ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SHAWNA ROOKE
Applicant
– and –
MICHAEL GALLANT
Respondent
Rollie Willis, Q.C., for the Applicant
Jeffrey Hart, for the Respondent
HEARD: January 15, 16 & 17, 2013
REASONS FOR JUDGMENT
M.J. Donohue, J.
ISSUES
1In this matter of separation and divorce, the parties had resolved all but three issues.
2The issues to be adjudicated were:
(a) Did Ms. Rooke owe a debt during the marriage to her father at the date of separation and, if so, for how much?
(b) Should Mr. Gallant pay house expenses of $7,033 to Ms. Rooke? She paid $5,789 for the mortgage and taxes from May 2010 separation until the house was sold on April 20, 2011; Ms. Rooke claims that post-separation Mr. Gallant is responsible for a damaged counter top which reduced their condo sale proceeds by $1,243.
(c) Is Ms. Rooke entitled to spousal support as she is disabled and, if so, for how much and for how long?
OVERVIEW
3The parties met in high school in New Brunswick. Ms. Rooke came to Ontario to pursue further education and employment in nursing. Mr. Gallant followed her to Ontario after completing his teaching degree. He sought and found employment with the Halton School Board. He is now a vice-principal with an income of $113,739.
4They began to cohabit in September 1999, married in 2006, and separated in May of 2010. They were together about ten and a half years.
5Ms. Rooke pursued additional education through an online course from Canyon University. Her evidence is that her father, Ernest Rooke, loaned her the funds to do so, namely $77,000, such that there is a debt owed to him at the valuation date.
6The parties had no children and were each pursuing their careers. Both parties are now 42. In the year before separation, their previous year’s incomes were $161,655 for Ms. Rooke and $89,768 for Mr. Gallant.
7Ms. Rooke was hospitalized in late August 2011, and she has claimed spousal support due to being disabled since that time. Pursuant to an interim order, Mr. Gallant has paid support of $1,612/month.
DEBT TO ERNEST ROOKE
(a) Was there a debt owed?
8Ernest Rooke testified at the trial. He is Ms. Rooke’s father. He is 82 years of age. His evidence was that he agreed to help her with paying expenses for her Master’s degree from Canyon University.
9He testified that he is a man of limited means living on a pension of $1200/month, plus CPP and his old age security. He lives in rural Nova Scotia with Ms. Rooke’s mother. He retired from the Royal Canadian Air Force in 1985 and has worked at odd jobs thereafter.
10He advanced the money on the basis that his daughter would repay him when she could.
11Mr. Rooke testified that he could not afford to just give that much money to his daughter. It would also not be fair to his other daughter.
12There was evidence of $45, 421 going from his account directly to the university.
13Ms. Rooke also provided documentary evidence and testimony of the payment of the monies and the calculations for the total.
14Mr. Rooke testified that he trusted his daughter to pay the funds back at some future date. He began to advance monies to assist her in 2003. (Ms. Rooke seeks to claim the debt accumulated from the date of marriage in 2006).
15The loan was reduced to writing on June 9, 2009. I am satisfied based on the testimony of Ms. Rooke and her father that this simply confirmed their previous arrangement. By that date, Ms. Rooke and her father had determined that the total amount owing was $83,475. This written agreement pre-dated the separation.
16Bank drafts showed the loan was repaid in August 2010 in the amount of $83,475. Mr. Rooke said he was then able to finally replace the roof on his house, replace his car, and have siding put on the house, as well as number of other projects on his land and barn.
17The evidence of Mr. Gallant, the respondent, does not contradict the testimony of Ms. Rooke and her father on this issue. Mr. Gallant stated that he did not know of a loan arrangement. Ms. Rooke had told him that insofar as the university expenses were concerned, “she would take care of it.”
18The evidence of how “she took care of it” is the monies she borrowed from her father.
19I am satisfied that a debt existed between father and daughter at the date of separation. Initially, it was an unwritten agreement to repay the funds. In 2009, it was reduced to writing. In August 2010, the funds were repaid in total.
(b) What amount was the debt?
20The total amount that Mr. Rooke states he loaned was $83,475. However $5,572 pre-dated the marriage, such that Ms. Rooke claims the loan of $77,902 on her financial statements.
21Mr. Rooke sent a total of $45,421 directly to Canyon University, which was evidenced in the documents and his testimony. The documentation is supported in the bank records and receipts.
22Ms. Rooke noted up a further $12,120 in receipted advances acknowledged by Canyon University to Mr. Rooke.
23There is a further $20,361 that is claimed but for which there are no receipts. Ms. Rooke’s father testified that he withdrew funds in cash and then bought drafts from Western Union to send to Canyon. He has noted the cash withdrawals in his records but has no further evidence that the funds were sent to either his daughter or to the university. No accounting was produced from Canyon of payments received on behalf of Ms. Rooke for these additional funds.
24In non-arm’s length transactions such as this, the documents are useful to ensure fairness in legal proceedings.
25There appears to be trust between father and daughter that he advanced those monies. There is evidence of bank drafts showing that Ms. Rooke paid back the full $83,475 that had been advanced and that was confirmed in the loan agreement of 2009.
26Ms. Rooke has the onus of proving the loans she owes. Mr. Rooke himself relied on his daughter to keep track of the funds. He had no independent evidence of what payments were made and for what. He relied on the bookkeeping done by Ms. Rooke. Her documents were precise in noting what withdrawals were payments by her father for university expenses.
27I am satisfied on the totality of the evidence that a loan of $77,902 is properly claimed on Ms. Rooke’s financial statement, and I so order.
HOUSE EXPENSES CLAIM OF $5,789 AND DAMAGE TO COUNTERTOP OF $1,243
28Ms. Rooke claims $5,789 for the amounts she paid toward the mortgage and taxes for the 11 months that Mr. Gallant resided in the house after separation. She was advised the locks would be changed at the end of August or early September.
29This claim is more properly claimed as occupation rent, but this was not pled.
30I expect that having Mr. Gallant occupy the property while it was listed and shown enhanced its value for sale.
31The half of the mortgage and taxes that Ms. Rooke paid went to the investment of the house. She and Mr. Gallant both profited on the sale of the property so I consider her payment of mortgage and taxes benefited her as well as Mr. Gallant.
32Ms. Rooke estimated the value of the house increased in value by $15,500. There were no appraisals of the house as of the valuation date, and I have no evidence to assess whether or in what way that should give her credit for her payments.
33I do not find it appropriate to order Mr. Gallant to pay Ms. Rooke the $5,789 in mortgage and taxes, and I decline to do so.
34Ms. Rooke testified that Mr. Gallant damaged the kitchen counter after separation. On the sale of the house, the purchasers discovered the damage after closing and were paid $1,243 in satisfaction. Ms. Rooke claims this is Mr. Gallant’s responsibility and should be repaid to her.
35Mr. Gallant gave evidence that the damage occurred during the marriage in the Christmas of 2009, when he was making eggs for Ms. Rooke. He claims that the damage had been covered up when the purchasers viewed the home.
36As neither Ms. Rooke nor the purchasers observed the damaged countertop until closing, I find on the balance of probabilities that this damage occurred after Ms. Rooke had moved out and most likely after the purchasers had viewed the home.
37On the balance, I also find it more likely that the incident occurred in 2010 after separation. I order Mr. Gallant to honour the full cost of repair being $1,243 less his previous contribution on closing.
SPOUSAL SUPPORT
(a) Is Ms. Rooke entitled to spousal support as being disabled?
38Ms. Rooke has an extensive educational history. The court was not provided with her C.V., but she testified to a great number of courses, certificates, and degrees, including French language instruction; a bachelor’s degree in chemistry; a bachelor’s degree in science; a diploma in nursing; a bachelor’s degree in nursing; a certificate in intensive care nursing; a certificate in trauma and neuroscience; and her masters in nursing. She is also qualified as a nurse practitioner.
39Ms. Rooke was employed throughout her education. As a young student, she had jobs as a tutor, a baby sitter, a personal care worker, a home care nurse. She also worked in a pub, a elder’s residence and a jewellery kiosk. While doing contract positions at Sick Children’s Hospital, she began her on line Master’s course with Canyon University of Idaho. While working one or two jobs she continued taking courses with Canyon University until 2009, the year before separation.
40Her evidence was that the Master’s degree opened more doors for her, particularly to obtain full time employment.
41Ms. Rooke’s annual income was $85,380 in 2007; $67,035 in 2008; $162,057 in 2009; and $81,000 in 2010 (she worked only 8 months that year). Income, apart from spousal support, in 2011 was less than $9,000.
42Mr. Gallant testified that during the marriage they informally split the household bills equally.
43At the date of separation, Ms. Rooke was employed full-time as a nurse practitioner and was doing part-time teaching at Ryerson University.
44Ms. Rooke has achieved this education level and maintained full time employment while also experiencing a number of medical issues.
45Dr. Peranson has been her family doctor since 2005. She testified in court and four of her letters were admitted into evidence on consent.
46Ms. Rooke had advised Dr. Peranson that she had fibromyalgia, chronic neuropathic facial pain, dysmenorrhea and irritable bowel syndrome. Dr. Patenson reported that until July 2010 these had been relatively stable and well controlled.
47Ms. Rooke has also been having psychotherapy treatment for emotional issues during the marriage. In May 2010 the argument occurred that started the separation. Ms. Rooke testified that it was her “regular Tuesday visit”, and she discussed it with her therapist.
48Ms. Rooke testified that she left the house after an argument on May 18, 2010. She felt Mr. Gallant was baiting her to touch him. She said that she was emotionally injured by the altercation. She did not require treatment or go to hospital. She stated she discussed it with the police that day. She said she discussed this with her psychotherapist that day. Those records were not provided to the court.
49Between May 18, 2010 and the end of August 2010, Ms. Rooke had access to the house to take her personal possessions, clothes and a bed. She was back frequently to feed the cats.
50Ms. Rooke gave evidence that in September 2010 she gave her notice at Tattle Creek, which was her full time employment. She said she was crying seeing the therapist and “was a mess.”
51The court was not provided with the employment file or any documentation of her notice being related to disability.
52Dr. Peranson, her family doctor, wrote a letter “to whom it may concern” on July 20, 2010, which stated that Ms. Rooke’s mood “has remained appropriately stable”. The doctor stated that Ms. Rooke’s physical symptoms have significantly increased, and she was advised by Ms. Rooke that it was due to the stress with her husband. Notably, the letter does not state that Ms. Rooke should not work or is disabled from working.
53No evidence was given as to any incident on July 20, 2010 to which the doctor refers. In the doctor’s testimony, she looked through her chart and found no mention of an injury or assault in July.
54Dr. Peranson wrote another letter “to whom it may concern” on February 25, 2011. She noted that Ms. Rooke had increased symptoms and that she had seen her twice monthly with fluctuating symptoms. The doctor noted Ms. Rooke had stress in a few areas of her life including workplace stress. The doctor related the increased stress to the divorce proceedings and encouraged her to begin medication. This letter also does not mention any inability to work.
55On January 23, 2012, Dr. Peranson wrote to Ms. Rooke’s lawyer to say that Ms. Rooke has had further issues. In August 26, 2011, Ms. Rooke was admitted to Oakville Trafalgar hospital with pneumonia, which was treated with antibiotics. Dr. Peranson noted that while in the hospital, Ms. Rooke complained of headaches, numbness in the arms and legs, hearing loss, diffuse muscle and joint pains. Dr. Gazala, the neurologist, saw her for these problems and considered them functional in nature and likely related to her chronic Fibromyalgia condition. The court was not provided with Dr. Gazala’s consultation note.
56The January 23, 2012 letter states that Ms. Rooke requested a medical leave of absence from her teaching duties. The court was not provided with this documentation or any employment file from the university as to why she left that position. There is no information as to whether she was given a medical leave.
57Dr. Peranson wrote, “You’ll recall that Shawna has been unable to work in her usual role as a clinical nurse practitioner since the summer of 2010.” I cannot find that this is a medical opinion that since the summer of 2010 Ms. Rooke was disabled from working at any reasonable employment. It is not stated as a medical opinion. It remarks that she is unable to work in her usual role. It is restricted to the job as nurse practitioner.
58Dr. Peranson does write that in her opinion, due to medical reasons, Ms. Rooke has been unable to work either teaching or practicing as a nurse practitioner since the hospital admission of August 26, 2011. This is a year after Ms. Rooke left her employment and fifteen months after separation.
59As of her letter January 23, 2012, Dr. Peranson’s opinion was that she expected Ms. Rooke to improve over time, such that she could return to teach part time at the university. She stated she was uncertain if Ms. Rooke’s chronic conditions would allow her to return to her job as a nurse practitioner. She added that the divorce proceedings were a significant barrier to recovery.
60The doctor diagnosed an adjustment disorder due to a chronic stressor, the divorce proceedings. The expectation was that once the proceedings were over, the disorder would clear up.
61Dr. Peranson saw Ms. Rooke twice more in 2012 and wrote a report on October 14, 2012. The doctor noted that in October, Ms. Rooke appeared quite depressed, dysthymic and tearful, with difficulty recollecting details. Ms. Rooke reported poor concentration and significant apathy with physical activity limited by pain.
62The doctor wrote that she was considering some medication that was contra-indicated, as at the time Ms. Rooke was considering getting pregnant. Ms. Rooke in her evidence explained that she was not really attempting to get pregnant, as she is now in her 40s.
63In the letter, Dr. Peranson wrote that Ms. Rooke was getting physiotherapy and massage therapy until benefits ran out in September. The court was not provided with any of those treatment records or any evidence as to its therapeutic value. Dr. Peranson simply stated she supported continued treatment.
64In the letter of October 14, 2012, Dr. Peranson wrote that Ms. Rooke’s “burden of symptoms appear to me to be chronologically related to events in her divorce proceedings. Therefore, my ability to predict her ability to work in future after these proceedings are over is limited. Her condition certainly has deteriorated due to the prolonged nature of her divorce.”
65In her testimony, Dr. Peranson was cross-examined on the medications she prescribes. She had previously prescribed Percocet for pain. She agreed it was addictive, but that she had renewed it because Ms. Rooke was not using it frequently.
66Dr. Peranson wrote in her letter of October 14, 2012 that Ms. Rooke meets the criteria for a clinical major depressive episode. She expected it would take several months to more than one year for Ms. Rooke’s conditions to improve.
67Again the doctor is not clearly stating that Ms. Rooke is unable to work in the future nor does she confirm that in her opinion Ms. Rooke is disabled.
68At the trial, Dr. Peranson did give her opinion that Ms. Rooke was not able to work as a nurse practitioner, and opined that it was possible in the future. The doctor urged continued counselling to help cope with chronic illness and stress.
69The doctor said she may not return to her 2010 level of function. This is not, however, a prognosis of permanent disability or even temporary disability.
70My impression is that the doctor was sympathetic to Ms. Rooke and was attempting to help her in her testimony as much as she could, but she was not committing herself to say Ms. Rooke was disabled from working.
71The doctor did not explain what complaints were keeping Ms. Rooke from working. It appeared that depression may have been her focus.
72I found the doctor’s evidence weak and unpersuasive. I cannot make a finding that Ms. Rooke is disabled by depression.
73The evidence regarding the fibromyalgia is related to Wasser test results that are done by a specialist. Dr. Patenson does not administer them and she did not have these records in her chart.
74Ms. Rooke testified that she suffered from fibromyalgia for years. There was no specialist report or tests or any documentation to confirm this, apart from the report of Dr. Patenson. The evidence of the doctor was that she had that information from Ms. Rooke, and she had no independent evidence of the case.
75Ms. Rooke said the fibromyalgia condition waxes and wanes. At times, the pain is so bad that she is bed ridden with nauseating pain, blinding headaches and an inability to move. The court was not advised how often this occurs.
76If the severity is as described by Ms. Rooke, I would have expected the doctor to emphasize this issue more in her reports and to have considered a referral to a specialist. As the doctor did not do so, I am left with the impression that Ms. Rooke has exaggerated her complaints. Ms. Rooke’s infrequent use of Percocet suggests the pain levels are not high.
77Ms. Rooke also testified that she had chronic neuropathic facial pain. She related it to facial surgery she had in 2003. She described that this pain can be so severe that at times she loses vision. Cold temperatures hurt her face, as do hot or cold liquids. She had previously had physiotherapy and acupuncture. I would have expected this condition to be at its most severe in the months and years post-surgery. 2003 is when Ms. Rooke began her Master’s studies while concurrently working one or more jobs. There was no evidence that this condition has worsened since 2010. I am not persuaded that this condition has changed post-separation.
78There was no documentation of this facial pain condition other than Dr. Patenson’s evidence which was based on Ms. Rooke advising the doctor that Ms. Rooke had been so diagnosed.
79Similarly, Ms. Rooke testified that she had dysmenorrhea, or painful menses. She said they were debilitating at times. She had complained of these to Dr. Patenson since 2003 but appears to have worked and studied vigorously despite the condition. There was no documentation of this condition being so serious or disabling that she required a referral to a specialist.
80Ms. Rooke further testified that she has Irritable Bowel Syndrome that caused diarrhoea several times a day and vomiting every day. She stated she coped well with it in the past. This evidence of severe diarrhoea and vomiting is not reflected or mentioned at all in Dr. Patenson’s four letters.
81I observed Ms. Rooke on the stand for most of one day and throughout the two and a half day trial. There were no requests for breaks, nor did Ms. Rooke have to leave the court at any time. I am not persuaded that this is a disabling condition.
82Ms. Rooke gave evidence on her Adjustment Disorder and Major Depressive Episode. She stated that she has no ability to enjoy things. She cries a lot, feels socially isolated, has poor concentration and is forgetful of little things. In cross-examination, it came out that part of her isolation is due to lack of finances.
83In her letter of October 2012, Dr. Patenson mentioned complaints of poor concentration, forgetfulness and apathy.
84The evidence by Ms. Rooke and Dr. Patenson was very different from Ms. Rooke’s presentation in court. Ms. Rooke appeared to be very clear headed, focused, with an excellent memory for detail. Her speech was crisp and bright. I observed her at the counsel table making notes and following the proceedings with energy. Ms. Rooke was trim, tidy and presentable looking, as well.
85I am not persuaded that there are any cognitive issues preventing her from working.
86The court was not provided with any records from the psychotherapist. There was no evidence from a psychologist or psychiatrist to set out the seriousness of the condition.
87Mr. Gallant testified that in the last few years of the marriage, Ms. Rooke only missed the occasional day on account of her medical conditions. She had told him of the stress she had at Tattle Creek where she was a salaried employee with the Ministry which was a different role than the doctors had. They argued that she was not seeing enough patients. She worked long hours there.
88It is concerning that Ms. Rooke left both her jobs in 2010, and there is no medical evidence that she was disabled from working at them. The doctor’s evidence, such as it is, dated disability as a nurse practitioner as of the hospitalization for pneumonia in August 2011.
89There was conspicuously no evidence that Ms. Rooke had sought disability income from the Ontario Disability Support Program (ODSP); Sickness and Accident Benefits from Employment Insurance (Employment Insurance); and Canada Pension Plan Disability Benefits. She may or may not have qualified for any of these benefits. There were no applications produced. She testified that she did not think she qualified for ODSP or Employment Insurance. It is curious that no applications were attempted.
90Ms. Rooke continued to pay her union dues, which protected her nurse practitioner licence to allow her to return to work. I consider it evidence of her own expectation that she is at least not permanently disabled from working.
91Dr. Peranson has not referred Ms. Rooke to a psychiatrist or psychologist. I consider that significant given that she is alleging that a clinical depression condition prevents her from working.
92There was no evidence of interference in activities of daily living, apart from Ms. Rooke stating that “some days” she can’t get out of bed. There was no evidence of what functions she cannot do at work or whether any accommodation could be made.
93Ms. Rooke had a history of doing more than one part-time contract at a time. There was no evidence of her attempting to do a part-time contract at all in 2012.
(b) What amount of spousal support is payable and for how long?
94Ms. Rooke seeks the highest guideline support of $1,896, as Mr. Gallant’s ability to pay is large. He has a surplus of income over expenses of $2,674. Ms. Rooke seeks this monthly amount for 7.5 years (the mid-range duration suggested by the Spousal Support Guidelines) less the year and a half she has received support since August 2011.
95Ms. Rooke also seeks a life insurance policy made in her favour while in receipt of support.
96In response, Mr. Gallant proposes the court order one year of monthly support for $1,612, based on the mid-range of the Spousal Support Guidelines.
ANALYSIS
97The governing legislation is the Divorce Act, R.S.C 1985, c. 3 (2nd Supp.). Section 15.2(6) sets out objectives for spousal support. An order should: recognize any economic advantages or disadvantages arising from the marriage or its breakdown; relieve any economic hardship of the spouses arising from the break-down of the marriage; and, so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
98According to section 15.2(4), the factors to be considered in making support orders are: the condition, means, needs and other circumstances of each spouse including the length of cohabitation; the functions performed by the spouse during cohabitation; and any order relating to support of the spouse.
99There is no loss of economic opportunity here which accounts for many compensatory spousal support orders. Ms. Rooke, by all the evidence, was a driven woman and reached a success level by the time of separation that surpassed that of her spouse.
100The functions of the spouses in this marriage were equally split. They operated independently.
101The evidence of how the breakdown of the marriage contributed to Ms. Rooke’s disability 15 months after separation is weak. There is mention of an assault in July 2010, but there is no record of this produced in the family doctor’s clinical notes or in a police file. No injury occurred, and no treatment was required.
102I find no basis for compensatory support here.
103The issue is then whether non-compensatory support is owed.
104The Supreme Court of Canada decision in Bracklow v Bracklow, 1999 715 (SCC), [1999] 1 S.C.R. 420 set out the parameters of non-compensatory spousal support under the Divorce Act based on “need alone”. They determined a former spouse has the obligation to pay spousal support if the other spouse is experiencing economic need at the point of marriage breakdown, even when the need does not arise from the roles adopted during the marriage.
105Ms. Rooke is still a young woman. She is extremely bright and qualified. She has a number of medical conditions that have been treated since 2005 with medications. While she had those conditions, she was able to further her education, hold three jobs, and earn an income, at times, greater than her spouse’s. An incident occurred 15 months post-separation that required her to be off work and to have it investigated. The possible diagnoses were seizures, but this was determined not to be the case.
106Ongoing symptoms have been anxiety and depression, which her doctor largely related to the divorce proceedings. The proceedings following this judgment will be short lived.
107Ms. Rooke has the onus to prove she is disabled and is unable to become self-sufficient in the near future. She must do so on a balance of probabilities.
108The evidence of the time she was in hospital is satisfactory to prove that she has had the need for support in the past. However, she has not satisfied me that her need will continue beyond a time of transition.
109Support here has been required in the past while Ms. Rooke got on her feet again and finished tests. Support for a further year will ease her progress to economic independence. After twelve months from now, I impute an average of her pre-separation income of $104,824 to her and find she is not entitled to spousal support because she has the capacity to work.
110Chief Justice McLachlin stated in Bracklow that a disabled spouse who was financially dependent on her partner during marriage was entitled to support. But in the absence of some economic disadvantage resulting from the roles adopted in marriage, such support could be limited term to ease the dependant’s adjustment to economic independence - even if he or she could not achieve self-sufficiency.
CONCLUSION
111Accordingly, I order that;
(a) Ms. Rooke owed a loan to her father of $77,902 at the valuation date;
(b) Mr. Gallant does not owe the house and tax payments of $5,789 to Ms. Rooke;
(c) Mr. Gallant is to pay for the damaged countertop in the amount of $1,243 less his previous contribution on closing; and
(d) Spousal support is to be paid as of March 1, 2013 for 12 months at the mid-range of the SSGC in the amount of $1,659.
112If the parties are unable to finalize the agreed upon net family property calculations they are to arrange a conference call with my office.
113I require written submissions within 30 days as to whether or not the divorce should be post-posed one year, so that any insurance coverage will be available to Ms. Rooke to assist her return to work.
114During the course of the trial, the parties resolved several issues.
(a) Mr. Gallant agreed to sign over the Timeshare to Ms. Rooke;
(b) The Diving equipment was agreed to in the amount of $500; and
(c) Mr. Gallant agreed to honour half the cost of the status report that was necessary to sell the condo.
COSTS
115It appears that success is divided.
116If the parties are unable to agree on costs, the court will review written submissions of three pages or less, not including any offers to settle or bills costs. The applicant is to provide her submissions in 15 days of this judgment and the respondent is to reply within 15 days thereafter. If necessary, the applicant may reply within 15 days.
M.J. DONOHUE J.
Released: February 28, 2013