ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 34238/11
DATE: 2013-04-08
BETWEEN:
SANDRA DOMINGUES
Applicant
– and –
JOAO CARLOS DOMINGUES
Respondent
J. Chaimovitz, Counsel for the Applicant
Self-Represented
HEARD: March 14 & 15, 2013
REASONS FOR JUDGMENT
MURRAY J.
[1] The applicant, Sandra Domingues, is represented by counsel. The respondent, Joao Carlos Domingues, is self-represented and returned from Spain for this trial.
[2] The applicant claims spousal support retroactive to July 4, 2012 and prospective spousal support for an indefinite period. The main dispute between the parties relates to quantum of spousal support payable by the respondent, Joao Domingues, to the applicant, Sandra Domingues, and the extent, if any, of income to be imputed to the respondent and/or to the applicant.
[3] There are no significant facts in dispute.
The Evidence
[4] The parties were married on September 22, 1984. They separated on December 23, 2009. The applicant was born on May 22, 1964 and will be 49 years of age in May, 2013. The respondent was born on June 25, 1962 and will be 51 years of age in June, 2013.
[5] The parties have two daughters, Stephanie, born on March 25, 1989, and Danielle, born on May 19, 1991. Stephanie is 23 years of age and is completing her second degree at the University of British Columbia. Prior to attending the University of British Columbia to complete her Masters degree, Stephanie received an undergraduate degree from the University of Toronto. She lives in a graduate students residence in Vancouver. Danielle is currently a student at Mohawk College and will graduate in April of 2013. She does not live at home but lives in a rented condominium in Oakville, Ontario with a roommate with whom she shares expenses. The Court has no information on the income or post-secondary expenses of either daughter while attending school or the extent of the contribution they make towards their educational expenses and no information on the amounts, if any, contributed by the applicant to those expenses.
[6] The matrimonial home at 1543 Parish Ln. in Oakville, Ontario was sold and the proceeds allocated as part of the equalization agreement made when the parties reached a partial final settlement on July 4, 2012. At that time, issues relating to equalization and spousal support for the period up to July 4, 2012 were settled and incorporated into an order of the court made by Madam Justice Snowie on July 4, 2012. The respondent has not paid spousal support since the date of the partial final settlement on July 4, 2012.
[7] The unresolved issue of spousal support for the period after July 4, 2012 is now before the Court.
[8] There is no issue with respect to child support. It is clear from the evidence that since the date of separation, and after the partial settlement in July, 2012, the respondent has provided, and continues to provide, financial support to both of his daughters. During the trial, I indicated to the respondent that - absent any unusual circumstances - any legal obligation to continue to provide child support to his daughters likely ends after completion of a first post-secondary degree. Danielle will be graduating from the Mohawk College in April of 2013 and absent any unusual or special circumstances any legal obligation to pay child support and s.7 expenses will cease at that time. As noted above, Stephanie has already completed her first degree and there is no ongoing obligation to pay child support or s.7 expenses for Stephanie. Of course, if the respondent elects to continue to provide financial support to his daughters, that is his decision.
[9] As the Court indicated to the respondent during the trial, his continuing to provide financial support to Stephanie and Danielle, while laudable, will not supplant or postpone his obligation to pay spousal support should the Court find the applicant entitled to such support.
[10] The applicant has a diploma from George Brown College in Food and Beverage Management obtained in 1984. She also has a certificate obtained in 2008 from Sheridan College where she received training as an administrative assistant.
[11] It was the applicant's evidence that during the marriage she has worked on a full or part-time basis since 1999. In 2000, she earned $18,500 per annum. The applicant earned $23,000 in 2007, $18,300 and 2008 in $19,900 in 2009. In 2010, she earned $35,500. Most of this employment income has been generated as a result of her being employed as an administrative assistant. She testified that for one year prior to attending at Sheridan College she was unable to find work. In 2011, her total income of $24,023 was derived from both employment and employment insurance. She received approximately $19,000 from employment insurance and $5,000 from employment. She testified that she was earnest in her efforts to obtain employment as an administrative assistant and that she made many applications and had on average one interview per week for almost a year. There was no documentary evidence to support this job search activity and I am of the view that she exaggerated her efforts to find suitable employment. The applicant's income in 2012 was $6,500.
[12] In May of 2012, the applicant commenced a course at Sheridan College with the intention of completing her education as a paralegal in August of 2013, with certification to follow in February of 2014. According to the evidence of the applicant, this course requires 18 hours per week of class time and that she has obtained part-time employment in addition to attending at school. Her evidence was that she is undergoing paralegal training in order to increase her capacity and potential to earn more money. Her evidence was that she thought it was highly likely that she would be able to commence employment earning in the vicinity of $30-$35,000 per annum as a paralegal with a likelihood of earning more over time. Currently she has part-time employment while attending Sheridan College. She testified that while going to school it is reasonable to expect that she will be able to earn an income of approximately $10,000 through various part-time jobs. The applicant also indicated in her testimony that she wanted to attend law school at some point in the future. This unevaluated likelihood is not a factor to be taken into account at this time.
[13] The respondent has a history of steady employment during the marriage and was the principal breadwinner of the family. Between 2000 up to and including 2005, the respondent earned aggregate annual salary in the range of $76,000-$124,000. The respondent has been employed by General Electric since 2006 and continues to be employed by that corporation. The respondent earned employment income through a combination of base salary of $61,000 and overtime pay. As a field service representative for GE, the respondent, who was stationed in Oakville, Ontario, was required to travel throughout North America in order to attend at water filtration plants/stations where General Electric equipment and/or machinery is installed. Travel time which required him to go from his home base in Oakville to various sites in North America was considered working time for which he was paid at straight time. As a result of paid travel time, the respondent earned compensation over and above his base salary. In the three year period 2007 through to and including 2009, his total annual income was $86,895, $79,515, and $77,890 respectively. His average income over this three year period was $76,779.
[14] After the breakup of the marriage, the respondent was advised by his employer General Electric that a re-organization would result in his being required to attend in Alberta, Northern Ontario and Northern Québec to perform his on-site work and that he would no longer be required to travel throughout North America in order to perform his job duties and responsibilities. As noted above, General Electric Canada treated travel time as regular hours of work for purposes of compensation. It is logical to assume that travel restricted to Canada would have reduced the respondent’s travel related compensation but there is no evidence on this point. For reasons set out below, the respondent considered the corporate re-organization and the restriction on his work-related travel to be a significant change.
[15] At approximately the same time as the respondent was advised that his employment-related travel in North America outside Canada would be eliminated, he became aware of a job vacancy for a field service representative in Spain at virtually the same annual base salary, €40,000, together with benefits and an automobile provided by the company. The respondent applied for and was accepted in this position. The job for which he applied was identical to the job he performed for GE in North America with the same job duties and responsibilities and virtually the same base salary. The respondent was aware at the time he accepted the offer of employment from General Electric in Spain that the field service representative job in Spain would not generate straight time overtime payment for travel and that the General Electric Spain company policy is to compensate employees for overtime work by giving them time off work in lieu of overtime payment. In May of 2011, the respondent moved to Spain to begin his work there.
[16] In May of 2011, the value of the euro was Cdn. $1.41 and at the time he accepted his new position, €40,000 was the equivalent of $56,400 without considering personal use of the company automobile provided to him by General Electric. In my view, the annual personal benefit is reasonably valued at €1,728 as suggested by the applicant’s counsel. Annual compensation of €41,728 equates to approximately $59,000 Canadian in May 2011. In sum, the respondent accepted an identical job in Spain at virtually the same compensation level as he had enjoyed in Canada but without the opportunity to earn additional money for overtime pay. As noted above, in Spain, at General Electric, overtime worked by field service representatives is compensated by granting the employee time off in lieu of overtime worked. Therefore, while Mr. Domingues still works overtime and is compensated for it, the compensation for such overtime is given as paid time off rather than added to his base salary.
[17] The respondent has received a wage increase since he has been in Spain and his base salary is currently €40,728. The current value in Canadian dollars of the respondent's employment in Spain, based on the current exchange rate, increased by an amount reflecting the personal use of his company automobile is €42,496 or $56,775 Canadian. The current exchange rate is 1.336. The value of his compensation in Canadian dollars is slightly less now than it was in May of 2011 because of the fluctuation in the value of the euro.
[18] The respondent explained in his testimony why he decided to move to Spain. First, he said he was feeling depressed as a result of the breakdown of his marriage and the conflict resulting therefrom and wanted a change. He said he preferred the warmer climate of Spain to what was going to be restricted employment-related travel to northern Alberta, Northern Ontario and northern Québec. The respondent suffers from gout and takes medication for it and felt that his situation would be better in a warmer climate. The respondent is fluent in Spanish and Portuguese, as well as English, and therefore working in Spain where the working language is Spanish presented no difficulty to him. Finally, while he has two adult daughters and a sister in Canada, he has a brother and sister who live in France, both of whom have been very supportive of him and working in Spain gives him an opportunity to see more of them. His evidence is that he has seen his brother and sister while working there. When the respondent described himself as feeling depressed, he was attempting to describe how he felt and did not mean or suggest that he had been clinically diagnosed with depression. Similarly, there was no medical evidence indicating that the climate of Spain would help him deal with his gout but his view is that working in a warmer climate is better than working in a cold climate. If the respondent had continued working in Canada, his travel to the warmer places in North America was to be discontinued.
[19] The applicant testified that she has had to borrow money from her parents and that she is currently living rent free in a condominium owned by her father which is generating an obligation to repay rent to him when she is in a position to do so. She has obtained an OSAP loan in order to pay for her paralegal training and has other small debts through credit cards and a line of credit. The medical insurance which she has purchased in order to help offset the cost of medication is not as good a plan as she previously had and some of her medication will not be covered by such plan.
The Issues
Spousal Support
[20] The applicant asks for spousal support commencing in July, 2012 (the date of the partial final order) and thereafter for an indefinite period and should be based on the income earned by the respondent when he was employed by General Electric in Canada. As noted above, the respondent’s average annual earnings in 2007, 2008, in 2009 is $76,984. The applicant also takes the position that her returning to school is reasonable in the circumstances as it will likely provide an opportunity to earn more income after completion of her certification. As indicated above, she believes that she can start her employment and earn in the range of $30-$35,000 per year which earnings opportunity will increase after certification in February of 2014.
[21] The applicant asserts that when she is attending college, she should be able to earn $10,000 a year doing part-time work but due to the demands of her educational commitment, this is all she is capable of earning.
[22] In calculating the appropriate amount of spousal support, the applicant also asks for spousal support in an amount that takes into account the cost to her of purchasing medical insurance resulting from the termination of medical insurance coverage previously made available to her through the respondent’s employment with General Electric Canada.
[23] In a nutshell, the applicant takes the position that the move by the respondent to Spain was voluntary, that it resulted in a lower annual income, that the move is not reasonable and that any calculation of spousal support should be based on the income earned when he worked for General Electric Canada and not on his current income from General Electric Spain. The applicant asserts that the respondent’s decision to move to Spain was unreasonable in the circumstances, that he has intentionally reduced his annual earnings and therefore that he is intentionally under-employed.
[24] The respondent’s position is that in the circumstances his move was reasonable. Further, it is clear that his position is that he is not intentionally under-employed because he is doing exactly the same job for the same corporation at what is essentially the same base salary. It is also evident that because his work-related travel time is now compensable by being granted time off in lieu, that his effective rate for actual work performed has increased. Obviously, he has no control over the policy of the company with respect to compensation for overtime.
[25] The respondent is not in unqualified agreement that the applicant is entitled to any spousal support. While he said he was prepared to help out, he thought he should do so only after he has no further obligations to support his daughters. It seemed clear to the Court that the respondent felt he should determine what obligations he had to support his daughters and when they should terminate. However, the respondent stated that if the Court finds that the applicant is entitled to spousal support, then his position is that his actual income should inform the quantum of spousal support payable to the applicant after taking into account income properly attributed to the applicant. The respondent, who was self-represented, was unsophisticated with respect to making legal arguments. It is clear that the Court should consider whether the applicant’s decision to return to school is reasonable in the circumstances or whether she is intentionally under-employed.
Term Life Insurance
[26] The applicant also seeks an order compelling the respondent to name her as the beneficiary of term insurance made available to the respondent through his employment in Spain. The respondent testified that he believes that the term insurance provided by General Electric in Spain is in the amount of €60,000 and that currently his two daughters are named as beneficiaries of the term life insurance. The respondent has no objection to designating the applicant as sole beneficiary of the term life insurance policy made available through his employer in Spain so long as he has an obligation to pay spousal support to the applicant.
Analysis
[27] The applicant has established her entitlement to spousal support. Her marriage to the respondent was a long-term marriage of 25 years. For approximately 15 years she did not work and her principal role was as a caregiver to her two daughters. She has worked from 1990 to present on a full or part-time basis and has contributed to the family’s aggregate income. While she has shown her ability to earn as much as $35,000 per annum, this level of income has not been a pattern during the marriage. In the three years prior to separation she earned an average of $20,500 annually. The respondent was the major provider during the marriage. She has been disadvantaged as a result of the marriage break-up.
[28] The implications of the respondent’s move to Spain are clear from what has been outlined above. His aggregate annual earnings have been reduced as a result of the differing company policy with respect to payment for travel time. In addition, the benefits plan which he had available to him through his employment in Canada is no longer available to provide coverage to his spouse and children. The benefits plan now available to him through General Electric Spain only provides coverage to spouses/children who reside in Spain. As a result, the applicant has purchased her own insurance at a cost of approximately $2,400 per annum. During the marriage, the applicant suffered from, and continues to suffer from, fibromyalgia and other ailments and has regular and significant drug expenses. Although there was no medical evidence with respect to her medical condition, the respondent did not dispute that the applicant is required to purchase medication and that such medication is no longer covered by his general electric benefit plan because of the move to Spain.
[29] I am of the opinion that for the respondent to take up an employment opportunity in Spain was reasonable for the reasons given in his testimony. In addition, the respondent now performs the same job at the same base salary for a related employer. He receives compensation for overtime but in a different manner. His seniority with General Electric is maintained. The obligation to pay spousal support does not limit reasonable freedom of choice of the payor. In my opinion, the respondent’s move to Spain is not reasonably classified as intentional under-employment of the sort traditionally dealt with in the jurisprudence.
[30] Similarly, while it might be arguable that since the applicant has shown her ability to earn up to $35,000 per annum as an administrative assistant, this Court respects her right to choose further education for the reason stated by her, that is, that she believes over time she will be able to earn more income as a certified paralegal than as an administrative assistant. This is a worthwhile objective and is consistent with her freedom to choose a career in which she reasonably believes will augment her earning capacity. This educational choice is consistent with her obligation to achieve self-sufficiency.
[31] However, as noted above, the move to Spain has - through no fault of hers - cut her off from health benefits provided by General Electric Canada when her husband was employed in this jurisdiction. While this is not a reason to conclude that the move to Spain was unreasonable, it is a factor to be taken into account in determining quantum of spousal support given her dependence on medication and the limited means which she currently has available to her to replace such insurance.
[32] The applicant will have limited time available in which to work during the time when she is attending community college and that it is not unreasonable to impute an income to her of $10,000 during the time while she attends college, that is from July, 2012, to and including August, 2013. For purposes of calculating spousal support, I conclude, based on her evidence, that commencing September 1, 2013, she will be in a position to make an annual income of $35,000.
[33] For purposes of calculating retroactive spousal support, I am also prepared to take into account that the respondent paid, and will continue to pay, the equivalent of child support for Danielle, who is about to complete her first post-secondary degree from July 4, 2012 to May 30, 2013.
[34] Where the payor earns an income of $56,774 and the recipient earns $10,000, with child support for one child, the Spousal Support Guidelines indicate the following range: low-$915; mid-$1,094, and; high-$1,267. Where the payor earns an income of $56,774 and the recipient earns $10,000 with no child support, the Spousal Support Guidelines indicate the following range: low -$1,462; mid - $1,705, and; high $1,834. Where the payor earns an income of $56,774 and the recipient earns $35,000 with no child support, the Spousal Support Guidelines indicate the following range: low - $680; mid -$794, and; high - $858.
[35] I have determined that it is appropriate for the respondent to pay to the applicant, from July 4, 2012 to May 31, 2013, an amount based on him paying the equivalent of child support to Danielle. Danielle graduates in 2013 and after May of 2013 will be or should be self-sufficient. There is no evidence before the Court to conclude otherwise.
[36] In calculating the amount of spousal support, I have taken into account the fact that the recipient applicant is no longer covered by the respondent’s health insurance and has incurred additional expenditure of approximately $200 a month in order to have minimum health insurance available to her. In other words, I have selected a point in the range suggested by the Spousal Support Guidelines with this fact in mind.
[37] Therefore, from July 4, 2012 to May 31, 2013, that is, for a period of 11 months, the respondent shall pay to the applicant spousal support in the amount of $1,267 per month which is the high-end of the range for support payments for a payor who earns an income of $56,774 with child support for one child and where the recipient earns $10,000. If the respondent commences spousal support payments commencing May 1, 2013, the amount of retroactive support owed will be $1,267 per month for 10 months for the period from July 4, 2012 to May 1, 2013 for an aggregate retroactive spousal support obligation of $12,670. Both parties are in agreement that any retroactive amount awarded by this Court should be paid by way of periodic payments and not by way of a lump sum.
[38] From May 1, 2013 through to February 1, 2014, when the applicant expects to have completed her paralegal course at community college and be certified, and Stephanie and Danielle will be self-sufficient, the payor shall pay to the applicant recipient the amount of $1,834 per month. This high-end amount will serve to provide transitional spousal support to the applicant on the assumption that during the period from the completion of her academic courses to the time of certification she will be able to obtain suitable alternative employment which will generate $35,000 per annum commencing on February 1, 2014. It is also based on the assumption, as noted above, that the recipient spouse will be obligated to continue to purchase health insurance. I am satisfied that after February 1, 2014 the applicant, based on her education, skill, training and experience will be capable of obtaining employment either as a paralegal or as an administrative assistant and will be capable of earning $35,000 per annum. Furthermore, when the applicant obtains full-time employment, she may well be able to obtain health insurance through her employer and I am operating on that assumption. However, even if such health insurance is not available, she should by that time have achieved a significant enough increase in her earnings that the purchase of health insurance will not be arduous for her.
[39] Therefore, commencing February 1, 2014, the respondent shall pay to the applicant spousal support in the amount of $794 per month which is the mid-range spousal support amount suggested by the Spousal Support Guidelines. This monthly amount shall be continued on an indefinite basis subject to variation in case of material change in circumstances.
[40] While I have calculated spousal support in Canadian dollars, I have decided to express the respondent’s current and ongoing spousal support obligation in Euros. In my limited experience, expressing the quantum of spousal support in the foreign currency in which the payor is paid makes it easier to obtain enforcement of the orders of this Court outside Canada pursuant to the Interjurisdictional Support Orders Act, 2002. The respondent will be paying the same portion of his salary regardless of the fluctuation of the Euro against the Canadian dollar. Of course if the value of the Euro goes up against the Canadian dollar, then the recipient will benefit. If the value of the Euro goes down against the Canadian dollar, then the recipient will be adversely affected. In either case, the proportion of income being paid by the respondent will remain the same. The parties did not propose any formula to adjust amounts payable by virtue of the potential fluctuation in the value of the Euro against the Canadian dollar.
[41] There is agreement by the respondent that while he is required to pay spousal support, he will designate Sandra Carneval Dominguez as the sole beneficiary of term life insurance that is made available to him through his employment. Currently, his two daughters are named beneficiaries. Accordingly, an order shall go with a requirement by the respondent to make the details of such term life insurance available to the applicant together with proof that he has made the designation.
Conclusion
It is therefore ordered as follows:
Commencing May 1, 2013, and on the first of each and every month thereafter up to and including January 1, 2014, the respondent, Joao Carlos Domingues, shall pay spousal support to the applicant, Sandra Domingues, in an amount equivalent to $1,834 per month which, in Euros, amounts to €1372 per month.
Commencing February 1, 2014, and on the first of each and every month thereafter for an indefinite period, the respondent, Joao Carlos Domingues, shall pay spousal support to the applicant, Sandra Domingues, in an amount equivalent to $794 per month which, in Euros, amounts to €594 per month.
The respondent, Joao Carlos Domingues, shall pay to the applicant, Sandra Domingues, an aggregate retroactive spousal support in an amount equivalent to $12,670 which, in Euros, amounts to €9483. This aggregate amount of €9483 shall be paid by way of monthly periodic payments of €263 per month over a period of 36 months commencing May 1, 2013 and ending with the payment on April 1, 2016, in addition to the monthly spousal support payments ordered herein.
For as long as the respondent is required to pay spousal support, the respondent, Joao Carlos Domingues, shall designate Sandra Carneval Dominguez as the sole beneficiary of term life insurance made available to him through his employment. This designation of Sandra Carneval Dominguez as the sole beneficiary of the term life insurance currently in place through his employment in Spain shall be made by the respondent no later than June 1, 2013. The respondent shall advise the applicant by June 1, 2013 of the quantum of such term life insurance together with proof that he has made the designation of Sandra Carneval Dominguez as the sole beneficiary as ordered by this Court.
Commencing June 1, 2013, and by June 1st of each year thereafter, each party shall make disclosure to each other of their total income from all sources for the previous year, including the provision of income tax returns, T4’s and notices of assessment. It is understood that the respondent may not have T4’s and notices of assessment while working in Spain. He shall provide to the applicant equivalent documentation reasonably available to him - including income tax returns - that accurately disclose to the applicant his prior year's total income from all sources.
Costs
[42] Given the outcome, the applicant is entitled to her costs. There is no reason this case to depart from the general principle that the successful litigant is entitled to her costs. The applicant has been successful.
The applicant's counsel shall provide brief written submissions with respect to costs to the court by no later than May 1, 2013. A copy of such written submissions shall be provided by the applicant's counsel to the respondent by regular post or by email. The respondent will provide his brief written reply, if any, by June 1, 2013. The respondent may provide his response to the applicant costs submissions by regular post or by sending a copy by email to my assistant, Dale Willis at dale.willis1@ontario.ca.
MURRAY J.
Released: April 8, 2013
COURT FILE NO.: 34238/11
DATE: 2013-04-08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SANDRA DOMINGUES
Applicant
– and –
JOAO CARLOS DOMINGUES
Respondent
REASONS FOR JUDGMENT
MURRAY J.
Released: April 8, 2013