ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-11-4969

DATE: 2013-03-27

B E T W E E N:

Jill Laurie-Anne Withers

Sarah Trach, for the Applicant

Applicant

• and -

John Manley Withers

Mark Van Walleghem, for the Respondent

Respondent

HEARD: October 23, 2012,
at Kenora, Ontario

Platana J.

Reasons For Judgment

[1] The Applicant seeks a divorce, spousal support under the Divorce Act and the Family Law Act, the indexing of spousal support, the equalization of net family property, and the sale of the family home.

[2] At the commencement of this trial, counsel advised me that, subject to a determination of the value of the matrimonial home, and subject to a determination of whether the value of the wife’s survivor benefit in the husband’s pension should be included as an asset by the wife, net family property had been agreed upon. A Net Family Property statement was filed as Exhibit #1. Further, there was an issue as to whether the husband’s pension should be divided at source and if so, how much the Applicant should receive. Lastly, there was an issue as to occupational rent. At the time of trial no Statement of Family Law Value, which is the value of the pension that relates to the period of the spousal relationship (married or common-law) for a Retired Member and the spouse/former spouse of the Retired member, was presented. That was provided, on consent, in subsequent submissions.

[3] Counsel advised there was no dispute with respect to the divorce. Exhibit #2 is an affidavit in support of that relief. A divorce shall issue.

Background of the Marriage

[4] The Applicant is 54 years of age and the Respondent 72. The parties were married July 26, 1986. They separated on June 5, 2010.

The Applicant

[5] At the time of the marriage, the Applicant worked at the Royal Bank of Canada in Dryden and had done so full time for 7 years. That employment ended when the Respondent was transferred to Sioux Lookout in 1991. The Applicant then took part time work until the Respondent was transferred back to Dryden. On the transfer back, the Applicant began working for Avon as a District Sales Manager. She had no regular hours of work but rather had a sales quota to meet. She was paid a weekly salary and bonuses. She was engaged in this employment for approximately 15 years and worked out of the home. Avon was ultimately reorganized to a selling system which she did not agree with. Over her 15 years of employment with Avon, her average yearly income was approximately $39,800.00. Her evidence was that she began to experience difficulties when working at home with Avon because the Respondent monitored everything that she did. The number of phone calls and computer work she was required to undergo caused friction between the parties. He was supportive of her leaving Avon.

[6] In September 2007, she went to work part time with Dryden Literacy and in June 2009, she began work as a paralegal. The financial information filed shows that in 2009 she had income of $21,958.00; in 2010, $32,334.00; in 2011, $39,975.00 (including $15,000.00 withdrawn from an RRSP). She acknowledged that in 2010 she did some bookkeeping for an individual for which she received approximately $500.00-$600.00 and did not receive a T4. All 2011 income was reported. In cross-examination, the Applicant acknowledged that while she was at Avon she basically earned more than the Respondent.

[7] At the time she left the matrimonial home she acknowledges that there was no discussion and she simply left the Respondent a note that she was leaving. Her evidence is that she was afraid to tell him because he always intimidated her and demeaned her. She made no attempt to return home, however, and she stated there was difficulty in obtaining personal items after she left. Upon leaving the matrimonial home, she initially obtained rental accommodation at $540.00 per month.

[8] At the time of the separation she worked at Sunset Paralegal until that job was terminated in May, 2011. Her evidence is that subsequent to working at Sunset Paralegal she searched for a number of jobs through the newspaper, radio, and filed several applications. In 2011, she did not earn adequate income and was required to begin withdrawing her RRSPs. Exhibit #13, #14, #15 and #16, show that from May through December of 2011 she withdrew $15,000.00.

[9] She moved to Winnipeg in August, 2011, and has been looking for employment. She has done job searches regularly through Manitoba Employment, and job banks. She took an interview course, and has had interviews approximately once per month since beginning to look for employment as a secretary. She did not apply to any law firms in Winnipeg. She did indicate that she has upgraded her skills on PowerPoint, Excel, and on learning new computer programs. In essence, she indicated that with respect to the interviews she did have that “they don’t want people my age.” She has thought about retraining but has focused her efforts on getting employment. She agrees that she has always worked up to the point of time of losing her job as a paralegal. When she initially moved to Winnipeg she resided with her sister in-law and paid no rent. In November of 2011, she received an inheritance from her mother. Using that inheritance and a mortgage, she acquired a condominium in Winnipeg.

[10] In November of 2011, the Applicant became ill with a viral infection. While she was previously covered under the Respondent’s medical benefits, he has terminated those and she currently has no medical benefits. When he terminated her benefits at the time of separation, he gave her no notice.

[11] For 2012 her only income is her RRSPs. She withdrew $5000.00 on March 5, 2012 and has had no other employment. She does acknowledge that her health is overall good and there is nothing to prevent her from working.

[12] The Applicant advised through counsel that she was aware of survivor benefits in the Respondent’s pension but that she was prepared to wave her entitlement to any survivor benefits.

[13] The Applicant reviewed her Financial Statement as contained in the Trial Record. Her evidence is that her income is as stated in the amount of $2,562.24 per month, or $30,746.88 per year. She shows expenses of $3,866.67 monthly, for a deficit of $1,304.53. Her mortgage is currently $1,100.00 per month; taxes $200.00; condominium fees $239.00; utilities $50.00-$60.00; cell phone $80.00; cable and television $106.00; household expenses now $560.00 as she no longer has $100.00 of meals outside the home; transportation $1,022.88 per month; health expenses $191.00; personal expenses $170.00 ($200.00 per month for entertainment/recreation and gifts having been deleted). In total, her current debts are approximately $40,000.00 on a line of credit in which she pays interest of $65.00 per week. She has credit card debt of approximately $30,000.00, which she uses for daily living expenses, and she pays interest of $100.00 per month.

[14] With reference to Exhibit #1, being the agreed upon Net Family Property statement, she states that she currently has a minimum amount in savings. She has no inheritance from her mother left, and has approximately $125,000.00 left in RRSPs.

The Respondent

[15] The Respondent’s evidence indicates that he thought something was going on in the relationship prior to her leaving but that he was caught by surprise when he found the note from her saying she was leaving. He was retired at the time of separation and spent much time with her on her Avon work.

[16] He has experienced some health difficulties in that he has a weak valve in his heart for which he takes one pill a day. He says that his health issue does not affect his life.

[17] His evidence is that the home was built 17 years ago. He states that he built it after clearing the land and doing the plan and that he has maintained it since. His preference is to maintain the residence for himself.

[18] With respect to his pension, his evidence is that there was never any discussion between the parties with respect to his pension benefit, but that it was always assumed that the survivors benefit would go to her. He currently has pension income for which he receives $2,040.00 per month and also receives old age security and Canada pension plan.

[19] Historically, his tax information shows that in 2009 he had income of $43,328.00; in 2010 $46,841.00; and in 2011 $47,480.00. In reviewing his statement of income and expenses as filed in the trial record, he determines his total income to be $3,673.04 per month and expenses of $4,085.79, for a deficit of $412.75. He testifies that he cannot keep up with his expenses and as a result has been required to dip into savings. In particular, he states that the oil heating in the residence costs approximately $400.00 per month. His expenses include $300.00 per month for alcohol/tobacco, $150.00 for gifts, and $200.00 for vacation.

[20] He acknowledges that he has medical and dental benefits and that a deduction is made from his pension income for that. He further acknowledges that the Applicant was previously covered under his benefit plan but that he took her off the plan after she left.

[21] In cross-examination, Mr. Withers acknowledged that initially he prevented the Applicant from going on to the property in order to let her retrieve any personal possessions. He denied that he had ever been made aware that there was a claim that the residence be sold. However, he acknowledged ultimately in cross-examination that his original response to the claims under the Divorce Act references his disagreement for the sale of the home.

[22] With respect to his current financial situation, he testifies that his debt is increasing but does acknowledge that his financial statement is accurate. In Part 4(a) dealing with “debts”, his only debt is for a vehicle and that debt has now decreased from $21,858.69 to $15,537.10.

[23] He further acknowledges that in Part 4(g) of Net Family Property Statement, there is one bank account which is missing which contains an amount of approximately $2,000.00. That account has been cashed in since separation.

The Matrimonial Home Appraisals

[24] Mr. Barry Lynch was called by the Applicant to give testimony with respect to the valuation of the matrimonial home. He is a Real Estate Broker, although not a certified appraiser. He assessed the property in the spring and summer of 2011, and subsequently inspected it again in the fall. In preparing his appraisal at Exhibit 5, his evidence is that he used three comparable sales. He indicates that those which he used were on the same lake, of a similar age, and size. He then adjusted by either increasing or decreasing values in relation to the subject property. His appraisal concludes that a reasonable market value for the subject property as at November 2011 is $224,500.00. He further indicates that the rental value for such property was between, $1,500.00-$2,000.00 per month.

[25] In cross-examination, he agreed that appraisals were a small part of his business and he recognized he was under pressure from clients to maximize values.

[26] Mr. Don Austin was called as a witness by the Respondent. Mr. Austin is a Real Estate Broker and a Certified Residential Appraiser and has been so for some fifteen years. He testified that he has previously done approximately 200-300 appraisals per year and now does some 100. He prepared Exhibit 6, a report as to the valuation of the property dated June 22, 2010. His evidence is that he used three comparable sales, one on the same on the same road and two others which were somewhat distant. He used appropriate appraisal factors of age, location, condition, and features, and testified that those were the only comparable properties available at the time. His opinion is that, using these three, he estimated the value of the residence at valuation date as $185,000.00.

[27] He was cross-examined with respect to a listing on Rowat Road which sold for $260,000.00. His evidence is that was a significant distance from the subject property, and while it was similar in some ways, the main factor was location. That property was on a different lake and was some 2 ½ acres in size as opposed to .7 acres for the subject property. He further testified that the Rowat Road property had two garages, a fireplace, and a heated garage. His evidence was that, even using the Rowat Road comparable, his opinion of the value of the property does not change.

(Decision continues exactly as in the source text.)

Mr. Justice T. A. Platana

Released: March 27, 2013