ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FC-11-2317
DATE: 20130913
BETWEEN:
Jeannette Wu
Applicant
– and –
Lo Wu
Respondent
Alexandre Martel and Francois Kabemba, for the Applicant
Cecil J. Lyon, for the Respondent
HEARD: September 4, 2013
Justice Patrick Smith
[1] There are two motions before the court. The Applicant (wife) seeks an order for interim spousal support, occupation rent and sale of the matrimonial home. The Respondent (husband’s) motion for outstanding disclosure was settled the day both motions were scheduled to be heard and Minutes of Settlement have been executed. An order shall issue as per the terms of the Minutes of Settlement, filed.
[2] The parties began living together in May 1983 and were married on March 15, 1992 separating on November 30, 2010.
[3] There are three children of the marriage, namely: Michael David Wu (17), Rachael Elizabeth Wu (16) and Kathryn Reebecca Wu, (12).
[4] The wife was a stay-at-home mother for most of the marriage. She returned to work after the children began attending school on a full-time basis. She has experienced difficulty finding employment and has re-trained in two separate fields in the past three years: first, as a personal support worker and then as a paralegal. She has unfortunately been unable to maintain employment and is not working at the present time.
[5] The husband works for the Ottawa-Carleton District School Board in the I.T. Department and earns approximately $60,000.00 per year.
[6] Despite separation having occurred in December 2010, to date, no interim orders of any nature have been made or applied for.
[7] This matter is on the ready list for trial for November of this year.
Occupation Rent
[8] The wife’s claim for occupation rent is for the sum of $1,837.00 per month and for a retroactive order to December 2010 for a total of $31,228.50.
[9] The sum requested is almost one-half of the husband’s pay.
[10] The wife voluntarily left the matrimonial home and there is some evidence to support the husband’s assertion that the children are spending over one-half of the time with him, living with him in the matrimonial home.
[11] David, the eldest child, has just entered his first year of university funded to a large degree by his father without any contribution from the wife.
[12] This claim is best left for the trial judge who will be in a much better position than I am position to balance all of the relevant factors: see Griffiths v. Zambosco (2001), 2001 24097 (ON CA), 54 O.R. (3d) 397 (Ont. C.A.).
[13] To make any order at this point in time on the eve of trial makes no sense. It has been almost three years since separation occurred. I do not know why this motion was not made much earlier. I understand that the wife is in dire financial straits however a full hearing will take place in November which is less than two months away.
Sale of the Matrimonial Home
[14] The above reasoning also applies to the wife’s requests that I order the sale of the matrimonial home and interim spousal support.
[15] The husband alleges that the home was purchased with a loan from his parents. The wife disputes this. Undoubtedly, this will be an issue for trial and involves question of credibility- something that only a trial judge can decide.
[16] The husband wishes to purchase the wife’s interest in the home and alleges that the wife will owe him an equalization payment and that he would be prejudiced by an order selling the home because a transfer of the wife’s interest may be the only way that the equalization payment owing to him can be satisfied.
[17] A sale of the home at this point in time on the eve of trial would greatly disrupt the children who have lives there all their lives and may not be warranted after a full hearing into all the issues.
Spousal Support
[18] With respect to the claim for interim spousal support, while the wife certainly demonstrates need ands entitlement, I am not persuaded that the husband has the ability to pay any level of support at this time.
[19] The wife maintains that she was diagnosed with fibromyalgia in 2003. The husband challenges this and suggests that there is no medical evidence filed to support this claim.
[20] Further, there are serious issues of financial disclosure and the parties are engaged in questioning but have not done so to date. Without more accurate financial information I am not prepared to make an order.
[21] The husband has been responsible for all of the expenses in maintaining the matrimonial home since December 2010. The wife has not paid any child support or contributed to any of the s. 7 expenses of the Family Law Act, R.S.O. 1990, c. F. 3, for the children including David’s tuition, books and fees.
[22] A determination of whether an order for spousal support should be made is also best left to the trial judge in November.
Conclusion
[23] The wife’s motion is dismissed with costs left to the judge hearing the trial of this matter.
Patrick Smith J.
Released: September 13, 2013
COURT FILE NO.: FC-11-2317
DATE: 20130913
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jeannette Wu
Applicant
– and –
Lo Wu
Respondent
REASONS FOR JUDGMENT
Justice Patrick Smith
Released: September 13, 2013