Ingersoll High School where she completed grade 13. Mrs. Friedl spent some time during her testimony describing her successes in high school and tendered as exhibits newspaper articles setting out her high school achievements as well as submitting a portion of her high school yearbook which included an inscription from a teacher about how well he predicted she would do in the future.

[ 10 ] Mrs. Friedl obtained a scholarship to the University of Western Ontario where she obtained a Bachelor of Science in Nursing. She said that she had come from a traditional background and wanted that kind of life for herself. As a result, she decided that nursing would be a good career for her.

[ 11 ] She graduated from nursing in June 1985 at the top of her class and won the gold medal. One professor had told her that she should be in medical school. She thought about taking the medical school admissions exam but never did.

[ 12 ] Mrs. Friedl started dating Dr. Friedl in January or February 1984 and they were engaged by June 1984. They got married right after graduation in June 1985.

[ 13 ] Mrs. Friedl said that it had been her plan to work as a nurse at the University Hospital in London but rather came to Windsor with Dr. Friedl where he was already practising dentistry. She said “I was engaged-I was excited.”

[ 14 ] Presumably because there were no teaching hospitals in Windsor, she said that she had more limited nursing experiences available to her in Windsor. There was no evidence, however, that she ever applied for a traditional nursing job in any of the Windsor hospitals. She got a job with the Victorian Order of Nurses (VON) and worked with that organization for five years. She said that she preferred working as a nurse in that capacity rather than in a hospital because the hours are better, from 8:30 a.m. to 4:30 p.m., with no shift work. Dr. Friedl was practising in association with an established dental practice. He worked one 12-hour day during each week and was on call every third weekend.

[ 15 ] When their first son, Warren, was born on November 25, 1989, Mrs. Friedl took off approximately six months maternity leave. After her maternity leave was completed, Mrs. Friedl went back to work with the VON approximately half time. She said she wanted to keep up her nursing skills. Her sister-in-law, the wife of Dr. Friedl’s brother, babysat for Warren. In addition to working part-time, Mrs. Friedl said that she had household duties as well. She was the one who paid the household bills and took care of household management.

[ 16 ] Mrs. Friedl worked at the VON until August 1990. She had decided that she wanted to become a teacher. She said that she was attracted to this career because she would be off work when her children were off. As well, she found working with cancer patients to be emotionally draining.

[ 17 ] Mrs. Friedl enrolled in the education program at the University of Windsor which started in September 1990 and was approximately eight months in length. She was already pregnant with Zachary. She developed a condition at the end of her pregnancy which required her to take six weeks off in the spring of 1991. Zachary was born on March 3, 1991. Mrs. Friedl had to complete her practical teaching experience after he was born. She graduated on the honour roll, cum laude.

[ 18 ] After graduation, Mrs. Friedl obtained a part-time position with a sanitary products company working two and a half days per week providing education about puberty and feminine hygiene. She worked in this job from August or September 1991 until January 1993. She said her work hours were flexible and she could take time off when required, provided that she worked the required number of hours. She also had responsibilities looking after the house and the children. Her pay went into a joint account.

[ 19 ] Mrs. Friedl left that job in February 1993 with a glowing recommendation when she got a job at Assumption High School teaching science technology. She described that job as being made for her.

[ 20 ] Zachary was in private daycare. She worked full-time that year and then went to part-time in the fall of 1994 because she found it hard to work full-time and manage her responsibilities at home.

[ 21 ] Mrs. Friedl said that Warren suffered from a lot of infections and that she was required to take him to numerous doctor visits. She often had to take off work to do this but there was no evidence that she was ever docked pay for taking off this time. In addition to Warren’s medical issues, Zachary had some behavioural problems at the daycare.

[ 22 ] She worked part-time for two years and then in 1996 went back full-time to Assumption teaching science technology. By that time both children were attending school at St. Gregory. She said that she continued to be responsible for all family duties at home.

[ 23 ] In the fall of 1998, there was an opportunity for Assumption High School to participate in the Ontario Youth Apprenticeship Program. Mrs. Friedl wrote the proposal. The purpose of the program was to promote apprenticeships and co-op placements. Assumption High School was successful in being able to participate in the program and she became the coordinator. Mrs. Friedl had her own office, and was able to make appointments with employers in a way that was most convenient for her. Her work hours were flexible but she had a heavy workload.

[ 24 ] In 2000 she asked to work half-time. The children were in soccer, hockey and Kumon tutoring. She was permitted to work three days per week but found that she was putting in as many hours as she did before. After a year, she went back to work full-time and the Friedls got the assistance of a cleaning person to help with the housework.

[ 25 ] In 2002 Mrs. Friedl took the principal’s course. She said she thought that when the children were older she could assume the responsibility of a principal. After taking the course, however, she decided that the responsibilities of being a principal were quite demanding. As a result, she did not apply for any openings that came up at the Board.

[ 26 ] After separation in 2010, she put her name in the principal pool which is the process at her Board for becoming a principal. She was successful in being offered a vice-principal’s job in September 2010. She said that she did not accept the opportunity, however, because she was stressed about the separation. As well, the school board had changed the nature of a vice-principal’s job and the persons in those positions had to teach half-time. They were also required to leave the teacher’s union. She was concerned that, without the seniority protection she had in the union, she might have been declared redundant or placed into a teacher’s job and lose her coordinator’s salary.

[ 27 ] In addition to providing details about her educational background and career, Mrs. Friedl testified with respect to the home life she and Dr. Friedl enjoyed during their marriage. They first lived in LaSalle in a house that was worth about $80,000. They bought that house with a down payment of $25,000 which came from her savings. In addition, she said that she had received numerous gifts of money from her parents, all of which were used for family purposes.

[ 28 ] In 1990, Dr. and Mrs. Friedl sold that house for $150,000 and moved to 590 Dresden Street in St. Clair Beach. She said that because her work hours were shorter than Dr. Friedl’s, she prepared all the meals and did the shopping. From her perspective, he was left free to build his practice while she organized their home life.

[ 29 ] Warren was lactose intolerant as a baby and prone to throat infections. He finally had his tonsils out and she was responsible for making all of those arrangements. By that time Dr. Friedl had started his own practice so he had administrative responsibilities that he didn’t have as an associate.

[ 30 ] Dr. Friedl and Mrs. Friedl then moved to a house on Lefler Drive. Both boys were involved in soccer and hockey and both played on travel teams. She said that both she and Dr. Friedl were involved in those activities with the boys and often one parent would be going one way with one child and the other in a different direction with the other child. The boys were also involved in Kumon for math and reading twice a week and that it was her responsibility to ensure that the boys got there.

[ 31 ] In May 2007, she and Dr. Friedl separated because of “marital difficulties”. She moved into a town home. They got involved in counselling. During the separation, Dr. Friedl did not pay her any support but gave her $300,000 with which to buy a town home. They reconciled on January 31, 2009. When they reconciled, they sold the town house as well as their home on Lefler and bought a new house worth over $1 million dollars. The money from the sale of her town home all except for $20,000 went into the million dollar home along with the sale proceeds from the home on Lefler.

[ 32 ] With respect to her responsibilities with the boys, Mrs. Friedl said that she was responsible for dealing with the school and parent interviews. Dr. Friedl would attend when he could. She said that Zachary was a bright but mediocre student. When he was in grade six, it was thought that he might be ADHD. She arranged for him to be tested privately and was responsible for dealing with the school around setting up a special program for him. The testing showed Zachary to be a gifted student and as a result, the school cooperated in altering his program so that he could be more challenged at school. This special programming continued when he went to high school where his marks improved.

[ 33 ] Mrs. Friedl also testified about her responsibilities for organizing their social life. She said she would make all the social arrangements and made any reservations that were required. She said she tried to make social arrangements with people who would become patients of Dr. Friedl’s. She also made all their travel arrangements for vacation. She acknowledged, however, that she had no direct involvement with Dr. Friedl’s practice. She said that in 1990 her parents gave her and Dr. Friedl $50,000. They used this for the funds Dr. Friedl required to set up his own practice which he continues to operate today. Mrs. Friedl testified about assisting Dr. Friedl in setting up the practice by gathering decorating ideas and obtaining paint and carpet samples as well as art from auctions. She said she was also involved with payroll cheques and obtaining supplies for him. She acknowledged that she received $30,000 from the practice for doing this work. That amount was put in to their joint account for use by the family.

[ 34 ] With respect to lifestyle that they enjoyed just prior to the final separation, Mrs. Friedl described the home on Old Tecumseh Road. It has 100 foot frontage on Lake St. Clair and is 600 feet deep. The home is very large being 3700 square feet on the main floor and another 3000 feet on the lower level. The appraised value of the home is $1,140,000 as set out in the appraisal of the home which was filed on consent as Exhibit 4. In addition to the size of the home, Mrs. Friedl described the home gym that was put in the basement as well as the $35,000 boat purchased by Dr. Friedl.

[ 35 ] By contrast, she owns a town home on Aspen Avenue. It has a garage and is approximately 1503 square feet. She said she purchased it before it was finished so she was able to choose the layout and some of the finishes. Although it is located on a man-made lake called Aspen Lake, it has none of the luxuries of the former matrimonial home.

[ 36 ] Mrs. Friedl also described the vacations that she, Dr. Friedl and their sons would enjoy when they were together, at least once a year with the children and once a year on their own. She estimated that they would spend approximately $20,000 per year on vacations for all four of them. Since separation Mrs. Friedl said she has gone on a cruise in January 2012 that cost about $1,000 and another trip to Mexico in March 2012 which cost her approximately $1,600. She said that because of the change in her financial circumstances because of the separation, she has had to try harder to get good deals.

[ 37 ] Mrs. Friedl said that prior to separation, “money was not a big deal.” She was able to afford Botox and other cosmetic treatments. Now she has had to cut back on those services as well as facials. She now spends only approximately $300 per month on grooming whereas before separation she spent approximately $600 per month. She said that she has no savings to speak of and that she has had to dip into her line of credit and to borrow money from her sister to meet her expenses.

[ 38 ] Mrs. Friedl testified that on the other hand, Dr. Friedl has a membership at Beach Grove Golf and Country Club and plays golf at least twice a week. He is the one who is the shareholder in the club and has full privileges. Also, she said before separation they used to go to great restaurants and now her lifestyle has changed significantly.

[ 39 ] Mrs. Friedl testified about her current and past health issues. Since 2011 she has developed pain in her shoulders for which she was initially prescribed Ibuprofen. She has had an ultrasound but the pain continues to interfere with her sleep. It also has interfered with her ability to work and she has been taking off half days. She is continuing to be treated by an orthopaedic specialist who has conducted an MRI.

[ 40 ] Mrs. Friedl also testified about the counselling that she has been involved with over the last number of years. In the fall of 2009 she took a four month sick leave because of anxiety and stress issues she was experiencing.

[ 41 ] With respect to her income, Mrs. Friedl testified that she earns $102,552 per year which is the top of the category. She is making as much as one can and still stay in the union. Mrs. Friedl testified in detail about the various expenses shown on her financial statement. Mrs. Friedl said that she intends to use $200,000 from the equalization payment that she will have by the end of June 2012 to pay off all her debts which will leave her with a balance of $236,000.

[ 42 ] Mrs. Friedl submitted her university yearbook as an exhibit in which she had set out her “life plan”. She agreed that she had written what was contained in her yearbook. Her plan was as follows: 1. Get married; 2. Move to Windsor; 3. Work; 4. Have children; 5. Get an 8:00 to 4:00 or 9:00 to 5:00 job in nursing. On cross-examination she agreed that she had realized all of her plans.

[ 43 ] On cross-examination Mrs. Friedl was also questioned in detail about her expenses. She agreed that she had an annual income of $138,561 including spousal support. She also acknowledged that she is able to save $500 per month and as well has RRSPs and a retirement pension.

[ 44 ] Mrs. Friedl also acknowledged that the lifestyle she and Dr. Friedl enjoyed during their relatively brief reconciliation, was significantly different than what they had enjoyed during most of their married life. The “dream home” was worth three times the amount of any other home in which they had ever lived. She acknowledged that there is a mortgage on the home in excess of $400,000. Mrs. Friedl acknowledged that she has always excelled at everything that she has ever undertaken and that Dr. Friedl had been supportive of her changing careers and going back to school to obtain her Bachelor of Education.

[ 45 ] With respect to her statement that she had primary care of the children, she acknowledged that Dr. Friedl was an involved father “when he was home.” She agreed that he coached hockey and that he was the one responsible for taking the boys to practices at 6:00 a.m. When challenged that she had pursued all of her options as a teacher and had attained every career goal she had set, she disagreed, and said “if I hadn’t married Walter I might have been a superintendant of education or a director of a hospital.”

[ 46 ] Ronald St. Pierre was the next witness for Mrs. Friedl. After being qualified as an expert by the court, he said that he had been retained by Mrs. Friedl to do a valuation of Dr. Friedl’s dental practice. He agreed that he and Mr. Tracy, who was retained by Dr. Friedl had agreed that the income of the practice was $268,000 per year. This number represented a compromise between his position and Mr. Tracy’s position.

[ 47 ] Subsequent to the first report he prepared for Mrs. Friedl’s counsel, Mrs. Friedl’s counsel sent him a case, Riel v. Holland (2003), 2003 3433 (ON CA). In that case, certain expenses paid by a shareholder of a corporation which were determined to be personal expenses were added back into income along with an adjustment for income tax purposes which resulted in a higher income for the shareholder of the corporation. Applying the principles in that case to the professional corporation of Dr. Friedl, Mr. St. Pierre arrived at the conclusion that certain legal expenses and insurance payments should be treated if treated as the court treated the expenses in Riel v. Holland, Dr. Friedl’s income for the purposes of paying spousal support would have been $318,000.

[ 48 ] On cross-examination Mr. St. Pierre acknowledged that there were other ways of treating such expenditures by the corporation and that it would be an appropriate characterization of the expenditures to be reflected in a shareholder loan. Mid trial, Mr. St. Pierre and Mr. Tracy had a further consultation with both counsel and it was agreed by all that the amount of Mr. Friedl’s income for the purposes of paying spousal support, should spousal support be ordered, was $277,000.

EVIDENCE OF DR. FRIEDL

[ 49 ] Dr. Friedl testified that he is 53 years old, having been born on February 12, 1959. He currently lives at 726 Old Tecumseh Road with the parties’ son, Zachary.

[ 50 ] Dr. Friedl graduated in 1984 from the University of Western Ontario School of Dentistry. He practiced as an associate for six years in a dental practice in Windsor until he opened his own practice on Lauzon Road in 1990 where he practiced for 20 years. He has just recently moved to a new location at Tecumseh Road and Pillette.

[ 51 ] Dr. Friedl confirmed that he owes Mrs. Friedl an equalization payment of $310,643 as agreed to in the minutes of settlement. He has already made an advance payment of $175,000 so he owes an additional $135,000 as well as an additional payment of $301,125 to Mrs. Friedl for her interest in the matrimonial home.

[ 52 ] Dr. Friedl testified with respect to his financial statement which was made Exhibit 16. He acknowledged that although the financial statement said that his actual income for 2011 was $213,381.49, he agreed that for the purpose of paying spousal support, should entitlement be established, he agreed with the amount of $277,000. With respect to his expenses, there is a mortgage on the home in the amount of $411,000 for which he pays monthly mortgage payments of $2,793.57. The amount of the mortgage will be increased as he requires additional funds to complete making the equalization payment and to pay Mrs. Friedl her interest in the matrimonial home. In addition to re-mortgaging the property he intends to use non-registered investment funds to pay the balance.

[ 53 ] Dr. Friedl lives at the home with Zachary and the expenses set out in his financial statement includes utilities, household expenses for himself and Zachary, transportation expenses for himself as well as car insurance for both Warren and Zachary.

[ 54 ] With respect to other expenses, the amount of $300 for clothing is for himself with an additional $125 for Zachary. He makes RRSP/RESP contributions in the amount of $1,666.67 per month. He budgets $350 per month for vacations. Dr. Friedl has charitable donation expenses of approximately $250 per month, boat maintenance expenses of $1,200 per year as well as approximately $1,300 per month in loan payments.

[ 55 ] As for assets, Dr. Friedl had $455,764.02 on the date of separation which included bank accounts, non-registered investments and RRSPs. As of the date of swearing the financial statement, his current assets are $488,445.63. These will be significantly reduced, however, as some of the non-registered investments will be used to pay the outstanding balance of the equalization payment to Mrs. Friedl as well as her interest in the home. At the time of separation Dr. Friedl and Mrs. Friedl had a joint line of credit of $118,782.32. Since that date, Dr. Friedl has been responsible for paying that debt and the current balance at the time of trial was only $800 less than it was on the date of separation. His car was purchased with money borrowed from his corporation which is being re-paid to the corporation in the amount of $200 per month.

[ 56 ] With respect to their marital history, Dr. Friedl testified that he had been practicing dentistry in Windsor just over a year when the parties got married. When Mrs. Friedl moved to Windsor she got a job with the Victorian Order of Nurses. She stayed in that job for five years until she thought that she would be better off as a teacher so that she would be off work when the children were off school. She thought that this change in profession would work better for the family and he agreed with her and was supportive.

[ 57 ] While he agreed that all of Mrs. Friedl’s income when she was working went in to the joint account, his income did as well. With respect to extra courses that Mrs. Friedl took, he said he would look after the children when she was away. With respect to her current job, Dr. Friedl said Mrs. Friedl had found the job stressful at one point and tried working part-time. With respect to child care arrangements when Warren was cared for by their sister-in-law when he was 17 weeks old, Dr. Friedl said that sometimes he would drop Warren off at his sister-in-law’s and she would pick him up.

[ 58 ] While Mrs. Friedl worked with the Victorian Order of Nurses, she had to work some weekends. He would look after the boys. Dr. Friedl agreed that she generally did the cooking and that he did the cleaning up afterwards. He spent his evening with the children and was involved with their bedtime routine.

[ 59 ] With respect to sports, both Warren and Zachary were involved in both soccer for a couple of years and played hockey for ten years. He coached soccer for one year and he would take the boys to the 6:00 a.m. practices. This was when they lived in Tecumseh. When they moved to Lefler Avenue in Belle River, the boys were still involved with hockey and he participated as either a trainer or a coach for two years with each of his sons at two separate times. He would go to the early morning practices, most of the games on the weekends as well as practices in the evenings. When the boys were involved in travel hockey, both he and Mrs. Friedl were involved in taking the boys to their games.

[ 60 ] With respect to their social life, Dr. Friedl said that if plans were being made to go out to dinner with his friends, he would make the arrangements. If the plans were with her friends she would make the arrangements. They entertained at home on special occasions when they would have his family over. Dr. Friedl said that it was never his intention to turn social events into recruitment opportunities to get new patients.

[ 61 ] With respect to vacations, he said Mrs. Friedl would pick up vacation brochures. After they would decide together where they were going, she would call the travel agent to make the arrangements.

[ 62 ] With respect to the boys’ involvement at Kumon, Dr. Friedl said Mrs. Friedl took the boys approximately 80 per cent of the time and he the other 20 per cent of the time. He was involved in doing Kumon exercises at home with the boys. Both of them were involved in marking the English and math assignments on a 50/50 basis.

[ 63 ] With respect to Mrs. Friedl’s involvement in helping him set up his first dental practice, the office that he had obtained was a former real estate office and had to be totally reorganized for a dental office. He said he measured all of the space and put a potential layout on graph paper. This was given to a dental supply company who then did the design. He did not like the proposed design so he did his own plan. Dr. Friedl said that he was the dentist and he knew how he wanted his office set up. He agreed that he and Mrs. Friedl worked together on the sterilization room and that she helped with picking out colours and that essentially they worked together to plan parts of the office space.

[ 64 ] With respect to the homes in which they lived since they married, Dr. Friedl’s evidence did not contradict that of Mrs. Friedl. They owned three homes prior to the house they bought on Old Tecumseh Road. Except for their very first home on Canada Street in LaSalle, they did not make any money when they sold any of the homes. When they separated for the first time in May 2007, he stayed in the home on Lefler and she moved into a town home at Whisper Creek. When they got back together again, he said that he wanted Mrs. Friedl to move back into the Lefler home and to sell or rent the house at Whisper Creek. She told him that she did not want to live in the Lefler home which they had only purchased in September 2008 because it had bad memories. She said she wanted to live on the water so they purchased the home on Old Tecumseh Road and moved in in January 2009. The Lefler home did not sell until the summer of 2009. The Whisper Creek town home was sold and most of the money went into the Old Tecumseh Road home.

[ 65 ] With respect to work responsibilities at home, he said that he did some of the work but that she did most of the work in the house. When they lived in both the Lefler and Old Tecumseh Road homes, they had a housekeeper and he did most of the outside work.

[ 66 ] Dr. Friedl’s evidence was not significantly shaken on cross-examination. When it was suggested to him that he lived in very lavish accommodation, Dr. Friedl replied that he continued to live in the matrimonial home because they would lose money if they sold it. He has had to keep up the mortgage as well as the line of credit and, although both of those debts are joint, he has been responsible for them. He agreed, however, that he had not listed the home for sale to test the market.

[ 67 ] Dr. Friedl was asked about his boat and car expenses. He did not give any evidence that contradicted his sworn financial statement. He agreed that he puts $20,000 in RRSPs per year but that is because he does not have a pension and dentistry is not a profession in which people work until they are 65.

[ 68 ] Dr. Friedl was asked about his membership in Beach Grove which he joined in 1996. He said that it costs $300 per month plus an additional $50 per month for minimums. He agreed that the cost is close to $500 per month but that part of the money that is allocated to meals outside the home in his financial statement is for the cost of Beach Grove.

[ 69 ] With respect to Mrs. Friedl’s involvement with the business, he agreed that she had helped set up his first office. At the time that she might have been buying supplies for the business, she was on the payroll and continued to be on the payroll until they separated in 2007. Dr. Friedl said that Mrs. Friedl never did payroll or deal with that aspect of the business. He had a computer program that did that.

[ 70 ] Dr. Friedl agreed that Mrs. Friedl did most of the cooking but said that he made lunches for the boys until they went to university.

[ 71 ] With respect to Mrs. Friedl’s involvement with organizing Christmas parties or other social activities to assist his business, Dr. Friedl said that every Christmas party was held at a restaurant and that someone made reservations at the restaurant. Mrs. Friedl did nothing else in relation to the Christmas party.

[ 72 ] Dr. Friedl was questioned on cross-examination with respect to the fact that Mrs. Friedl had been a gold medalist and that she had agreed to live in Windsor. Dr. Friedl said that he had nothing to do with what nursing job she selected. She wanted the VON job because it had regular hours. He said that he would not have had any objection if she had wanted to be a nurse in a hospital with shift work. Those were her choices.

[ 73 ] Dr. Friedl was challenged as to whether he would have stayed home to look after the children and only work part-time like Mrs. Friedl did. He said he would not have done that because one could not operate a dental practice in that manner. She wanted to work part-time from time to time but the nature of his job did not permit him to work part-time.

THE LAW

[ 74 ] The jurisdiction of a judge of this court to make a spousal support order is grounded in s. 15.2 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) with those provisions shaped by the relevant case law. In considering whether it is appropriate to make an order for spousal support, the court is required to take into account the factors set out in s. 15.2 of the Divorce Act:

15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

Interim order

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1).

Terms and conditions

(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

Factors

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

( a ) the length of time the spouses cohabited;

( b ) the functions performed by each spouse during cohabitation; and

( c ) any order, agreement or arrangement relating to support of either spouse.

Spousal misconduct

(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

Objectives of spousal support order

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

( a ) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

( b ) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

( c ) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

( d ) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[ 75 ] In addition to the Divorce Act, there are numerous decisions in which the courts have considered various aspect of spousal support. I was referred to a number of those cases by counsel which I will review below. With respect to the case law, it is important to remember that determinations relating to entitlement, quantum and duration of spousal support are inherently fact driven exercises. This principle was highlighted by L’Heureux-Dubé J. in Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813 at pp. 870-71:

There are no easy recipes nor are there neat compartments on which to rely, as families and family relationships are not simple. ... Spousal support orders remain essentially a function of the evidence led in each particular case.

In other words, while other family law decisions, both at the trial and appellate level, provides guidance and principles to be considered, in the end, the final determination must be based on the evidence presented at the trial and the findings of fact made by the trial judge based on that evidence.

CONCLUSION

[ 129 ] In summary, the following order shall issue:

1. A divorce order is granted, effective 31 days from May 15, 2012;

2. The respondent shall pay spousal support to the applicant in the amount of $6,000 per month, commencing June 1, 2012, for seven years, terminating with a final payment May 1, 2019;

3. The respondent shall pay arrears of child support to the applicant in the amount of $9,552;

4. An order in accordance with the Minutes of Settlement filed as well as an order that the balance in the jointly held Manulife non-registered joint account as of the date of trial shall be divided equally between the parties.

“Original signed by Justice Nolan ”

Mary Jo M. Nolan
Justice

Released: November 16, 2012

COURT FILE NO.: FS-10-9949
DATE: 20121116

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Susan Mary Friedl Applicant – and – Walter Louis Max Friedl Respondent REASONS FOR JUDGMENT Nolan J.

Released: November 16, 2012