ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-12-1860-00
DATE: 20131009
B E T W E E N:
ELIZABETH PLASA
Kavita V. Bhagat, for the Applicant
Applicant
- and -
KARL PLASA
Self-Represented
Respondent
HEARD: September 18, 19 and 20, 2013
REASONS FOR JUDGMENT
Tzimas J.:
OVERVIEW
[1] Karl Heinz Plasa and Elizabeth Plasa met in October 1987. They dated for a number of months and they were married on July 30, 1998. They adopted Anna-Lisa, who was born in Guatemala, on August 16, 1991. They separated on February 10, 2010 after a few very challenging years.
[2] Karl disputes his obligation to pay any spousal support or child support. Up until his cross-examination, Karl also disputed Elizabeth’s equalization claim. Under cross-examination he conceded very reluctantly that certain bank accounts that he believed should be included in Elizabeth’s equalization analysis were opened after the date of separation and should not be included in the calculation. He insisted however that the sum of $3,600.00 he said he spent on account of some kitchen renovations be added to the analysis.
[3] The questions that have to be answered by this court are as follows:
Confirmation of the equalization payment owed to Elizabeth.
Should Elizabeth receive spousal support for the period between February 2010 and December 2012?
Should Elizabeth be paid child support for Anna-Lisa, from February 2010 until April 2013?
BACKGROUND
[4] Karl and Elizabeth were married 23 years ago. Elizabeth is 64 years old. Karl is 65 years old. They have one daughter, who is 22 years old.
[5] The first 16 years of the marriage were generally happy years. Elizabeth described them as “great”. She said that Karl was a good husband and a good father. Karl said that he had “a normal marriage”. He actively tried to downplay the quality of his relationship with Elizabeth but there was no real evidence to support that view.
[6] The first cracks in the marriage appeared in 2000, when Elizabeth was diagnosed with breast cancer and had to undergo radiation therapy. The challenge was compounded by the requirement for Elizabeth go to Buffalo, U.S.A. to obtain treatment. Karl would drive her there at the beginning of the week and bring her back at the end of the week.
[7] According to Elizabeth, it was during this time that Karl began to distance himself from her. He started to drink and gradually became physically and verbally abusive. Karl denied that fact. He confirmed that he would drive Elizabeth to the States for her treatments. He also said that during this period he also attended to the needs of Elizabeth’s elderly parents.
[8] In 2003, Karl insisted that Elizabeth find some employment. She obtained a part-time job at Dominion and then Metro at the deli counter.
[9] In 2009 the cancer returned. This time, Elizabeth required treatment that was more aggressive. Elizabeth had to have a mastectomy as well as chemotherapy. As a result of her treatment, she lost her hair and generally encountered a number of serious side effects that eventually prevented her from returning to work.
[10] According to Elizabeth, Karl did not react well to the recurrence of her cancer. His drinking and abusive behaviour escalated. He taunted her for losing her hair and he eventually told her that he considered her to be dead. In Elizabeth’s words, she “prayed for a miracle” because she continued to be in love with her husband. But such a miracle did not occur. By late 2009 it became evident that the marriage could not continue. In 2010 Anna-Lisa told Elizabeth that Karl was having an affair with another woman. That was the final straw. Elizabeth and Karl separated on February 2, 2010.
[11] From February 2, 2010, until June 2012, Elizabeth and Karl lived under the same roof. However, they began to lead separate lives. Anna Lisa lived with them as well. The matrimonial home was sold on August 20, 2012. Thereafter, Elizabeth moved into a basement apartment. Anna-Lisa moved there with her mother.
[12] Elizabeth commenced her Application on April 30, 2012. She did not commence it earlier because she said that she did not have the funds to retain legal counsel.
[13] Karl denied that he took to drinking or that he was abusive. He spoke about Elizabeth in a very distasteful, humiliating and contemptuous manner. Ironically, that manner actually spoke volumes of how he treated and considered Elizabeth. If anything, it affirmed Elizabeth’s testimony of mistreatment and at the very least, verbal abuse.
[14] Apart from Karl’s manner, Karl’s evidence confirmed the basic chronology and events of this very unfortunate marriage.
[15] This Court must address three issues: equalization, spousal support and child support. Each is discussed below.
LAW & ANALYSIS
A. Equalization
[16] At the beginning of the trial Karl contested Elizabeth’s equalization claim on the view that Elizabeth had failed to include certain accounts in her calculation. On cross-examination, he admitted he erred on the existence of the accounts.
[17] Karl also claimed that he spent $3,600.00 for the replacement of the counter-top in the kitchen. On that basis, he submitted that the expense should be included in equalization.
[18] The difficulty with this claim is that Karl had no supporting evidence to support it. It was Elizabeth who, with her brother’s help, undertook certain renovations of the home to make it more attractive for potential buyers. But Elizabeth’s evidence spoke of tiling and renovations that related primarily to a bathroom. She mentioned some kitchen renovations but there was no definitive evidence one way or the other. A global payment to Elizabeth’s brother was also mentioned, but it was not broken down. Taking everything into consideration, and given the relatively small net impact on the equalization analysis, it is appropriate to include the sum of $3,600.00.
[19] With that clarification, Karl’s equalization payment to Elizabeth comes to $199,433.76. An advance of $175,000.00 as against that equalization payment expected to be owed to Elizabeth was made prior to the trial. That leaves an outstanding payment of $24,433.76 to be paid by Karl to Elizabeth.
B. Entitlement to Spousal Support
[20] Elizabeth has advanced a claim for spousal support from February 2, 2010 until January 2013. She is not claiming any ongoing support at this time. The analysis that follows is therefore limited to the years claimed, without prejudice to a future claim for ongoing support.
[21] Karl disputes her entitlement to any such payment. His principal objection rests with his view that at least until June 2, 2012 he paid all the household expenses. He also said that he paid Elizabeth a bi-weekly allowance initially of $400.00 and then reduced it to $100.00. Furthermore, he said he paid for most of the food. In Karl’s mind, even though he agreed that the appropriate date of separation is February 2, 2010, that should not matter because nothing really changed; he continued to provide for Elizabeth as he did before the separation.
[22] Before turning to Elizabeth’s position, it should be observed that Karl’s evidence concerning the bi-weekly allowance was unconvincing and inconclusive. Although his accounts suggested that for a period of time there was a regular pattern of cash withdrawals in the sum of $640.00, there was no evidence that those cash withdrawals were then paid to Elizabeth and/or Anna-Lisa. It is entirely possible that Karl spent that money for his own purposes.
[23] Elizabeth does not dispute that Karl paid for the household expenses for a period of time after they separated. In light of that payment, she proposes that 50% of the household expenses paid by Karl in the defined period be taken into account when calculating the spousal support that she ought to receive.
[24] But household expenses ought not to be conflated, as Karl appeared to be doing, with the balance of the expenses that people need to support themselves. Such expenses would include food, clothing, medicines, personal needs, transportation and related incidental expenses. Elizabeth became responsible for most of these expenses. Karl paid for some of the food in the first few months of separation, but eventually he stopped. Elizabeth testified that she paid for her food, her transportation, her clothing, her medications her daughter’s expenses, and other personal needs. She admitted that Karl gave her an allowance of $100.00 every two weeks until sometime in 2011. Thereafter he stopped those payments.
[25] Karl’s refusal to pay any spousal support, especially given Elizabeth’s willingness to reconcile the payments he made as well as her overall situation is very problematic and contrary to Karl’s legal obligations.
[26] The factors that determine the entitlement to spousal support are outlined in section 15.2(4) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp), as am. Subsection 15.2(6) outlines the objectives of spousal support.
[27] Subsection 15.2(4) states as follows:
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.
[28] Subsection 15.2(6) outlines the following objectives of spousal support:
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.
[29] All factors outlined in s. 15.2(4) must be considered by the Court in conjunction with the objectives of spousal support listed in s. 15.2(6), see, Kovac v. Kovac, 2013 ONSC 4593. The balancing of the objectives is to be on a case by case basis. The Court must exercise its discretion in a way that responds to the adverse consequences and economic hardship resulting from the marriage or its breakdown. No single objective, is paramount, see Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813 at para. 79. See also Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241 and Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 S.C.R. 420.
[30] In light of Karl’s very strenuous objections to the payment of any support to Elizabeth, and by contrast, given the history of their marriage and Elizabeth’s circumstances, it is especially useful to review and consider the Supreme Court of Canada’s analysis in Bracklow which discusses the underlying concepts that inform the objectives of spousal support:
39 ...Under the Divorce Act, compensation arguments can be grounded in the need to consider the "condition" of the spouse; the "means, needs and other circumstances" of the spouse, which may encompass lack of ability to support oneself due to foregoing career opportunities during the marriage; and "the functions performed by each spouse during cohabitation", which may support the same argument. ...
40 ... these factors may support arguments based on compensation for what happened during the marriage and its breakdown. But they invite an inquiry that goes beyond compensation to the actual situation of the parties at the time of the application. Thus, the basic social obligation model may equally be seen to occupy the statutory provisions.
41 Section 15.2 (6) of the Divorce Act which sets out the objectives of support orders, also speaks to these non-compensatory factors. The first two objectives -- to recognize the economic consequences of the marriage or its breakdown and to apportion between the spouses financial consequences of child care over and above child support payments -- are primarily related to compensation. But the third and fourth objectives are difficult to confine to that goal. "[E]conomic hardship . . . arising from the breakdown of the marriage" is capable of encompassing not only health or career disadvantages arising from the marriage breakdown properly the subject of compensation (perhaps more directly covered in s. 15.2(6)(a): see Payne on Divorce, supra, at pp. 251-53), but the mere fact that a person who formerly enjoyed intra-spousal entitlement to support now finds herself or himself without it. Looking only at compensation, one merely asks what loss the marriage or marriage breakup caused that would not have been suffered but for the marriage. But even where loss in this sense cannot be established, the breakup may cause economic hardship in a larger, non-compensatory sense. Such an interpretation supports the independent inclusion of s. 15.2(6)(c) as a separate consideration from s. 15.2(6)(a). Thus, Rogerson sees s. 15.2(6)(c), "the principle of compensation for the economic disadvantages of the marriage breakdown as distinct from the disadvantages of the marriage", as an explicit recognition of "non-compensatory" support ("Spousal Support After Moge", supra, at pp. 371-72 (emphasis in original)).
42 Similarly, the fourth objective of s. 15.2(6) of the Divorce Act -- to promote economic self-sufficiency -- may or may not be tied to compensation for disadvantages caused by the marriage or its breakup. A spouse's lack of self-sufficiency may be related to foregoing career and educational opportunities because of the marriage. But it may also arise from completely different sources, like the disappearance of the kind of work the spouse was trained to do (a career shift having nothing to do with the marriage or its breakdown) or, as in this case, ill-health.
[31] Elizabeth could not have presented a more compelling claim for spousal support. She and Karl were married for 23 years. As much as Karl tried to paint a picture of somebody who was lazy, uncaring, and unsympathetic, nothing in the evidence even remotely supported such a characterization. Elizabeth presented as a very sympathetic and supportive individual. Her overall demeanour suggested to the court that she still cares for Karl, even with the experiences she has been through. Most significantly, for the purposes of this analysis, she has been left to face a number of hardships, both compensatory and non-compensatory on her own.
[32] The reality is that Elizabeth is 64 years old. Her education is limited and her health is fragile. It is encouraging that her cancer is in remission but given her history, she has no prospects of finding employment, even if her health would permit her to do so.
[33] Looking back at her marriage, apart from a few years when Elizabeth worked at the deli counter, Elizabeth did not work. She stayed at home to raise Anna-Lisa. As much as Karl tried to suggest that Elizabeth did not want to work, his own evidence betrayed him when he explained that her earning capacity was so limited that had she worked, he would have lost the spousal deduction on his income taxes. Karl did not want Elizabeth to work. He was content to have Elizabeth stay at home to raise their daughter.
[34] In September 2003, Elizabeth worked for Dominion and later Metro at the Deli department. All her earnings were deposited in a joint account. In 2008, her annual income was $16,000.00. In 2009, she worked until the recurrence of her cancer. In that time period, she earned $8,399.00.
[35] Elizabeth has not been able to return to work since 2009 and her medical situation would suggest that such a prospect is unlikely. Since August 2009 she has been receiving a Canada Disability Pension. That pension amounts to an annual payment of approximately $10,000.00, not nearly enough to support herself.
[36] In contrast to Elizabeth’s economic position, Karl earned a very respectable income that enabled him to support his family and provide them with a comfortable living.
[37] Karl is an accountant. Over the years, he worked with various companies as an accountant, as an assistant comptroller and in a couple of instances as a Vice-President of Finance. I have little doubt that he worked very hard in these various positions. There was no dispute that until he was terminated in 2012 by his most recent employer, (for which a wrongful dismissal lawsuit is in progress), Karl was earning an annual income of almost $90,000.00 as well as associated bonuses.
[38] The lifestyle during the marriage that Karl described was comfortable, though not extravagant. The overall picture that was imparted to the court was one of a middle-class family. Karl spoke of annual holidays and vacations, which included Elizabeth’s parents. He also referenced one Mediterranean Cruise that he and Elizabeth took together. Karl also had a small boat.
[39] The break-up of the marriage has resulted in a significant variation in Elizabeth’s and Karl’s respective standards of living. In Elizabeth’s case, after the sale of the matrimonial home, she moved into a basement apartment, together with her daughter. This was a significant downsizing for Elizabeth, which among other adjustments meant that she had to reduce her possessions very substantially. The quality of her life has also diminished very significantly.
[40] Karl’s situation is somewhat unclear. In terms of his accommodations, it was not clear if the address he identified as his home was a place that he shared with his girlfriend. He also testified that he spent part of June and July 2012 in a Men’s Shelter. However, no further explanation or evidence was provided for that arrangement. The testimony was somewhat curious because Karl’s financial situation did not reveal a need to move into a shelter. In addition, since the separation Karl testified that he continued with his travels, primarily to Florida. In the past year, Karl admitted that he also traveled to another destination for a number of weeks, though quite mysteriously he refused to disclose the location of that vacation. On balance, apart from the highly questionable few weeks at the Men’s Shelter, it would appear that Karl has managed to maintain a lifestyle at least as similar as the lifestyle he led before the break-up of the marriage.
[41] Taking all of the circumstances into account, Elizabeth is entitled to spousal support. As noted above, Elizabeth chose to focus on her claim for spousal support for the years: 2010, 2011 and 2012. The analysis that follows is therefore limited to these three years. Also as noted above, the conclusions regarding this period is without prejudice to a claim by Elizabeth for ongoing support.
[42] Karl did not dispute that he earned the following income for the years 2010-2012:
2010: $88,399.00
2011: $90,338.00
2012: $60,550.00
[43] For the same years, Elizabeth received a CPP Disability Pension as follows:
2010: $9,217.00
2011: $12,736.00
2012: $11,988.00
[44] Counsel for Elizabeth presented for the court’s consideration various calculations for each of the years claimed. Using Divorcemate to crunch through the various possibilities for spousal support, counsel submitted that the court accept the high end monthly entitlement. She then suggested that the claim for spousal support be adjusted to take into account and deduct those household expenses that Karl did cover while he remained at the matrimonial home.
[45] For 2010, the Support Calculations for Spousal and for Spousal + Child + S. 7 were broken down as follows:
Calculations for 2010
Spousal
Spousal + Child + S. 7
SSAG High no Child Support
3,035 x 11
33,385
SSAG with Child Support
2,217 x 11
24,387
Child Support
788 x 11
8668
Special Expenses
385 x 12
4620
33,385
37675
Less
Household expenses
paid by Respondent
15,194.5
(50% of $30,389)
15,194.5
(50% of
$30,389)
Less Cash biweekly
200
240
Add
Visa claimed on date
of valuation:
$284
284
Add Visa for ECE
Sheridan special
expenses
$3,869.21
reimbursed
$3,869.21
reimbursed
Add Medical benefits
reimbursed
$653
653
33,385
-15194.5
-200
+284
+3,869
+653
37675
-15194.5
-240
+284
+3869
+653
Total owed
22,796.5
27,047.5
[46] For 2011, the Support Calculations for Spousal and Child Support the figures are broken down as follows:
Calculation for 2011
Spousal
Spousal + Child
SSAG High no Child Support
2975 x 12
2795 x 5
13975
SSAG with Child Support
2,200 x 7
15400
Child Support
804 x 7
5628
Special Expenses
0
35700
35003
Less
Household expenses paid by Respondent
13,522.97
(50% of $27,045.94)
13,522.97
(50% of
$27,045.94)
Add Medical benefits
1215.2
1215.2
Total
23,392.23
22,696.2
[47] For 2012, the Support Calculations for Spousal Support and for Spousal + Child + s. 7 expenses are broken down as follows:
Calculations for 2012
Spousal
Spousal + Child + S.7
SSAG High no Child Support
1862 x 12
22344
SSAG with Child Support
1268 x 12
15216
Child Support
551 x 12
6612
Special Expenses
399 x 12
4788
22344
26616
Less
Household expenses paid by Respondent
4,873.5 (50% of $9,747)
4,873.5 (50% of $9,747)
Total
17470.5
21,743
[48] For the reasons outlined below, Elizabeth is also entitled to child support for the three years, 2010-2012 and for 4 months in 2013. S. 7 expenses are also appropriate for the years, 2010 and 2012. Taken together, the support calculations for Spousal, Child and s. 7 support breakdown to the following:
Spousal + Child + (s. 7, where applicable)
2010: $27,047.50
2011: $22,696.20
2012: $21,743.00
TOTAL: $71,486.70
[49] At trial Karl indicated that his wrongful dismissal lawsuit is underway and he was hopeful that he would receive damages. He proposed that he share 48% of any award with Elizabeth, in lieu of any spousal support. With respect, such an award is tentative and speculative. The more appropriate treatment of an award would be to apply it to adjust the income that was imputed for 2012 and to adjust the spousal support entitlement to a higher figure. In other words, should there be an award, it should be imputed to the balance of the year 2012. That would make up for the reduced income for 2012, and by extension, the reduced spousal support calculation for 2012. For that reason, counsel representing Karl on that suit, ought to keep Elizabeth and her counsel apprised of the progress of that action. Should Karl decide to represent himself, as he did in this matter, then he is to meet that obligation.
Child Support and s. 7 Expenses
[50] Elizabeth claims child support for the years 2010 through to the first four months of 2013. She also seeks s.7 expenses incurred in 2010 and 2012. Karl resists the payment of any support. As in Elizabeth’s case with spousal support, Karl takes the position that there is no need for any support because he provided Anna-Lisa with a roof over her head. He paid some transportation costs and he provided for some food. Other needs, such as clothing, footwear, health and medication products, books and other incidental needs simply do not factor into Karl’s equation of basic needs. In short, Elizabeth has been covering those needs within her limited means.
[51] Anna-Lisa is an adult child who is now twenty two years old. She lives with her mother and has been under her mother’s care since the date of separation. In the period between February 2010 and the present time, Anna- Lisa attended Sheridan College intermittently. During this period she encountered difficulties with her studies and ultimately she was not able to complete either of the two programs that she tried to pursue. In 2011 she was obliged to interrupt her studies because of her poor performance. She undertook some part-time work but the income was not terribly substantial.
[52] When it comes to support for adult children, it is typically extended as long as the children continue with their studies. Depending on their particular circumstances, they may be required to make a partial contribution for their needs, see for example, Lewi v. Lewi, 2006 15446 (ON CA), [2006] O.J. No.1847 (Ont. C.A.). If they give up their studies and enter the work force, absent specific explanations, child support ceases. See also Taylor v. Taylor, [2009] O.J. No. 1749, and Fallis v. Garcia, [2008] O.J. No. 2099. Within those broad parameters, the court has considerable discretion to make an order that corresponds with the overall objectives of the Child Support Guidelines.
[53] Anna-Lisa’s situation presents some challenges and it is not as simple as to suggest that since she was only an intermittent student between 2010 and the first four months of 2013 Karl should be relieved of his obligations to support her.
[54] There was no direct evidence on the effects of Elizabeth’s illness and the parents’ break-up on Anna-Lisa’s emotional well-being. But Anna-Lisa’s difficulties with her studies are unlikely to have been merely coincident to her parents’ difficulties. It stands to reason that witnessing her mother’s illness, having to tell her mother about her father’s affairs, and witnessing her father’s abuse and repeatedly inebriated condition, as described by Elizabeth, could not have been easy for Anna-Lisa. Karl’s dismissive attitude and the description of his daughter in one instance as “bumming around” underscored more than anything else the lack of support on his part.
[55] These circumstances are such that the court ought to exercise its discretion to provide Anna-Lisa with some support, albeit limited. In other words, the question cannot, in these circumstances be about whether Karl should pay any child support and s.7 expenses. Rather, the question is about how much child support and what s.7 expenses ought to be paid.
[56] The claim advanced by Elizabeth for the years 2010 through to the first four months of 2013 based on the Guidelines, but adjusted as noted in the tables above to take into account Karl’s 50% contribution to the home expenses, is very reasonable and appropriate to these circumstances. Child support and s.7 expenses are to be paid in accordance with the calculations in paras. 45-47 and the overall sum identified in paragraph 48 noted above. For 2013 child support in the sum of $224.00 for four months is accepted as an appropriate sum.
CONCLUSION
[57] Based on the analysis above, Karl is to pay the sums on account of equalization, spousal support, child support and s. 7 expenses as claimed outlined in paragraphs 19 and 48-50. Furthermore, he and/or his counsel on the wrongful dismissal action is to keep Elizabeth and her counsel apprised of the progress in that action, as well as any award that might be obtained. This will enable the potential adjustment to the spousal support for the year 2012.
COSTS
[58] Elizabeth is entitled to her costs. If the parties are unable to reach agreement, they make file their cost submissions by October 25, 2013, such submissions to be limited each to two pages, double-spaced.
Tzimas J.
Released: October 9, 2013
COURT FILE NO.: FS-12-1860-00
DATE: 20131009
ONTARIO
SUPERIOR COURT OF JUSTICE
ELIZABETH PLASA
– and –
KARL PLASA
REASONS FOR JUDGMENT
Tzimas J.
Released: October 9, 2013