COURT FILE NO.: 2067/11

DATE: 2013-10-15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LINDA SUZANNE O’HALLORAN

Applicant

– and –

KERRY DEAN O’HALLORAN

Respondent

Self-Represented

John Paul Paciocco, Counsel for the Respondent

HEARD: September 23, 24, 25 & 26, 2013

varpio, j.

REASONS FOR JUDGMENT

INTRODUCTION

[1] Kerry and Linda O’Halloran had a long-term marriage and have since separated. They came to court to resolve two major issues: the effect of Mr. O’Halloran’s petition into bankruptcy upon any Net Family Property (“NFP”) equalization payment and the fixing of spousal support. As will be seen below, Mr. O’Halloran’s bankruptcy has rendered this proceeding moot with respect to any equalization payment. Spousal support is fixed at $3,500 per month until May 1, 2014 and $3,119 per month thereafter.

FACTS

[2] Mr. and Mrs. O’Halloran were married in 1988 and separated in 2010 after 22 years of marriage. Mr. O’Halloran is 50 years old as is Mrs. O’Halloran. There are no children of the marriage although Mrs. O’Halloran has a son from a previous relationship who is now self-sufficient.

[3] During the marriage, the parties lived in a variety of locations across Northern Ontario including Timmins, Marathon and the Sault Ste. Marie area. During much of that time, Mr. O’Halloran worked in the mining industry. He has now worked with Barrick Mines for 26 years. It appears that Mr. O’Halloran earned good wages during the course of his employment and has recently earned as much as $155,000 annually. Two years ago, he took a job as superintendent that pays $113,000 per annum. Mr. O’Halloran indicates that he took the drop in pay in order to extricate himself from underground working conditions.

[4] Mrs. O’Halloran’s work history is less consistent. She worked a variety of low-paying jobs during the course of the marriage including driving taxi, waitressing and operating a pet store. The nature of this work was somewhat sporadic as she would work for a period of time (be it weeks, months or years) and then cease working at a particular job. It should be remembered that Mrs. O’Halloran was taking care of a small child for at least part of this time. Mrs. O’Halloran appears to have acquired the skill set one would expect of someone with such a work history.

[5] In the summer of 1998, the O’Hallorans purchased a house in Searchmont, Ontario, near Sault Ste. Marie, so that they could be closer to Mrs. O’Halloran’s mother. In approximately 2001, the O’Hallorans purchased the Searchmont General store which was the only store in the area. The store contained a postal outlet, a coffee shop, an LCBO outlet and a general store. The O’Hallorans both worked at the store even though they had employees. Mr. O’Halloran worked a 4-day on, 4-day off shift at Barrick Mines. He traveled to the mines for his “days on” and worked at the store on his “days off”. Mrs. O’Halloran worked at the store during Mr. O’Halloran’s “days on” at the mine and had four days off when her husband returned to Searchmont. She indicated that she refused to work more because she felt Mr. O’Halloran should work his fair share. During the course of owning the store, the O’Hallorans terminated their employees as a cost savings measure although it is unclear from the evidence exactly when that termination took place. Nonetheless, for some period of time, it is clear that the store was always in the care of one of the O’Hallorans. It is also accepted that, as a result of two jobs, Mr. O’Halloran was working seven days a week.

[6] On the night of October 31/November 1, 2009, the store burned down. Insurance proceeds were ultimately collected by the O’Hallorans but the couple did not rebuild the store.

[7] In or around 2010, Mrs. O’Halloran discovered that Mr. O’Halloran was having an affair. The details of Mr. O’Halloran’s infidelity are relevant to this case only in so far as the affair caused Mrs. O’Halloran to get HIV and other STD testing, which she found to be very stressful. The instant court proceeding was commenced in early 2011.

[8] On February 3, 2012, Mr. O’Halloran declared bankruptcy. I have been advised by Mr. O’Halloran and his counsel that he will be discharged in November of 2013. Mrs. O’Halloran admits that she did not seek leave of Mr. O’Halloran’s trustee to pursue any claim in the instant case. Mr. O’Halloran has indicated to the Court that he undertakes to cooperate with the trustee and others to ensure that all documents get signed in a timely manner such that Mrs. O’Halloran can sort out her share of the assets in question.

[9] Mrs. O’Halloran, for her part, has attempted to ensure that the assets purchased by the parties during the marriage continue to be maintained. For example, the parties purchased a house in Marathon that is currently being rented out. Post separation, Mrs. O’Halloran has had to ensure that a significant amount of black mould was removed from the house. Equally, Mrs. O’Halloran has spent a considerable amount of time sorting out bills and she has had to borrow several thousand dollars in that pursuit. Nonetheless, the record shows that Mrs. O’Halloran appears to have some assets at her disposal. In fact, Mrs. O’Halloran has possession of older “classic” cars that she has not had valued despite a previous Court Order mandating same.

[10] Mrs. O’Halloran’s health appears to have suffered since the breakup of the marriage. Although she did not furnish medical evidence supporting this contention, Mrs. O’Halloran advises that her doctor is of the opinion that she cannot return to work at this time. Mrs. O’Halloran showed the Court several prescriptions for stress-related conditions as well as other medications. Mrs. O’Halloran was unable to proceed on the second day of trial as a result of spending the night in hospital with chest pains. She also advises that she requires surgery on her elbows and knees and that she cannot work for at least three months following her operations. One such operation will take place at the end of the month. She indicated in cross-examination that her stress was related to, amongst other things, the upkeep on the properties (which was exacerbated by her husband’s bankruptcy), financial concerns, the breakup proper, and testifying in an upcoming – and unrelated – court case.

[11] Mr. O’Halloran has since taken up residence with a woman that works at Barrick Mines. His new partner earns approximately $80,000 per annum. Mr. O’Halloran lives at her residence in Marathon. While Mr. O’Halloran cannot borrow money as a result of his bankruptcy, it appears that his new partner will borrow money on his behalf provided he repays her debt.

[12] Mrs. O’Halloran testified that she does not live particularly well and that she requires money so as to ensure that she maintains the same lifestyle she enjoyed while living with Mr. O’Halloran. Mrs. O’Halloran’s testimony shows that her previous lifestyle appeared to involve a considerable amount of time spent at the casino or bingo.

[13] After this action was commenced, Mr. O’Halloran entered into a peace bond with respect to charges where Mrs. O’Halloran was the complainant. Further, on a date when Mr. O’Halloran was in Searchmont visiting people, Mrs. O’Halloran states that her deceased brother’s ashes were taken from the Searchmont residence along with Christmas gifts intended for her son. Mrs. O’Halloran alleges that Mr. O’Halloran was the last known person in the residence and, as a result, she is of the belief that Mr. O’Halloran took the ashes and gifts for his own mean-spirited purposes.

ISSUES

1. Is any NFP equalization payment owing in this case?

2. What quantum of spousal support is owed by Mr. O’Halloran to Mrs. O’Halloran?

3. What obligations does Mr. O’Halloran have to put Mrs. O’Halloran on medical and/or life insurance benefits?

4. What Orders ought I make regarding the lost ashes and Christmas gifts?

ANALYSIS

1. NFP Equalization Payment

[14] At the start of trial, counsel for Mr. O’Halloran brought a motion for an Order staying or dismissing Mrs. O’Halloran’s claim for an NFP equalization payment and for any claim to Mr. O’Halloran’s pension. Counsel suggested that he filed said motion in order to spare the added expense of proving the value of assets at trial. He relied upon the Bankruptcy and Insolvency Act, R.S.C., c, B-5 which states:

Property of bankrupt

67. (1) The property of a bankrupt divisible among his creditors shall not comprise

(a) property held by the bankrupt in trust for any other person;

(b) any property that as against the bankrupt is exempt from execution or seizure under any laws applicable in the province within which the property is situated and within which the bankrupt resides;

Stay of Proceedings – bankruptcies

69.3 (1) Subject to subsections (1.1) and (2) and section s 69.4 and 69.5, on the bankruptcy of any debtor, no creditor has any remedy against the debtor or the debtor’s property, or shall commence or continue any action, execution or other proceedings, for the recovery of a claim provable in bankruptcy.

Court may declare that stays, etc., cease

69.4 A creditor who is affected by the operation of sections 69 to 69.31 or any other person affected by the operation of section 69.31 may apply to the court for a declaration that those sections no longer operate in respect of that creditor or person, and the court may make such a declaration, subject to any qualifications that the court considers proper, if it is satisfied

(a) that the creditor or person is likely to be materially prejudiced by the continued operation of those sections; or

(b) that it is equitable on other grounds to make such a declaration.

Claims provable

121. (1) All debts and liabilities, present or future, to which the bankrupt is subject on the day on which the bankrupt becomes bankrupt or to which the bankrupt may become subject before the bankrupt’s discharge by reason of any obligation incurred before the day on which the bankrupt becomes bankrupt shall be deemed to be claims provable in proceedings under this Act.

Debts not released by order of discharge

178. (1) An order of discharge does not release the bankrupt from

(b) any debt or liability for alimony or alimentary pension;

(c) any debt or liability arising under a judicial decision establishing affiliation or respecting support or maintenance, or under an agreement for maintenance and support of a spouse, former spouse, former common-law partner or child living apart from the bankrupt;

[15] The Ontario Pensions Act, R.S.O. 1990, c. P.8 states that:

Exemption from execution, seizure or attachment

66. (1) Money payable under a pension plan is exempt from execution, seizure or attachment. R.S.O. 1990, c. P.8, s. 66 (1).

[16] Counsel provided the Court with a copy of Schreyer v. Schreyer 2011 SCC 35, [2011] S.C.J. No. 35. In Schreyer, a payee spouse was seeking an NFP Equalization Payment. Post separation but prior to trial, the payor spouse filed for bankruptcy and was discharged. Among his assets, the payor spouse had farm property which was excluded property as per the Bankruptcy and Insolvency Act. The payee spouse did not receive permission from the bankruptcy court to lift the stay. In deciding that the payee spouse could not receive judgment for any portion of the farm, the Supreme Court found:

20 As a consequence, the interpretation of the BIA requires the acceptance of the principle that every claim is swept into the bankruptcy and that the bankrupt is released from all of them upon being discharged unless the law sets out a clear exclusion or exemption. As I will explain below in greater detail, the appellant's equalization claim was provable in the respondent's bankruptcy. In light of the provisions of the BIA, it is therefore difficult, subject to one minor reservation concerning the terminology used, to find fault with the Court of Appeal's holding that the equalization claim had been "extinguished" by the respondent's discharge. That holding appears to be faithful both to the words of the FPA and to the provisions of the BIA. In this respect, given that Ontario is also an equalization province, it is worth mentioning that the Ontario Court of Appeal recently espoused this reasoning in Thibodeau v. Thibodeau, 2011 ONCA 110, 104 O.R. (3d) 161. I agree with the following comments by Blair J.A.:

Separating spouses are not entitled to receive a division of property. Rather, they are entitled (generally speaking) to receive one-half of the value of the property accumulated during the marriage. An equalization payment is the chosen legislative default position. On the bankruptcy side, unsecured creditors are to be treated equally and the bankrupt's assets to be distributed amongst them equally subject to the scheme provided in s. 136 of the BIA. Parliament has not accorded any preferred or secured position to a claim for an equalization payment. While it has recently chosen to amend the BIA to give certain debts or liabilities arising in relation to claims for support and/or alimony a preferred status, Parliament has made no such provision for equalization claims in relation to family property. [Underlining added; para. 37.]

21 The only reservation I have with the decision of the Court of Appeal in the case at bar relates to its numerous statements that the operation of s. 178(2) BIA has the effect of "extinguishing" the equalization claim. With respect, this provision does not purport to extinguish claims that are provable in bankruptcy pursuant to s. 121 BIA, but "releases" the debtor from such claims: see, on this point, Re Kryspin (1983), 1983 CanLII 1703 (ON SC), 40 O.R. (2d) 424 (Ont. H.C.), at pp. 438-39; and Ross, Re (2003), 2003 CanLII 64260 (ON SC), 50 C.B.R. (4th) 274, at para. 15. As is clear from the words of s. 178(2) BIA, the discharge operates to release the bankrupt from all claims provable in bankruptcy. For creditors, the discharge means that they "cease to be able to enforce claims against the bankrupt that are provable in bankruptcy" (L. W. Houlden, G. B. Morawetz and J. Sarra, Bankruptcy and Insolvency Law of Canada (4th ed. (loose-leaf)) vol. 3, at p. 6-283).

25 I do not doubt that an outcome like the one [Mr. Schreyer retained the farm post-bankruptcy and Mrs. Schreyer received nothing via equalization payment] in this appeal looks unfair, given that the appellant's equalization claim was based primarily on the value of an asset -- the farm property -- which was exempt from bankruptcy and therefore not accessible to other creditors. None of the policies underlying the BIA require that the appellant emerge from the marriage with no substantial assets. Parliament could amend the BIA in respect of the effect of a bankrupt's discharge on equalization claims and exempt assets. But the absence of such an amendment makes the outcome of this case unavoidable. The only way Mrs. Schreyer could have avoided it would have been to obtain an order from the bankruptcy court lifting the stay of proceedings imposed by operation of s. 69.3 BIA so that she could seek a proprietary remedy under s. 17 FPA. As will be discussed below, however, the circumstances were such that Mrs. Schreyer did not pursue these recourses.

E. What is a Provable Claim?

26 Section 121 BIA contains a broad definition of a provable claim, which includes all debts and liabilities that exist at the time of the bankruptcy or that arise out of obligations incurred before the day the debtor went into bankruptcy. Thus, s. 121 provides that "[a]ll debts and liabilities, present or future, to which the bankrupt is subject on the day on which the bankrupt becomes bankrupt or to which the bankrupt may become subject before the bankrupt's discharge by reason of any obligation incurred before the day on which the bankrupt becomes bankrupt" are deemed to be provable claiMrs. According to s. 121(2), the trustee must apply s. 135 BIA to determine whether contingent or unliquidated claims are provable. If the debt exists and can be liquidated, if the underlying obligation exists as of the date of bankruptcy and if no exemption applies, the claim will be deemed to be provable.

27 The date of the bankruptcy is of critical importance. If the equalization claim was liquidated before the bankruptcy, there is no doubt that the claim is provable. If it was still unliquidated as of the date of the bankruptcy, the issue becomes whether it remained too uncertain to allow the trustee to value it under s. 135 BIA. In the instant case, given the nature of Manitoba's equalization scheme, I consider the claim to have been provable. The FPA establishes a principle of equality between spouses. The accounting of assets and liabilities under s. 15 FPA leads to an equal division, subject to a limited judicial discretion under s. 14 to depart from the formula provided for in s. 15. A right to payment existed in this case from the time of separation of the spouses, and hence existed at the time of the bankruptcy. All that remained was to determine the quantum by applying a clear formula that left little scope for judicial discretion. In such circumstances, the claim could not be considered so uncertain that s. 135 BIA could not apply. On the contrary, the appellant's claim, which had arisen before the bankruptcy and was determinable under the FPA, was provable (Klotz, at pp. 5-3, 5-4, 5-5 and 5-9).

29 In the instant case, the appellant's claim is not a proprietary claim. It was provable under ss. 121 and 135 BIA. It was not exempt from the effect of a discharge as a claim for support or maintenance under s. 178(1)(b) and (c). The bankruptcy and discharge had the effect of releasing the respondent from it. The BIA and the possible remedies create an exception that applies solely to alimony or support. Although it is of equal importance, a claim under an equalization of property scheme cannot be considered to constitute support (R. J. Wood, Bankruptcy and Insolvency Law (2009), at pp. 291-92).

[emphasis added]

[17] Since Ontario and Manitoba appear to have similar schemes governing equalization, it is clear that I simply do not have jurisdiction to hear Mrs. O’Halloran’s claims for an equalization payment or for her share of Mr. O’Halloran’s pension funds since Mrs. O’Halloran did not seek leave of Mr. O’Halloran’s trustee as per the Bankruptcy and Insolvency Act. As such, I decline to dismiss any claim she may have for this relief. I will simply indicate that the BIA stay remains in effect until discharge.

2. Spousal Support

[18] Mrs. O’Halloran makes a claim for spousal support. Mr. O’Halloran concedes that he owes spousal support to Mrs. O’Halloran. They differ, however, with respect to quantum. Currently, Mr. OHalloran pays $4000 a month in interim spousal support based on an annual income of $125,000 and his wifes lack of earnings.

[19] Section 15.2 of the Divorce Act governs spousal support:

Spousal support order

15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

Interim order

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1).

Terms and conditions

(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

Factors

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

(c) any order, agreement or arrangement relating to support of either spouse.

Spousal misconduct

(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

Objectives of spousal support order

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

1997, c. 1, s. 2.

[20] Although neither side addressed the issue, it is clear that, given the ages of the parties, the nature of the function performed by each during cohabitation, and the length of the marriage, any Order I make will effectively be for indefinite support.

[21] Mrs. O’Halloran is seeking $4,956 per month based on an imputed income for Mr. O’Halloran of $156,000 per annum and no income for her. Mrs. O’Halloran states that Mr. O’Halloran took a lesser paying job in late 2011, in part, to avoid paying elevated spousal support. She thus wishes to impute an income to Mr. O’Halloran of $156,000. Further, she indicates that she is unable to work due to the stress and physical issues described earlier in this judgment although she has provided no medical or expert testimony to adequately substantiate this position.

[22] The guideline amount governing a situation where a payor earns $156,000 and a payee spouse makes no money ranges between $4,262 and $5,683. Mrs. O’Halloran also states that since Mr. O’Halloran is living with someone who makes a good wage, he should pay her adequately so as to ensure that the standard of living enjoyed by both parties is roughly similar.

[23] Mr. O’Halloran states that he took a lower paying job because of conditions working underground. He has a supervisor’s job that pays less than his previous post paid. His new job is less physically damaging than being underground. He indicates that his doctor has advised him that he has black spots on his lungs but Mr. O’Halloran has furnished no expert evidence substantiating his medical condition. Neither has Mr. O’Halloran provided medical evidence attributing his condition to underground work, as opposed to his smoking habit. Regardless, Mr. O’Halloran indicates that as a 50 year-old man, he should have the right to take a lower paying job that is easier on his body, despite the new job’s stressful components.

[24] Mr. O’Halloran also states that Mrs. O’Halloran has the skills and ability to work but that she chooses not so to do. He indicates that she has the ability to earn $25,000 or even $30,000 per annum given the skills she acquired while running two stores. Further, he indicated that Mrs. O’Halloran could work at a restaurant given her past as a waitress or cook. As such, assuming that Mr. O’Halloran has an annual income of $113,344 and assuming that Mrs. O’Halloran should be imputed an income of $25,000 per annum, the guidelines state that Mr. O’Halloran should pay between $2429 and $3239 per month in spousal support. Mr. O’Halloran, states that he ought to pay approximately $2,800 to $2,900 per month.

[25] First, I accept that Mr. O’Halloran’s pay dropped from approximately $155,000 per annum to $113,344 per annum because he no longer wished to go underground. Given that Mr. O’Halloran has worked at Barrick for 26 years, this is not an unreasonable decision on his part. Mr. O’Halloran testified, and I accept, that mining can be difficult work. I find as a fact that his decision to become a supervisor was reasonable and was not designed as a means of punishing Mrs. O’Halloran or reducing the quantum of spousal support owed. As a result, I will not impute income to Mr. O’Halloran beyond the $113,344 that he currently earns with salary and bonus.

[26] Secondly, I while I accept that Mrs. O’Halloran cannot work at the present time due to stress and physical ailments, I have no evidence to believe that this inability is permanent. In fact, I believe that Mrs. O’Halloran will likely be in a position to begin working in approximately May 2014 assuming that her knee and elbow surgeries (which will hopefully be completed in the next few months) proceed according to plan. If the surgery is successful, I cannot see how her physical ailments would prevent her from working.

[27] I also accept that Mrs. O’Halloran’s stress is largely attributable to three factors:

1. The stress of the breakup;

2. The stress of managing finances while her husband declares bankrupty; and

3. The stress associated with her court matters.

[28] With respect to the stress of the breakup, this is simply a problem with which Mrs. O’Halloran must deal. She has been separated from her husband for a few years now and it is time to push forward with her life, difficult though that may be.

[29] The stress of managing the finances could, I would think, be alleviated by selling the Marathon home or by otherwise simplifying her financial life. I accept that she has undertaken an admirable effort to keep herself from bankruptcy. I also find that she appears to have options that would make her life less stressful. I note that a trustee in bankruptcy met with Mrs. O’Halloran and suggested that she should not declare bankruptcy. I infer that the trustee made this recommendation because Mrs. O’Halloran has financial options at her disposal. Indeed, Mrs. O’Halloran has already begun a “rent to own” plan with her tenant in Marathon such that the tenant may purchase the home within the next two years. Further, the value of Mrs. O’Halloran’s “classic” cars remains undetermined. Accordingly, I believe that there are options available to Mrs. O’Halloran that will relieve her of financial stress.

[30] Court stress is also a very real phenomenon, as seen by Mrs. O’Halloran’s need to spend a night in hospital. Fortunately for Mrs. O’Halloran, her matrimonial litigation is largely completed and she will hopefully be done testifying in her other court case in November of 2013. As such, this source of difficulty will hopefully be terminated.

[31] Given the foregoing, I think it is entirely reasonable that Mrs. O’Halloran will be able to work by May 1, 2014. The issue becomes the nature of the employment Mrs. O’Halloran is capable of finding. She is 50 years old, has a Grade 10 education, has traditionally earned little money and has not worked in four years. To suggest that Mrs. O’Halloran could find work paying more than minimum wage in Sault Ste. Marie, Ontario is simply unrealistic. I believe that Mrs. O’Halloran ought to be able to secure minimum wage employment at 30 hours per week, 50 weeks per year. Such employment would pay $16,125 per annum. The monthly guideline amounts governing a situation where the payor makes $113,344 and the payee spouse makes $16,125 ranges between $2,674 and $3,565, with a mid-range of $3,119.

[32] As indicated in Schreyer, I can use the fact that Mr. O`Halloran retains his pension as a basis for elevating support. In this case, however, I refrain from so doing. First, Mr. O’Halloran often worked seven days a week during the marriage. He did this, according to all parties, because Mrs. O’Halloran refused to work beyond that time frame. Surely, Mr. O’Halloran should be given some benefit for having worked hard to ensure that his wife had adequate time to enjoy a lifestyle that involved considerable amounts of time at the casino.

[33] Secondly, pension funds are different than other protected assets since the funds will ultimately become part of Mr. O’Halloran’s income which will in turn affect Mr. O’Halloran’s support payments. Further, Mrs. O’Halloran may yet seek leave from the trustee to pursue a claim. Unlike Schreyer, the potential for a windfall to the payor spouse thus appears to be mitigated.

[34] I am also mindful of Fischer v. Fischer, 2008 ONCA 11, [2008] O.J. No. 38 which states that a Court should view the guideline amounts as a useful tool for determining support unless the parties’ situation dictates that the guideline amount is inappropriate. Thus, I fix spousal support at $3,500 per month until May 1, 2014 and $3,119 per month thereafter. Even considering Mr. O’Halloran’s living arrangements, I do not believe there is a sufficient disparity between the two standards of living enjoyed by Mr. and Mrs. O’Halloran to justify going outside the guideline range. I also order that the parties exchange all relevant tax and financial information by May 1, 2014 each year.

[35] I decline to make any Order regarding arrears since the interim Order was reasonable in light of circumstances that existed at the time and in light of the debts incurred by Mrs. O’Halloran in maintaining the properties since breakup.

3. Medical and Life Insurance Benefits

[36] Mr. O`Halloran has agreed to remain married so that his wife may remain on his medical benefits package at work. Given Mrs. O’Halloran’s current medicinal needs, this is a prudent decision. I note that said benefits terminate upon his retirement. I thus order that Mr. O’Halloran give Mrs. O’Halloran 6 months’ notice of his intention to retire so that she may consider what steps she wishes to take as a result thereof.

[37] With respect to life insurance, Mr. O’Halloran indicates that he has two life insurance policies through work currently valued at approximately $184,000. He would like to have the proceeds divided 50/50 between Mrs. O’Halloran and his new partner. Mrs. O’Halloran suggests that this division gives inadequate weight to both the 22 years that the O’Hallorans were married prior to separation as well as the relative means of both the new partner (who makes a good wage at Barrick) and Mrs. O’Halloran (who is dependent upon Mr. O’Halloran for support). In this regard, I agree with Mrs. O’Halloran. Given the order I made above with respect to spousal support, it is important that Mrs. O’Halloran have sufficient security regarding Mr. O’Halloran’s support obligations. Accordingly, as per s. 34(i) of the Family Law Act, I order that Mr. O’Halloran’s pension designate Mrs. O’Halloran as beneficiary for 80% of the proceeds of all Mr. O’Halloran’s life insurance policies. Mr. O’Halloran can designate whomever he chooses as the beneficiary of the remaining amount.

4. Ashes/Christmas Gifts

[38] Mrs. O’Halloran claims that Mr. O’Halloran took her brother’s ashes and Christmas gifts intended for her son some time ago and has failed to return them. This suggestion is based upon circumstantial evidence wherein she claims that Mr. O’Halloran was the last person in the house prior to the disappearance of these items. Mr. O’Halloran, for his part, denies having taken the ashes and has agreed to pay for part of a lie detector test to prove his innocence.

[39] Obviously, this situation has caused considerable emotional toil to all concerned. Stealing ashes constitutes moral decrepitude of Biblical proportion. Stealing Christmas gifts is comic book-like in its simplistic manifestation of malice. To engage in such conduct is unspeakable. To be wrongly accused of these actions would be harrowing.

[40] The evidence before me is such that I do not know how the ashes and Christmas gifts came to be lost. The circumstantial evidence adduced by Mrs. O’Halloran was not sufficiently specific or clear regarding: (1) where the ashes were located; (2) and how it is that she knows that no one else came into the house other than Mr. O’Halloran. I thus cannot make a finding in this regard. Although I feel for Mrs. O’Halloran’s loss, I cannot attribute blame without a proper evidentiary foundation.

COSTS

[41] The parties may write to me within 15 days of the release of this decision in no more than 2 pages.

Varpio, J.

Released: 2013-10-15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LINDA SUZANNE O’HALLORAN

• and -

KERRY DEAN O’HALLORAN

REASONS FOR JUDGMENT

Varpio, J.

Released: 2013-10-15