ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 45992-11
DATE: 2013-06-26
BETWEEN:
Katherine Meidell
Applicant
– and –
Christopher Meidell
Respondent
Self-represented Applicant
Tania Harper, for the Respondent
HEARD: June 17, 18, 19, 21 and 24, 2013
THE HONOURABLE MR. JUSTICE P.B. HAMBLY
REASONS FOR JUDGMENT
Introduction
[1] Katherine Meidell (the wife or Mrs. Meidell) seeks from Christopher Meidell (the husband or Mr. Meidell) a divorce and spousal support. The husband concedes an obligation to pay his wife spousal support. The issues are the amount and the duration of his obligation. ` At trial, the wife was self-represented. The husband was represented by Ms. Harper.
The Facts
[2] The wife is 46. The husband is 44. They commenced living together in April 2000. They were married on September 2, 2000. There are no children of the marriage. The parties separated on July 12, 2011. Their relationship lasted 11 years.
[3] This is the first marriage for the wife. It is the second marriage for the husband. He has two children from his first marriage – Ashra, who is 17 and Karina, who is 15. They are living with him one-half the time and one-half the time with their mother and her partner. The husband does not pay child support to their mother. He does acknowledge a responsibility to contribute towards their post-secondary education. Ashra will commence University in the fall. He estimates his obligation to contribute to Ashra’s post-secondary education expenses to be $6,000. He is living with a woman, who is not contributing to the household income, for reasons that were not adequately explained.
[4] The husband has a certificate from Humber College in Computer Engineering Technology, which he obtained in June 1993. He has always been steadily employed. He worked as a product manager with Agfa Health Care from March 1993 until August 2005; a product manager with NCR from October 2005 until May 2007 and Ontario sales manager for Wolters Kluwer from June 2007 until December 2009. He long had an interest in video production. He had a company for this purpose called Modevation, which he incorporated in 2003. From about January 2010 until May 2012, he worked full-time trying to develop Modevation. Unfortunately, the company failed. He made an assignment in bankruptcy in January 2012. He was discharged in January 2013. He worked in video production for a company called Memory Tree from May 2012 to January 2013. Since January 2013 he has been product manager at Unitron Hearing.
[5] His income has been as follows:
2007 – $106,115
2008 – $109,570
2009 – $125,602
2010 – $66,738
2011 – $21,658
2012 – $32,777
[6] At Unitron he is paid a base salary of $77,000 per year. He has a potential to earn a further $8,555 for a total of $85,555. He concedes an annual income of $82,000 for the purpose of calculating his spousal support obligations. This was not challenged by Ms. Meidell.
[7] In 1990, Ms. Meidell graduated from the University of Toronto with a Bachelor of Arts degree with a French language major. She also has an Early Childhood Education Diploma from Sheridan College, which she obtained in 1998 and a Business Administration Diploma with a marketing specialty, which she obtained from Trios College in 2011. She also has been steadily employed, when she has not been attending school. She worked as a marketing liaison/copy editor with Thomson Reuters from 1990 to 1995; a sales administrator with Lexis-Nexis from 1995 to 1996; a preschool director from 2000 to 2006; the executive director of Keltoi Publishing from 2000 to 2012; marketing director and office manager with Humanist Canada from March 2007 to March 2010; with her husband in Modevation until her operation in June 2011; an instructor at Trios College from March 2012 to October 2012 and most recently a corporate journalist and editor with Union Strategies from November 2012 to May 2013. She has been a wedding officiate since 2003. This generates a modest amount of income.
[8] The wife's income throughout the marriage has been substantially less than that of the husband. Her income has been as follows:
2006 – $9,890
2007 – $28,722
2008 – $15,993
2009 – $0
2010 – $9,636
2011 – $10,893
2012 – $17,458
[9] Ms. Meidell's employment with Union Strategies ended on May 24th, 2013 when her contract ended and also as a result of restructuring in the company. She is currently unemployed. Her employment with Union Strategies was a contract position. Hence, she is not entitled to Employment Insurance. Under the contract, she was paid $500 per week for the first six weeks, $600 per week for the next seven weeks and $700 per week for the balance of the contract. This equates to an annual wage of $36,400. At present, she has no income and no savings. She is living in an apartment in Mississauga. She has no money to pay the rent. She will be required to vacate the apartment on June 30th. Her financial statement, sworn June 4, 2013, shows debts of $11,360.13, not including what she may owe to her parents. She filed a letter from Honda Financial Services dated June 20, 2012, which gave her notice of an amount owing to it of $2,072.63 being the deficiency in a car which it repossessed. It is not included in the list of debts in her financial statement. This results in her current debts being $13,432. Her debts are likely something greater than this as a result of the accumulation of interest at a substantial rate. She also does not show in her financial statement an amount owing to her former lawyer, which according to an e-mail from the lawyer’s secretary is $13,428.
The Separation
[10] The wife had a hysterectomy on June 7, 2011. It was a very serious operation, which she described as "high risk surgery". This is confirmed in the report of Dr. R. Guzar dated June 14, 2013. Dr.Guzar is the wife's family doctor. She states in her report that the surgeon who performed the surgery commented in a follow-up report on July 14th that she was "overwhelmingly depressed". Undoubtedly contributing to her depression was the news that she received from the husband on July 12, 2011 that he wanted a separation. The wife feels betrayed by the husband. It should be noted that he was going through his own crisis at this time in trying to make Modevation profitable. The wife is entitled to support from the date of separation. Rather than making a retroactive support order, which would create a lump sum that the husband would be incapable of paying, I will make a support order to take effect immediately after the judgment, consistent with the Spousal Support Advisory Guidelines (SSAG) and the wife's current needs.
The Payment From the Wife's Parents
[11] The wife's mother, Angela Kabouris and her step-father, Peter Penz advanced the parties $10,000 in about July 2001, as a down payment on their matrimonial home in Waterloo. The matrimonial home was sold and the net proceeds distributed to the parties. There is no claim for equalization of that family property. Mrs. Kabouris gave evidence. According to her, she and her husband have advanced a further $14,050 to the parties, for a total of $24,050, in addition to the initial advance of $10,000. She stated that $10,150 had been paid back leaving $13,900 owing. Mrs. Kabouris testified that she expected to be repaid. Mr. Meidell stated that Mrs. Kabouris told him in 2009 that she and her husband would forgive the loan. He states that she said "that is what families are for". She denies saying this and denies forgiving the loan. The wife states that she regards the money as owing to her parents. Neither party has a present ability to repay the money. If it was a loan, Mr. Meidell's obligation to repay it was discharged with his bankruptcy. Only Mrs. Meidell would have an obligation to repay it. Mrs. Kabouris is legally blind and in failing health. She stated that her husband was in failing health as well. I doubt if Mrs. Meidell would ever abandon her mother. I also doubt that she will ever repay the money. In any event, her mother is not pressing her for it. I do not regard this money as something which should affect Mr. Meidell's obligation to pay spousal support.
Spousal Support and SSAG’s
[12] The husband paid no spousal support after the separation. At a settlement conference on January 8, 2013, Justice Campbell made an order on consent that he pay $150 per month. Justice Campbell also fixed costs against him in the amount of $5,000, inclusive of HST and disbursements to be enforced by the FRO as spousal support.
[13] In Fisher v. Fisher, 2008 ONCA 11, [2008] O.J. No. 38 the Court of Appeal in the Judgment of Justice Lang stated the following:
103 In my view, when counsel fully address the Guidelines in argument, and a trial judge decides to award a quantum of support outside the suggested range, appellate review will be assisted by the inclusion of reasons explaining why the Guidelines do not provide an appropriate result. This is no different than a trial court distinguishing a significant authority relied upon by a party.
[14] Ms. Harper provided the court with SSAG calculations with the husband having an income of $82,000, having one child living with him (he has two children living with him half-time) and the obligation to pay special expenses of $6,000. She imputed income to the wife of $20,000, $26,000 and $30,000. This yielded recommended monthly support results as follows:
Wife’s imputed income of $20,000
Low – $505 Mid – $589 High – $674
Wife’s imputed income of $26,000
Low – $423 Mid – $493 High – $564
Wife’s imputed income of $35,000
Low – $299 Mid – $349 High – $389
The program recommends a duration of 5.5 to 11 years.
[15] The most that the wife has ever earned in a year is $28,772. She was earning at the rate of $36,400 when her contract terminated with Union Strategies in May of this year. She will find it increasingly difficult at the age of 46 to obtain long term employment. I accept that she has a circulatory problem that makes it impossible for her to be on her feet for long periods of time. This will eliminate potential jobs that she would otherwise be able to do. In my view, a realistic amount of income to impute to her is $26,000. The middle range of the options under the SSAG’s is reasonable. She does need some immediate assistance to meet basic living expenses. One of the objectives of a support order set out in the Divorce Act s. 15.2 (6) (c) is to “relieve any economic hardship of the spouses from the breakdown of the marriage”. The husband is living with another woman, who is not contributing to the household expenses. According to his financial statement, while not wealthy, he is living in rented premises for which he pays $1,120 per month.
Result
[16] There will be judgment as follows:
A divorce order shall issue.
The husband shall pay to the wife spousal support in the amount of $2,000 on July 1, 2013, $1,500 on August 1, 2013 and thereafter on the first day of each month in the amount of $493 for a period of eight years until July 1, 2021, when spousal support shall terminate.
The husband shall obtain a life insurance policy in the amount of $40,000 and name the wife as the irrevocable beneficiary until July 1, 2021, provide to the wife proof that he has done so within 30 days and provide to the wife on or before July 1st of each year proof that the policy is in good standing.
Each party shall provide to the other by May 15 of each year a copy of his/her income tax return for the previous year.
[17] The wife may make submissions as to costs within 10 days and the husband may have 10 days to respond.
Justice P.B. Hambly
Released: June 26, 2013
COURT FILE NO.: 45992-11
DATE: 2013-06-26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Katherine Meidell
- and -
Christopher Meidell
REASONS FOR JUDGMENT
Mr. Justice P.B. Hambly
Released: June 26, 2013