ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-02-0162-02
DATE: 2012-12-07
B E T W E E N:
Cindy Ann Rea
Thomas J. Carten, for the Applicant
Applicant
- and -
Claudio Rea
Sarah S. Trach , for the Respondent
Respondent
HEARD: October 15, 16, 17, 18 & 19 2012, at Kenora Ontario
Mr. Justice F. B. Fitzpatrick
Reasons For Motion to Change a Final Order
[ 1 ] Claudio Rea (“ Claudio ”) brings a motion to change the final order of the Honourable Justice P. Smith dated December 17, 2007. Claudio wants to terminate his ongoing obligation to pay spousal support to his ex-wife Cindy Ann Rea (“ Cindy ”). In the alternative, he asks that the amount of his ongoing spousal support obligation be reduced and a termination date fixed. Cindy resists the motion and asks that support continue at the level established by the order of Justice Smith.
[ 2 ] At the opening of trial, on consent, I granted an order for divorce.
[ 3 ] The parties separated in 2002. They had an eighteen year relationship. They had two children. Their oldest, Melissa Bonnie Francesca Rea, born April 26, 1989, is now independent. The other child, Nikky Claudio Carl Rea, born October 28, 1995, is attending high school and lives with Claudio.
[ 4 ] Claudio and Cindy have a lengthy history of litigation with each other. The present matter represents the third time the parties have had the issue of their spousal support situation adjudicated. Accordingly, I will refer to this matter as “Round 3”.
[ 5 ] The initial court proceeding between these parties was resolved by a December 6, 2004, interim order of Justice Stach. The order of Justice Stach required Claudio to pay Cindy $1,750 per month spousal support. He has paid that for almost eight years. Prior to that Claudio had been paying spousal support of $1,800 per month commencing October 1, 2012. The order also required Cindy to provide ongoing annual disclosure of her health status and efforts to find employment commencing November 30, 2005.
[ 6 ] Claudio sought to vary the order of Justice Stach. “Round 2” culminated in a one day trial before Justice Smith on October 31, 2007. Justice Smith gave a thorough and complete review of the evidence. However, the result of Round 2 was that, in the main, the requirements of the order of Justice Stach for payment of spousal support by Claudio and ongoing disclosure by Cindy were continued.
[ 7 ] The current round, Round 3, started when Cindy was served with a motion to change in October 2010. The trial held in October 2012, lasted five days. From my review of the reasons for judgment given by Justice Smith (in which very complete details were provided of the evidence before him), I am aware that much the same evidence was given on this trial. Cindy, in particular, insisted on going over evidence that was also put before Justice Smith. Using the paragraph numbers in Justice Smith’s decision, the following evidence was similar at both trials:
Para 7: “The wife testified she is unable to meet her current debts and living expenses on the support that she is receiving”;
Para 8: “she met her husband when she was 19 in Winnipeg and moved to Northwestern Ontario with him where they cohabited for approximately 2 years before marrying. During the early years of the marriage the wife worked part-time for minimum wage at the Red Lake Library but quit that job in order to have children”;
Para 9: ‘the wife did not work outside the home until 2002 when she held a secretarial position that required her to work many evenings. After a relatively short time the wife quit this job citing family stress”;
Para 11: “additional health problems (of the wife) include fibromyalgia with it being the most concerning. Although the wife has what she described as “good days” most often she suffers from severe fatigue, pain throughout her entire body and flu like symptoms”;
Para 14: “her efforts to find employment include reading the newspaper, seeing a career counsellor....and doing internet searches”;
Para 16: “(until 2005) the husband worked as an underground miner at Goldcorp”;
Para 17: “He recently began driving a shuttle bus for the company at a much reduced pay scale”;
Para 26 “because Nikky is living with him the husband testified that his financial situation has been getting worse, not just because of the normal food and clothing expenses, but also because Nikky is involved in organized hockey”; and
Para 27: “As evidence of his inability to meet his ongoing expenses the husband stated his debts as of the date of separation were $84,800 whereas they are (as of October 2007) $164.700”,
[ 8 ] Justice Smith made a number of findings of facts which in my view continue to bear on the matter of entitlement to support at this time. They are as follows:
Para 39: “The evidence satisfies me that over the course of their marriage because of her homemaking role, the wife became economically dependent upon the husband and that he acquiesced in her doing.”;
Para 40: ”Further, the medical reports filed by the wife as well as her oral testimony convince me that her medical and health issues predated the separation despite the husband’s attempts to minimize them.”;
Para 42:“Notwithstanding the husband’s evidence that he urged his wife to work it is apparent that it was a joint decision for her to leave the work force to have children. The husband admitted during cross-examination that, as a result of this wife managing the children and the home, he was able to work out of the house as a miner and to earn a good salary and benefits.”;
Para 51: “The difficulty in this case is how to fairly balance the family resources. It is apparent that no matter what order is made the income of the husband is inadequate to address the needs of all concerned.”;
Para 57:“The Spousal Support Advisory Guidelines suggest that, in a marriage of this length, spousal support should be paid for a period of 9 – 18 years.”
[ 9 ] At trial, I heard the evidence of the parties and four other witnesses.
EVIDENCE ON BEHALF OF CLAUDIO
Cindy’s Ex-boyfriend
[ 10 ] Thomas Plumpton was called as a witness for Claudio. Mr. Plumpton was Cindy’s boyfriend from June 2010 until November 2011. Their relationship did not end well.
[ 11 ] In late 2011, Cindy obtained a protection order against Mr. Plumpton pursuant to the Manitoba Domestic Violence and Stalking Act , C.C.S.M., c. D93. Mr. Plumpton opposed the granting of the order. The parties settled the matter in a pre-trial like event before a Justice of the Manitoba Queen’s Bench Family Division on January 20, 2012. In that proceeding, on the basis of a promise given under oath to the Court by Mr. Plumpton, Cindy agreed to lift the protection order to facilitate Mr. Plumpton being able to cross the Canada US border.
[ 12 ] Cindy’s counsel attempted to impeach Mr. Plumpton’s credibility on the basis of certain statements made during that hearing. The transcript of the proceedings had not been disclosed prior to this trial and a good deal of trial time was taken up dealing with the attempts by Cindy’s counsel to impeach Mr. Plumpton on the basis of an alleged prior inconsistent statements made before the court in Winnipeg. Mr. Plumpton’s testimony was given with the protection of section 5 of the Canada Evidence Act , R.S.C 1985, c. C-5, and the provisions of section 13 of the Charter as he was subpoenaed to testify before this Court. The provisions of the transcript make it clear that Mr. Plumpton was not subject to a court order. I find that the extent of his promise to the Court was to not have any communication with the friends and family of Cindy. The promise given was not so broad as to prohibit him from speaking to a private investigator hired by Claudio with respect to this matter.
[ 13 ] I find that Mr. Plumpton gave his evidence in a forthright and straight forward manner. Counsel for Cindy put a letter to him in cross-examination, (again not previously disclosed) that indicated Mr. Plumpton’s regret for having done certain bad things to Cindy during their relationship. I took from observing his demeanour and how he answered all the questions, particularly during cross examination, that he has put the rather tumultuous nature of their break up behind him. In my view, the break up and the incidents surrounding the break up, did not detract from his ability to give useful evidence concerning Cindy’s activities during times that are material to this trial.
[ 14 ] Mr. Plumpton gave the Court helpful evidence concerning his observations of Cindy’s capacity to perform physical labour. Mr. Plumpton testified that Cindy assisted him with repairing the skirting of her mobile home. She assisted with repairing boards on her deck. She went dancing with him. She was able to make long distance car trips with him, traveling from Winnipeg to Thunder Bay and then from Thunder Bay to Edmonton. From his evidence, and from Cindy’s evidence which I will discuss below, I find that Cindy is not completely disabled, she is capable of performing activities of daily living, and is capable of physical labour.
Claudio’s Testimony
[ 15 ] Claudio testified on his own behalf. As noted above, he did give evidence about the parties’ history, which had been set out in the decision of Justice Smith. He testified as to his income since 2007. It was as follows:
2007 $70,375
2008 $70,842
2009 $81,748
2010 $67,698
2011 $67,556.
[ 16 ] He estimates his income for 2012 will be in the order of $58,000.00 before any performance bonus which is paid company wide. Claudio has no other source of income other than his employment as an above ground driver for Goldcorp at the Red Lake Gold Mine. He does not pursue other sources of income as the result of his child care responsibilities for Nikky. He has refinanced his home twice as the result of being unable to meet both his and Nikky’s day to day expenses. Nikky continues to play high school hockey, and as a goalie, has need for expensive equipment. Claudio and Nikky do not travel outside of the Red Lake area except for hockey trips and medical appointments. As of August 2012, his total debt as disclosed by his financial statement was $183,569.05. As of the date of Justice Smith’s order, his debt was found to be $164,700.00. Since 2007, I find that Claudio’s financial situation has deteriorated. His income remains relatively steady and I do not accept Cindy’s argument that he is intentionally under employed.
EVIDENCE ON BEHALF OF CINDY
Cindy’s Doctor
[ 17 ] Dr. Azer is licenced to practice family medicine in the province of Manitoba. She has been treating Cindy since 2008. Dr. Azer was qualified to give expert opinion evidence on the management and treatment of patients with fibromyalgia. Much of Dr. Azer’s testimony focused on reports she had given for various purposes since she began treating Cindy in 2008. Of most significance was her testimony that she did not make, nor was she qualified to make, the diagnosis that Cindy suffers from fibromyalgia. She admitted in cross-examination that she has no qualifications to assess or give workplace assessments. For these matters, she admitted she refers her patients to rehabilitation specialists.
[ 18 ] In the various reports produced by Dr. Azer, she agreed with counsel for the respondent that any comments concerning Cindy’s inability to work, or problems dealing with stress, were based solely on information provided to her by Cindy. Accordingly, I find Dr. Azer did not have any objective evidence of Cindy’s problems. From Dr. Azer’s testimony, I find that while Cindy did suffer from fibromyalgia, any comments made in any reports of Dr. Azer concerning the effect that stress or Cindy’s condition was having on her life and her ability to find work, were not based on any scientific or objective evidence. They were simply recitations of Cindy’s complaints which were not being tested by objective scientific or medical methods. I find Dr. Azer’s evidence was not particularly helpful in assessing the respective claims of the parties.
Cindy’s Athletic Therapist
[ 19 ] Melissa Britton-Reimer was called to give evidence on behalf of Cindy. Ms. Britton-Reimer is a certified athletic therapist who has treated Cindy since May of 2009. Cindy went to her initially as the result of a whiplash injury sustained in a car accident in May of 2009. Correspondence from Ms. Britton-Reimer was sent to Claudio, so as to satisfy the provisions of Justice Smith’s order that Cindy report any consultations with an occupational consultant or therapist. In my view, the correspondence sent by Ms. Britton-Reimer to Claudio was not clear. It was difficult to identify her main focus of treatment from the contents of the letter. Based on Ms. Britton-Reimer’s description of how she came to treat Cindy, and how she was paid by Manitoba Public Insurance, and how she did not continue to treat Cindy once coverage from Manitoba Public Insurance ran out, I find that her treatments were primarily for the MVA whiplash injury, not for fibromyalgia. On the basis of the evidence of Ms. Britton-Reimer, I find that she is not an occupational consultant or therapist. Her evidence was not helpful in assessing the efforts made by Cindy to find employment or become self-sufficient.
Cindy’s Employment Facilitator
[ 20 ] Arthur Friesen was called to give evidence concerning Cindy’s efforts to find employment. Mr. Friesen is employed by Segue Career Options of Winkler Manitoba. Mr. Friesen described himself as an employment facilitator. Cindy’s counsel did not seek to qualify Mr. Friesen as an expert witness or to have the Court find he was an “occupational consultant” within the meaning of Justice Smith’s order. I find he is not an occupational consultant or therapist within the meaning of the order of Justice Smith. However, Mr. Friesen however did provide useful evidence as to the nature and quality of Cindy’s efforts to find employment.
[ 21 ] Cindy’s contact with Segue began in later October 2009. At that time according to emails between herself and Segue, she had been offered a part time secretarial job at a local Chrysler dealership. That job did not work out for Cindy. She was assessed by Segue in December 2009. The assessment was filed as evidence. Among other things the assessment concluded:
Ms. Rea worked quickly and accurately on the work samples. She was overall very concerned with doing well. She required breaks during the assessment process. She performed particularly well on the CAAT; scoring in the post high school levels. Her scores on the Aptitudes section were all strong. She has a varied range of experience and training that could help her to find work. (i.e.: computer skills). She is however, limited by her physical challenges and how they are complicated by stress and physical activity. She currently requires a great deal of flexibility from an employer regarding scheduling, breaks, time-off, her physical limitation etc. She prefers afternoon or evening work.
[ 22 ] Mr. Friesen worked with Cindy from late January 2010 until April 2012. A number of the entries in the very detailed log kept by Mr. Friesen and others at Segue indicate that, on occasion Cindy, was somewhat particular in dealing with employment opportunities. For example, in February 2010, Cindy refused a position at a local manufacturing facility as she said she was not interested in the field and saw “no ladder to climb or enough pay”. In July 2010, she was provided with an opportunity to audit a job that involved doing data entry. By the third day, she had enough. She indicated she preferred secretarial work and wanted to only work part time as she got too tired with full time hours. The entry in the log indicated that “Cindy doesn’t realize what Segue is trying to do for her…Cindy has a shell around her that makes it hard to be personable with her. Perhaps this is what is keeping her from finding employment. Her computer skills were very good and she had no troubles doing the task at hand”.
[ 23 ] By August 2010, Cindy had found part time employment assisting with a bookkeeping business. By January 2011, she was looking for something else as the bookkeeping work was slow. In November 2011, Cindy inquired of Mr. Friesen concerning opportunities in real estate. At trial, Cindy testified she has only recently registered for a real estate course that was to commence following the conclusion of the trial.
[ 24 ] Mr. Friesen testified that Cindy is a capable and responsible person. She does not require a high level of assistance as far as employment facilitators go. Segue did assist her efforts to find employment. However, the efforts, in my view, did not suggest that Cindy viewed the need to find employment of any particular urgency. In the 28 month period where Segue was engaged, they sent out 32 resumes on behalf of Cindy. This is just slightly more than one per month.
Cindy’s Testimony
[ 25 ] Cindy testified on her own behalf. The focus of her evidence was on the effect that fibromyalgia was having on her efforts to find employment. She described in great detail the manner in which she perceived her medical condition to be hindering her ability to find work. Also, as the result of the order of Justice Smith, Cindy was required to send annual reports to Claudio detailing her efforts to find work. These reports consisted of handwritten lists of the places Cindy had either applied for work or sent resumes. During her evidence-in-chief, her counsel had her go through almost each and every entry she had made on these documents. She admitted she could not remember when precisely each entry was made. It was therefore difficult to tell if the entries were made contemporaneous to the event, or made on a summary basis well after the fact.
[ 26 ] Despite this somewhat painstaking approach to providing evidence to the Court, ultimately I do not find that Cindy’s efforts to find employment were either diligent or reasonable. Essentially her evidence was no more than a litany of newspaper and online help wanted ads and places to which she had sent resumes. To me, this approach did not constitute a sufficiently focused and serious attempt to find work, as would be expected from a person who had twice been before the Courts, and who had been the subject of the following comment in the reasons for judgement of Justice Smith: “while I do not make any findings of malingering, there are some disquieting signs pointing in that direction” (paragraph 82)
Analysis
[ 27 ] From June 2008 to June 2010, Cindy sent out, on average, 3 resumes per month. From July 2010 until April 2012, the rate varied from 4 to 5 to 6 resumes per month on average. Of the resumes sent out, many were sent to the same employer again and again. Some resumes were sent to employers who were not advertising for employees. Her job search focused on her local community. There was no evidence led as to the specific economic conditions in the area around Cindy’s hometown of Morden, Manitoba. It is a rural area. Winnipeg is approximately 130 kilometers northeast from Morden. While Cindy is able to go to Winnipeg to visit friends, go to restaurants and meet people like Mr. Plumpton in clubs there, she did not attempt to expand her job search to this major metropolitan area after not having found work after 5 years.
[ 28 ] After May 2012, she ceased reporting to Claudio as she had found regular part time employment. In my view, her responses to several job offers were telling as to the degree to which she was seriously attempting to become self sufficient. In this court, she testified she felt she was not capable of doing full time work. She testified she turned down a job at a local manufacturing plant because it “had no ladder to climb”. It seemed incongruous to me for Cindy to rely on her lack of training, education and job skills to claim difficulty in finding work but then to turn down a job that did suit her training education and job skills because she viewed it as not having any significant opportunity for career advancement. She did not elaborate on what she was expecting as far as the “ladder to climb”, but I find her turning down that job, indicated a poor choice in the face of her obligation to pursue self sufficiency.
[ 29 ] Cindy’s notes on the first report sent to Claudio in 2008 were indicative to me of how she viewed her obligations. The report was peppered with insults, irrelevant remarks and vitriol. Interspersed among entries, which I found difficult to decipher without hearing vive voce evidence, were comments like:
“I left you. GET OVER IT! Leave the kids out of it!”
“hope my daughter doesn’t marry a (drugie?) like her dad”
“a DUI is a DUI I mean you drank & drove – just finally got caught”
“a drunk is an angry man!”
I find these comments were inflammatory and indicated that Cindy did not treat her responsibilities under the Smith order with sufficient care and diligence.
[ 30 ] I also take note of the fact that Cindy now has found what appears to be long term, albeit part time, employment. She testified that she took it upon herself to attend a local community college and take a course in a widely used accounting program, “Simply Accounting”. As the result of taking this course, she testified that the additional skill set helped her land her present job with Jakob Management. In this job she earns an average of $540 per month and it commenced April 3, 2012. I cannot find one way or the other if the fact that Cindy was able to find this job relatively close to the commencement of the trial represents design or coincidence. In any event, she now has a steady job. She indicated in her testimony she has been accepted for a real estate broker course. This course was scheduled to commence following the trial. According to the Segue notes, she initially considered this option in November 2011. She did not explain why it took her over a year to finalize this opportunity other than to suggest she lacked the funds to pay for the course, which now have come available from a government source.
[ 31 ] Cindy also testified about another of the obligations imposed upon her by the order of Justice Smith. The order required Cindy to consult with an occupational consultant or therapist yearly, and a written report was to be provided to Claudio commencing in June 2008. In 2008, an occupational therapist retained by Cindy, Cindy Penner, did a preliminary occupational therapy assessment regarding ability to work, in regards to activity tolerance and daily living for legal purposes. Ms. Penner concluded:
Physical and functional status assessment and findings are variable depending on workload frequency and intensity related to the nature of her diagnosis of fibromyalgia. Discussion regarding present physical abilities as it relates to her return to work and suitable work situations provide challenging as related to her subjective variable performance related to symptoms experienced from fibromyalgia.
[ 32 ] Ms. Penner went on to state that a more comprehensive function capacity assessment was necessary. This apparently costs $1,200.00. Cindy said she could not afford that. She did not otherwise consult any further with Ms. Penner or any other occupational consultants or therapists. In that respect, she was not in compliance with the order of Justice Smith on an ongoing basis.
[ 33 ] I am cognizant of jurisprudence that holds that no one factor in section 15.2(6) of the Divorce Act is to be considered paramount in cases involving the variation of spousal support orders. However, each case is to be considered on its own merits. In Miglin v Miglin, 2003 SCC 24 () , 2003 S.C.C. 24, [2003] 1 S.C.R. 303, the Supreme Court of Canada identified the fact that the objectives listed in s. 15.6(2) can and do often compete but that the section indicated an intention of Parliament to vest trial judges with a significant discretion to assess the weight to be given to each objective against the very particular backdrop of the parties’ circumstances. In my view, considering their history and circumstances, at this point of their ongoing dispute about the payment of spousal support, the cumulative effect of the Stach Order and the Smith Order, was to move the goal of self-sufficiency as articulated in s. 15.2(6) to the forefront of the consideration of entitlement to continued spousal support for Cindy.
[ 34 ] Claudio does not seek retroactive adjustments to spousal support. He argues that he has paid for long enough to satisfy the objectives of s. 15.6(2). Cindy argues that support should continue indefinitely. Claudio wants it to cease in the month following the release of these reasons or to be stepped down with an ultimate termination date to be fixed.
Efforts to Achieve Self-sufficiency
[ 35 ] I find the key issue in this matter is the assessment of the reasonableness of Cindy’s efforts to find employment and become self sufficient. I find she has made minimal efforts. This has resulted in her not becoming self sufficient as of the date of trial. Her efforts to find work were not sufficiently diligent from 2008 to 2011. She unreasonably limited her job search to very particular types of work and was not seeking work in a sufficiently broad geographic area. When she increased her efforts, perhaps spurred on by a pending trial, in the spring of 2012, she was finally able to secure a regular part time job.
[ 36 ] Cindy was clear in her evidence, she was not even prepared to consider full time employment. This is because of her subjective perceptions of her inability to carry out the functions of a full time job. Her subjective perceptions were not verified by any medical or employment professional. She turned down a full time factory type job because she said it didn’t provide her any chance for upward mobility. This is a very unrealistic approach to work from a person who has been unemployed for a very long time. She also has not taken the opportunity to pursue training opportunities. Remarkably, when she decided to take a course in Simply Accounting, she was able to find work almost immediately afterwards. This is another example of how she has not properly pursued her obligation to become self sufficient. Essentially she waited a decade to start to take her obligations seriously. When she did, her efforts bore fruit. However, Claudio paid support for that decade.
[ 37 ] As noted in the reasons of Justice Smith, and adopted by me, the Spousal Support Advisory Guidelines suggest a period of 9 to 18 years of support for a marriage of this length. The 10 years for which Claudio has paid support is a period that is within the bottom end of the range. Accordingly, I find Claudio’s time for paying should be coming to an end.
[ 38 ] Cindy chose not to fund a Functional Capacity evaluation as recommended by an occupational therapist. This choice is to be contrasted with other choices she has made, for example, deciding to holiday in Mexico on at least two occasions since 2007. She also apparently made other choices to fund this litigation by cashing in RRSP’s.
[ 39 ] As far as her medical condition goes, Dr. Azer candidly admitted there are no laboratory tests available to confirm a diagnosis of fibromyalgia. The doctor relied on Cindy’s complaints to govern her course of treatment. Also, Cindy has experienced 4 car accidents from 2006 until the date of trial. She claims to have suffered whiplash injuries in each of these accidents. Clearly these injuries are impacting on her health but they are unrelated to any circumstance that she experienced during the marriage. Cindy travels to Winnipeg on a regular basis. She was seen in bars in Winnipeg by Mr. Plumpton. She still goes out with friends to restaurants and bars. She is clear in her mind that she is disabled, but objectively it is difficult to find that she is so limited. In my view, she has simply decided she cannot work beyond 8 to 10 hours a week, she has limited her job search to finding that kind of employment in a relatively small geographic area and she has determined to continue to reside in a small rural town where, according to Mr. Friesen, there are not many jobs available of the type that suit her desires.
Conclusion
[ 40 ] In all these circumstances, I find it appropriate to vary the order of Justice Smith. The objective of section 15.2 will be met if spousal support continues for a further period of two years, but at a reduced rate. In my view, Cindy did not take seriously the provisions of the orders of Justice Stach or Justice Smith. Her reporting efforts were not satisfactory. This is unacceptable given she was not working. Claudio had a right to have the amount of support reviewed annually. Her reporting efforts did not facilitate that right. Claudio is not seeking any retroactive reduction in support. This is a practical and reasonable approach to the difficult economic situation that both these parties are facing. However, Claudio has borne the full responsibility of raising Nikky since May 2007. This obligation is continuing and Claudio is going further into debt. Accordingly, I find a reduction in the quantum of ongoing spousal support is warranted.
[ 41 ] Cindy urges me to exercise my discretion to average Claudio’s income for the past 3 years. In my view, there is no basis for that exercise of discretion. Claudio’s income has remained relatively stable. He is a salaried employee. He is not in a position to greatly influence his income upwards or downwards. Claudio has dutifully paid his support. He does not seek a retroactive decrease, which arguably was available to him given my findings concerning Cindy’s failure to properly attempt to become self sufficient. His income for the purposes on ongoing support shall be fixed in the amount of $67,556.00.
[ 42 ] I agree with the submission of counsel for Claudio that a step down order is appropriate. In terms of quantum, I refer to the recent decision of Justice Wilson in Reisman v. Reisman , 2012 ONSC 3148 . In that decision, Her Honour attributed income to a recipient spouse on the basis of a finding that the spouse was not working at her capacity. In light of Cindy’s failure to properly seek employment opportunities to become self-sufficient, I am attributing to her an annual income of $19,500.00. This amount is based on her working 30 hours per week at $13/hr. I consider this a reasonable number of hours to attribute as it is a median between full time work hours which are usually anywhere from 37.5 to 40 hours per week, and part time work which can vary greatly but typically does not go beyond 24 hours per week. It does recognize the possibility of Cindy working increased hours.
[ 43 ] In my view, Cindy has unnecessarily limited the scope of her job search, and the kinds of work she is prepared to pursue. Her expressed desire not to seek full time work is unrealistic. By never seeking full time work, Cindy has shut herself out of a large portion of the job market. She also has turned down work that could have at least provided her with steady employment.
[ 44 ] The rate I am utilizing of $13 hour is the wage rate she is presently earning. In my view, based on the evidence of the employment Cindy has had, and has applied for, this is consistent with her age, education, experience and skills that have been identified by the independent evaluators like Segue. Utilizing these figures, the spousal support guidelines indicate a range of ongoing spousal support from $1,106 to $1,442 assuming Cindy is paying no child support for Nikky. In my view, Claudio should be paying the low amount to reflect his ongoing obligations for Nikky. Accordingly I find the appropriate amount of ongoing spousal support for Claudio to pay Cindy is in the amount of $1,081 per month. This amount will commence January 1, 2013. Paragraph 1 of the order of Justice Smith is accordingly varied.
[ 45 ] Further, I order that Claudio’s obligation to pay Cindy spousal support shall cease on December 31 st , 2014. This will mean that spousal support will have been paid for 12 years. For reasons set out above, given the history of the parties since separation, the employment situation of both parties, the fact that neither appears to be getting out of debt since separation, Cindy’s failure to make reasonable efforts to become self-sufficient, and Claudio’s ongoing care of Nikky, I find that terminating the payment of support as of December 31, 2014, satisfies all the objectives of a spousal support order as set out in s. 15.2(6) of the Divorce Act , R.S.C. 1997, c. 1, s. 2.
[ 46 ] In view of the pending termination of support, the various obligations of the parties as set out in paragraph 2 of Justice Smith’s Order are hereby terminated, save and except the provision in paragraph 2(g) that requires each party to file a financial statement along with all relevant tax returns for 2012 and 2013. This exchange of financial information shall occur on or before July 1, 2013, and July 1, 2014, respectively. A Support Deduction Order shall issue.
[ 47 ] If the parties cannot agree on costs they may apply within thirty days of the release of these reasons to obtain an appointment to argue same, failing which costs will be deemed to be settled.
____________ ”original signed by”_ ___
The Hon. Mr. Justice F.B. Fitzpatrick
Released: December 7, 2012
COURT FILE NO.: FS-02-0162-02
DATE: 2012-12-07
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Cindy Ann Rea Plaintiff - and – Claudio Rea Respondent REASONS FOR MOTION TO CHANGE A FINAL ORDER Fitzpatrick J.
Released: December 7, 2012
/mls