ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-43830
DATE: 20120209

BETWEEN:

CHERYL ELIZABETH SHAND Applicant
– and –
RICHARD GORDON SHAND Respondent

Ronald M. Zboril, for the Applicant
David J. Thrasher, for the Respondent

HEARD: December 5 & 6, 2011

REASONS FOR JUDGMENT

GLITHERO J.

[ 1 ] This is a divorce action. The only live issue requiring adjudication is that of spousal support as claimed by the applicant, in terms of entitlement, duration and quantum.

[ 2 ] The applicant is currently 53 years old and the respondent is age 55. They were married on June 27, 1980. The applicant claims they separated on February 23, 2009, whereas the respondent says it was in September, 2009. The couple has three daughters, Heather presently age 30, Laura presently age 28, and Amanda, who is 22 years old. All three are now independent. Amanda lived at home with her father and was dependent on him until she graduated from community college in April, 2011, although she did earn significant amounts while working, and at the same time attended school. All three testified and gave material evidence in these proceedings.

The Applicant’s Employment History

[ 3 ] The applicant worked for an insurance brokerage from 1988 through to July 25, 2009. She was earning $48,000.00 per year. She admits that she quit that position.

[ 4 ] Various accounts were given as to the reason for her quitting that job, and the disparity in reasons impact on her credibility. In chief, she initially testified that she left that employment because her insurance broker licence was coming up for renewal and upon reading the renewal form, she realized that she would have to admit that she had been convicted of the criminal offence of mischief, a charge arising out of events as between the parties, and she did not want to have to explain the circumstances to the Registered Insurance Brokers of Ontario Board. However, Exhibit 2 in these proceedings is a letter dated October 8, 2010 from the Board to the applicant acknowledging the Board’s knowledge of her criminal conviction and advising the Board was prepared to renew her licence. The explanation for having quit because of licensing problems is not borne out. She seems to have had her licence renewed within six days of having finally submitted the required form.

[ 5 ] At another point, she claimed that she could not have submitted the application in a more timely manner because she did not have the $140.00 owing for the renewal fee, and that the respondent would not give it to her. His account is that he was willing to pay it, but would not to provide her with his credit card for her to use for that purpose, as he was convinced she would abuse the card. Given her admitted addiction to gambling and drinking, and her admission that prior to separation she was the person who controlled all of the finances in a marriage that was fraught with overspending, in my opinion, the respondent’s concern was well-founded. I accept his evidence.

[ 6 ] In cross-examination, she testified that she never did like her job. She agreed that when she quit, she told her husband that he would have to now support her. Her daughter, Laura, testified that she had encouraged her mother not to quit her employment and she confirmed that her mother had said to the respondent, in the presence of the daughters that she was going to quit and the respondent would have to support her. Laura’s position is that there were no apparent health concerns or issues. She was aware her mother had fibromyalgia, but is also aware that she had had it for many years and worked continuously despite it. She agreed there had been times when her father was unemployed during the marriage while the mother worked, but Laura testified her father was also on a severance package, and in that sense contributing during the time it took to find more employment.

[ 7 ] Heather Shand testified that in discussions surrounding the applicant’s decision to quit work, her mother had said that she was unhappy and did not like how she was treated at work. Her evidence is that the applicant said that she had worked hard and now the respondent could support her. Her evidence is that the applicant told them that she was fine, it is just that she wanted a break, and that maybe she would find another job in the fall. Amanda recalls her mother saying that if the respondent did not take her away on a vacation, then she was going to quit her job. The respondent’s evidence was that prior to quitting her job, the applicant threatened to do so and said that she was going to ruin him, and make him support her as she had supported him.

[ 8 ] The applicant obtained another job, again with an insurance brokerage, this time in Milton, which started on October 4, 2010 and paid the same annual salary of $48,000. That employment lasted until March 25, 2011, at which time she quit that position as well. She did not work between those two jobs. She has not worked since the last job. She has not looked for any work since the job.

[ 9 ] Her evidence regarding why she left the most recent employment is that she could not find a place to live in Milton that she could afford. In my view, it is of some significance that she met Bryan Beazer at a music concert in April of 2010. Between then and her quitting of the new employment in March, 2011, she appears to have gone on five trips with him, to Nassau, to Los Cabos and to Bermuda. She moved to Ottawa to live in his home in March, 2011, the same month that she quit the new employment. She testifies that she is a boarder only in that home and pays $400.00 per month for which she gets her room, Mr. Beazer buys all the food, and she cooks it. She agrees that shortly after they met, they had an intimate and romantic relationship, but she and Mr. Beazer both insist that that romantic and intimate relationship ceased in August of 2011, when he was caught cheating on her, and since then, he is merely her landlord.

[ 10 ] The applicant testifies that she has not looked for work since leaving her most recent job on March 25, 2011, in Milton, where she earned the same income doing the same job as she had in previous employment. She testified that she has not looked for work because of her health issues. She indicates that she hopes to get back to work once this divorce is over, but she has no idea when she will do so.

Medical Evidence

[ 11 ] A medical report by her family doctor, Dr. Russek, dated November 12, 2011, says that in relation to a January 20, 2009 visit by the patient, she indicated she had quit her job and complained of back pain. That is inconsistent with all the other evidence indicating that she did not leave her job until July 2009. He further reported that at the end of that visit, she asked him about a stress leave from work, but that he could not see how that would be of assistance given that she had already quit her job. Later in his report, he quotes her as saying that she told him that she had quit her job because she “couldn’t get along with two other employees,” and then repeats that she asked for a stress leave, which was unnecessary given that it would have been after the fact.

[ 12 ] She has not seen Dr. Russek since July 20, 2010. Accordingly, there is no medical evidence before me as to present inability to work as a result of health problems.

[ 13 ] The medical report was filed as Exhibit 19 in these proceedings. It was filed pursuant to s. 52 (2) of the Evidence Act , R.S.O. 1990, c. E.23. The weight of that document is for me to determine and I do not find it particularly helpful. It purports to be written so as to answer questions put to the doctor by the applicant’s counsel. It recites that the doctor met with the applicant eight times between February, 2009 and July 20, 2010. Question 5 in counsel’s letter asked the doctor to report any diagnoses that have been made during these visits. The doctor then goes through his comments relating to the eight visits. Essentially, he just reports what the applicant had reported to him, and on occasion, applies a title to his opinion in respect of the visit. In respect of the first visit, for instance, he diagnoses “Marital discord”, as well as “Adjustment disorder” without further explanation. He refers to excess alcohol and gambling activity.

[ 14 ] With respect to any of his comments, they do not seem to be founded on any concrete test results, but rather simply reflect what he was told by the applicant. Those concrete results that he does have do not seem to support any medical conditions relevant to her lack of work. For instance, when she reported head injury resulting from a fall in Jamaica, he ordered that a CT scan be done, but that test result came back as normal. He also referred her to counselling through a Dr. David Jones, who it would appear saw her on June 19, 2009, but did not complete a report as the applicant did not complete a personality assessment questionnaire. While this doctor saw her on October 14, 2009, and opined that she had depression, as well as marital, legal and economic stressors, he notes in his report that on the same day she saw Dr. Matti, a psychiatrist at the Cambridge Memorial Hospital, who reported that he did not feel that she suffered from any anxiety disorder or depressive disorder. Dr. Matti did diagnose Adjustment Disorder, which is not further explained. Dr. Matti concluded that he did not have to see the applicant again. Because Dr. Matti diagnosed her as having Adjustment Disorder, Dr. Russek changed his diagnosis to be one of Adjustment Disorder as well, together with alcohol abuse and fibromyalgia, which everyone agrees she has had for years. His last visit with the applicant was on July 20, 2010, and he diagnosed Adjustment Disorder due to marital discord and divorce. He reports, however, that the applicant saw a counsellor in the doctor’s office on September 7, 2010, who reported back to the doctor that the applicant’s score on a particular test, administered by that counsellor, indicated that the applicant’s symptoms were not at a clinical level, and accordingly, no depression or anxiety diagnosis was made.

[ 15 ] The last question of the doctor by counsel addressed in the report relates to the doctor’s opinion as to the applicant’s ability to maintain employment. The doctor answers this by advising that on all visits in 2009 and 2010, the applicant reported being under stress, but he adds that she often presented in the office in a very calm manner, neatly dressed, logical in her thinking, and did not mention any difficulty at work until she quit. She reported to him she quit her job because “she couldn’t get along with two other employees.” He concludes that as she had taken an overdose in September, “I would be obliged to say she is under significant stress from her marriage and legal issues, alcohol consumption, gambling and other financial strain.” He then adds that despite this, she often seemed “in good control” when he saw her in the office. He concludes that in light of the stress she was under, “this would be likely to compromise her ability to maintain employment to a significant degree.”

[ 16 ] The doctor is entitled to his opinion. The assessment of his evidence is up to me. As I see it, the doctor does little more than accept what he has been told by the patient, and even this must be qualified in that whenever any testing was done, it essentially turned out to be unsupportive of what the doctor was being told.

[ 17 ] There is no doubt the applicant felt and continues to feel that she is under tremendous stress. Much of this is, in my opinion, is a result of actions she has voluntarily taken and the situations she has created for herself.

[ 18 ] Many people continue to work while feeling the effects of stress from many various features in their lives. For some who are under stress from family or marital situations, work offers an escape.

Other Evidence Relating to the Applicant

[ 19 ] The applicant testifies as to unsatisfactory relationships with her three daughters, and suggests that she cannot understand why they are no longer close to her. She claims that she took a Volkswagen away from Amanda because Amanda was driving it without insurance. That vehicle remains in Ottawa with the applicant, although she claims she is not driving it. In fact, the vehicle was in her name and for that reason, I accept Amanda’s evidence that it was not she who cancelled the insurance, but rather the applicant. The owner of a vehicle is the one who has to insure it.

[ 20 ] In terms of debt, she agrees that the couple had significant debts, and that some were joint debts. In chief, she testified that more of them were incurred by the respondent than by her. At other points in her evidence, she admits that she controlled the finances during the marriage, and that accordingly, she was aware of everything that was spent. Two of the larger debts she refers to were for the Volkswagen, I have mentioned, and for a Pontiac motor vehicle. It was she that drove the Pontiac until it was repossessed upon her bankruptcy. It was she, I find, who cancelled the insurance on the Volkswagen and she still has it.

[ 21 ] In cross-examination, she agreed that she is still on the respondent’s benefit package and that any claims she has are paid.

[ 22 ] She agreed in cross-examination that her insurance business licence did not expire until several months after she had quit her job and accordingly, she could have worked longer than she did. She agreed that her daughter was married on August 26, 2011, and that she did not attend the wedding because she had no money to get there from Ottawa. She then admitted that within days of the wedding that she missed, she then went on a trip to Nassau, paid for by Mr. Beazer - yet that is at a time when she claims the romantic relationship between them had ended, and that he was now her landlord.

[ 23 ] The applicant testified that she is now living on social assistance, and that the authorities there had given her a three month reprieve from having to look for work. She has not told them about the five trips she has taken with Mr. Beazer.

[ 24 ] The applicant called Wynne Leidik as a witness. This woman had hired the applicant in 1988 for job in the insurance field and they had remained friends throughout. She testified that she was aware of matrimonial problems between the applicant and respondent based on what the applicant told her, but testified she never saw any discord between the two, and that she was surprised at what she was told by the applicant. When asked about health problems, she testified that she had not observed any health problems on the part of the applicant. She described the applicant as being always bubbly and outgoing, lots of fun and full of life. Even in the last three years, they continue to have at least periods where the applicant is lots of fun and is outgoing. In September of 2009, she and the applicant went on a trip to Jamaica some two to three months after the applicant had quit her job. During the trip, the applicant was “fun and bubbly” and the two of them had a good time.

[ 25 ] Bryan Beazer testified that he is the applicant’s landlord, having met her in April of 2010. Within a month, they became more than friends and had a relationship. That relationship ended when he was caught by the applicant with another woman. He offered that his betrayal of the applicant, by having an affair, contributed to her emotional difficulties. In cross-examination, he also admitted that the most recent trip that he and the applicant took was to Bermuda, about a month before trial, and that it was a cruise on which they shared a cabin. He maintains that for that trip, and the two before, while they shared a cabin, they were not intimate.

[ 26 ] Laura Shand testified. She confirmed that she urged her mother not to quit her employment, that her mother quit anyway indicating in front of the girls to the respondent that now he would have to support her. She testified that her mother had no apparent health issues at the time she quit her job. She had invited her mother to her wedding, which occurred in August of 2011. The applicant agreed she would attend and then a week or two later, indicated that she would not come. In terms of assisting her mother financially, Laura Shand testified that she did not even know where her mother was living and the only communication she had was by email.

[ 27 ] Under cross-examination by counsel on behalf of the applicant, in response to a suggestion that she would agree that her mother was under stress, Laura answered that, in her opinion, it was not the applicant who was under stress, but rather her father, the respondent. Her evidence is that she was never asked by her mother to provide money to cover the cost of the trip to the wedding, but rather her mother had indicated that she could not come because she would be arrested for violating a recognizance – Laura was told of that by another sister, but Laura’s evidence is that she never indicated to her mother that that was the case, nor was it even discussed amongst Laura and her sisters.

[ 28 ] Heather Shand testified and confirmed that on the day the applicant gave her notice in quitting her job, she indicated in front of the family that she had worked hard and now the respondent could support her. Heather’s opinion is that her mother was fine from a health point of view, and indicated that she just wanted a break from work and that maybe she would find a job in the fall. Her evidence is that with respect to her mother attending the wedding, the issue went back and forth between Laura and her mother by phone on several occasions, and finally was determined when, on the night of the rehearsal dinner, the applicant called and said that she was going to attend and that Heather was to arrange it. Heather advised that the applicant was no longer invited because all of this was putting so much stress on her sister, whose wedding ought not to be spoiled by the applicant’s behaviour.

[ 29 ] In cross-examination by the applicant’s counsel, Heather advised that in her opinion, it was the applicant who was the instigator of the problems within the household, and that the respondent and the daughters all just reacted to whatever the applicant was doing. Her view is that the applicant has made it impossible for any of the daughters to have a relationship with her.

[ 30 ] Exhibit 18 in these proceedings is documents relating to her bankruptcy. They are dated March 4, 2011, the same month in which she quit her most recent employment. In the bankruptcy documentation she promised to pay the estate of her bankruptcy the monthly sum of $547.14. She agreed to pay this amount after having claimed as housing expense the amount of $1,000.00 per month. She claims to have found it necessary to quit the employment because she could not find affordable housing in Milton near her employment position. Given that she was able to find acceptable, if not luxurious housing in Ottawa for $400.00 per month, it is somewhat incredulous to claim that she would not have been able to find equivalent accommodation in Milton in keeping with the amount she had budgeted.

[ 31 ] I was not very impressed with the evidence of the applicant. While making allowances for the fact that it must be difficult for anyone to testify about a very unhappy marital situation, and to have one’s children testify in a manner contrary to your position, nevertheless, the applicant in my judgment often seemed quite frantic in her evidence. In my opinion, she was quite aware that her behaviour in the past two or three years has been questionable at best, that she has been the author of her own misfortune, but during her testimony was anxious to try and blame everyone else, and to exaggerate her medical problems, her business problems, her financial woes, and was also anxious to minimize the nature of her relationship with Mr. Beazer.

[ 32 ] With respect to the many trips taken since the separation, with Mr. Beazer, his evidence as well as hers is that he paid the expenses of those trips. Nevertheless, they are relevant, in my view, to her claims of ill health and emotional turmoil. If she is healthy enough to go away on such frequent trips, and obviously enjoy herself as reflected in the photographs, and according to the evidence of Ms. Leidik, in my opinion she would be well enough to work, and her emotional condition is not nearly as dire as she would have everyone believe.

[ 33 ] A financial statement of the applicant wife dated September 22, 2010, indicates her monthly income to be $4,000, her monthly expenses to be $3,640, for an excess of income over expenses of $360 per month. In that statement, she shows joint debts owing as of the date of the statement in the amount of $146,600.

[ 34 ] A financial statement filed at the trial date of December 1, 2011, indicates her monthly income to be $686 and her monthly expenses to be $674, for an excess of income over expenses in the amount of $12. She continues to show some joint expenses, but of course they have now been wiped out as far as she is concerned because of her bankruptcy.

Evidence of the Respondent

[ 35 ] The respondent, Richard Shand, works in sales for a lumber company and has for the past 13 years. I accept his evidence as reflected in his paystub, that he earns $75,000 per year. He advises that he usually gets a Christmas bonus of about $2,500 or so. He has a benefit package through work and the applicant is covered by it, as once she left her own job, he converted his benefit coverage into a family plan.

[ 36 ] In terms of finances, the respondent testified that they always had problems with debt. Up to February 2009, when the police were called and arrested the applicant for mischief (charge withdrawn), the applicant handled all of the finances, and indeed had credit cards that the respondent did not even know about. He testified that towards the end, she would threaten that she would quit her employment, unless he would take her away on a vacation. His evidence is that in July of 2009, she threatened to quit her job and told him that she was going to ruin him, and that he was going to have to support her, as she has supported him.

[ 37 ] His evidence is that between February of 2009, when the police were called and July of 2009, they continued to live together as the applicant saw fit. She would come home when she wanted to. Up until February of 2009, their earnings had been pooled into a joint account. As a result of the applicant quitting her employment in July of 2009, she had no further income, and no employment benefits because she quit, and so the family income was reduced by one-third. Nevertheless, in August 2009, just after she had quit, the applicant took a trip to Jamaica with her friend.

[ 38 ] The respondent husband testified that the separation was on October 27, 2009, when the applicant went to court and pleaded guilty to mischief and the crown dropped a charge of assault. She was placed on probation for nine months, a term of which was to stay away from the house and have no contact with the respondent, other than with his permission. His evidence is that after she left, he continued to remain in love with her and would provide her with anything she needed if she came to the house and got it. She took the Pontiac when she left and he continued to pay for it, and he paid for the car insurance on both the Pontiac and on the Volkswagen after she quit her job, up until the time she removed the insurance on the Volkswagen and the Pontiac was repossessed, as a result of her bankruptcy. After she left, he allowed her to draw $200 per month on the joint line of credit, upon which he made payments.

[ 39 ] It was on September 10, 2010, that the respondent came to realize the marriage was over, as a result of pictures arriving by email at the house of the applicant and Mr. Beazer at a Sandals Resort on one of their holidays. In the photographs, they are kissing and obviously having a good time.

[ 40 ] I accept the respondent’s evidence that he spends approximately $2,000 per month, servicing debt, over what he earns. That figure does not include what he previously paid for the applicant’s car or her insurance. The car payment he had been making was $340 per month. As the applicant’s bankruptcy relieved her of financial responsibility, the respondent continues to be saddled with joint debts. He continues to make the mortgage payments, and continues to make payments and is responsible for the joint lines of credit. He continues to make payments on a Visa card and can no longer draw money on it. He has a line of credit in his own name and a CIBC Visa in his name, which is the source of funds he has used to finance the debt payments over and above his ability to pay out of income.

[ 41 ] In cross-examination, when asked why he did not offer the applicant any financial assistance so that she could attend their daughter’s wedding, he pointed out that he did not even know at the time where the applicant was living, nor was he asked to assist financially or told that it would be necessary.

[ 42 ] The respondent paid the vehicle insurance on the Pontiac up to November, 2010 in the amount of between $135 and $150 per month. The applicant had the vehicle during that period of time.

[ 43 ] I found the evidence of the respondent to be reasonable and convincing. He remained consistent in his testimony, and was prepared to give answers unfavourable to his position if asked about those topics. His version of the events is supported by that of the evidence of the three daughters. I thought each of them to be responsible, intelligent young ladies, placed in a lousy position in terms of being called as witnesses in this case. My impression of all three were that they were not happy at having to take sides in this dispute, but realizing the situation, as they felt that their mother had created it, they felt obliged to speak to truth as they saw it. I accept that they were doing so.

[ 44 ] The respondent’s financial statement dated May 5, 2011, shows employment income in the amount of $6,236 per month. With an average bonus of $2,500, this would bring his monthly income to approximately $6,470. His monthly expenses are $8,236 for a shortfall of expenses over income in the amount of $1,766 per month. All of the house expenses totalling $2,054 per month fall upon him, plus utilities. The mortgage on the matrimonial home has a balance owing today of an estimated $238,000. There is a balance owing on a joint line of credit on one account in the amount of $24,800 and on another account jointly held with another bank, the sum of $5,645. There is $8,463 owing on a joint Visa account. In addition, he owes over $55,000 on other loans or credit cards, and much of the totals owing on them reflect that they are the source of funds he has used to maintain the shortfall in his ability to continue to service the jointly held debt. These figures do not include the car payments or the car insurance payments that he made initially on both cars, but following on the wife’s Pontiac prior to its repossession.

Summary of Findings

[ 45 ] While I fully appreciate that conduct on the part of a spouse is irrelevant to the issue at hand, based on the evidence, I conclude that this is a situation where Mrs. Shand essentially decided to end the marriage for no apparent reason.

[ 46 ] I find that the applicant voluntarily quit her employment, not once but twice during the relevant time period. This is not a case where her job(s) disappeared, nor is it a case where she left her employment at the wish of an employer. She simply decided she was not going to work anymore.

[ 47 ] While she claims medical justification for this decision, I find that it is not borne out by the evidence I have heard. The medical evidence suggesting such a conclusion rests on the applicant’s own accounts given to her doctor. The results of any tests employed do not support the conclusions sought by the applicant. Her own family and Ms. Leidik give evidence undermining her claim to any sort of illness or condition which justifiably would undermine her ability to work.

[ 48 ] I find that she has not made any effort to obtain further employment and thereby to support herself. No evidence has been lead to justify the inference that positions in her former line of work are unavailable or difficult to obtain.

[ 49 ] I find that she did nothing to contribute, financially or otherwise, to the childcare of the youngest daughter prior to her completion of schooling in April of 2011.

[ 50 ] While her current income from social assistance is meagre, it meets her needs according to the financial statement she has sworn and filed. This is in large measure as a result of the arrangement she has with Mr. Beazer. Even so, the many vacations that she has gone on with him are not even reflected in the financial information she has provided.

[ 51 ] The applicant’s September 2010 financial statement shows joint debts owing in the amount of $146,000. The respondent’s current financial statement shows a shortfall in terms of expenses exceeding income in the amount of $1,766 per month. Most of this arises from the requirement to service joint debts. While the bankruptcy served to expunge her liability, the respondent has been left to pay these expenses. I am satisfied that at least $750 per month of the shortfall is attributable to the applicant’s share of the joint debts, which the respondent has been left to pay.

[ 52 ] I also accept the respondent’s evidence that he allowed the applicant to draw $200 per month on the joint line of credit, and that he continued making car payments on her behalf in the amount of approximately $340 per month, and vehicle insurance up until November, 2010 in the amount of at least $135 per month.

Result

[ 53 ] I am mindful that s.15.2(4) of the Divorce Act requires that I take into account:

“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.”

I also remind myself that spousal misconduct is irrelevant.

[ 54 ] I also recognize that subsection (6) directs that,

“A support order 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 to the spouses arising from the breakdown of the marriage; and

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

[ 55 ] I have no evidence that the fact of the marriage caused the applicant to pursue any particular career choice or that her career potential was limited by the fact of the marriage and its obligations. On the evidence I have, it appears that the jobs she had during her career were what she wanted. I have no evidence of any higher aspirations. I have no evidence of any economic disadvantage to the applicant as a result of the marriage. Any economic disadvantage to her does, in my opinion, not result from the breakdown of the marriage, but rather from her choice not to work, and instead to try and require the respondent to support her.

[ 56 ] I have no evidence of any job aspirations or plans on the part of the applicant that require funding so as to equip her to obtain employment and support herself. In my opinion her attitude and demeanour during the trial indicate to me that it is solely up to her to decide when and if she wishes to return to the workforce.

[ 57 ] I am not unmindful of the length of the marriage, but there is no evidence that this impacted negatively on her career prospects. I have no evidence as to the functions performed by each spouse during cohabitation, other than the evidence pointed to the fact that both were responsible for a life full of high levels of debt.

[ 58 ] If the applicant had continued to work, on the evidence I have heard, her income would have continued at $48,000 per year, or $4,000 per month. As in my opinion, the loss of that income was directly the result of her own conscious decision, and on any consideration of spousal support, I attribute that income to her.

[ 59 ] If she were continuing to earn that amount, and taking into account the respondent’s income, a midlevel of spousal support payable by respondent to the applicant would be $428 per month if she were paying child support for that period of the separation, while the youngest daughter was still a dependant, or approximately $1,000 per month if one removes child support from the equation. In my opinion, the amounts paid to the applicant, or on her behalf, together with the portion of the joint debts being paid by the respondent, but which are attributable to the applicant but for her bankruptcy, more than offset any amount of spousal support to which she might otherwise be entitled.

[ 60 ] For these reasons, the applicant’s claim for spousal support is dismissed.

[ 61 ] A divorce judgment shall issue if a clearance certificate has been obtained, or when one is obtained. As jointly requested by counsel, the applicant’s interest in the property at 514 Halberstadt Circle, Cambridge, Ontario shall be conveyed to the respondent, either by the applicant or her trustee in bankruptcy, Meyers Norris Penny Limited, 432 Niagara Street, St. Catharines, Ontario L2M 4W3, Attention: Gibson Tempo.

[ 62 ] If counsel are unable to agree on the issue of costs, written submissions may be made with those of the respondent to be received within 21 days of the release of these reasons, and with those of the applicant, within 21 days thereafter. If written submissions are not received within those time periods, the parties will be taken to have agreed on the issue of costs. Costs submissions are to be forwarded to my attention at my chambers at the court house, 45 Main Street East, Suite 721, Hamilton, Ontario L8N 2B7. Such submissions are not to exceed five pages in length, exclusive of bills of costs.

Glithero J.

Released: February 9, 2012

COURT FILE NO.: 10-43830
DATE: 20120209

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: CHERYL ELIZABETH SHAND Applicant – and – RICHARD GORDON SHAND Respondent

REASONS FOR JUDGMENT

Released: February 9, 2012

Glithero J.