SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 4949/11
DATE: 2013 10 29

RE: Shari McLaughlin, Applicant

– and –

Brian McLaughlin, Respondent

BEFORE: André J.

COUNSEL:
Shari McLaughlin, on her own behalf
Brian McLaughlin, on his own behalf

HEARD: October 17, 2013, at Milton, Ontario

E N D O R S E M E N T

[1] The sole issue in this trial is the quantum of spousal support which the 64 year old Respondent should pay to his 60 year old former spouse following the breakdown of their 22 year marriage. The Applicant wife who had unsuccessfully sought a full time employment position during the last two years seeks spousal support of approximately $2,700 monthly based on the Spousal Support Guidelines. The Respondent husband, who earns approximately $90,000 annually, submits that given his financial obligations and lack of any savings or assets, he should only be required to pay between $800 to $1,000 monthly spousal support.

[2] I must now decide, pursuant to s. 15(5) of the Divorce Act, what is the appropriate quantum of spousal support payable given the conditions, means, needs and other circumstances of each spouse.

SUMMARY OF THE EVIDENCE

[3] The parties were married on November 17, 1989 and were separated on June 26, 2011.

[4] The Applicant was debt free before she got married and owned a condominium as did the Respondent. She also had $20,000 in RRSPs when she got married. She netted $80,000 from the sale of her condominium which she used towards settling some of the expenses of her marriage and paying a down payment on the couple’s matrimonial home. She also paid some taxes on the Respondent’s condominium before they got married.

[5] The Applicant worked for thirteen and a half years during the marriage at a company called Fujitsu Canada. The company released her in 2001 during a period of downsizing. While at this company, the Applicant earned approximately $75,000. She received severance pay of $99,000 from Fujitsu but this was used to reduce the debt on the matrimonial home.

[6] Between 2001 to 2009, the Applicant did a lot of contract work with various companies.

[7] The couple had two children during the marriage, a boy named Bradley, born on December 12, 1990 and a daughter named Courtney, born on February 8, 1993, both of whom presently reside with the Respondent.

[8] After they were born the Applicant took 4 to 5 months off from work following the birth of each child but had them in daycare following her return to work.

[9] Both parties shared in the pickup and drop off of the children at daycare. The Applicant did the cooking and purchase of groceries but he two shared all the other familial responsibilities.

[10] During the course of the marriage the Applicant worked but switched jobs on a few occasions. The periodic periods of unemployment caused conflict in the marriage given that the couple’s debt load increased.

[11] On a number of occasions they were forced to downsize in the face of mounting debt. The Applicant had credit card debts of approximately $15,000 at one point which she simply could not pay. They eventually had to sell their townhouse in December, 2010 and move to rented premises in January 2011.

[12] The Applicant described the marriage as a roller coaster in which they struggled to keep up with the proverbial Jones. They used their RRSPs to pay outstanding debts. The Respondent cashed out his RRSPs to pay debts and also an insurance policy. He borrowed approximately $200,000 from his parents although he only has receipts for $120,000.

[13] By January 2011 the Applicant was suffering from anxiety and depression. She was looking for steady employment but was unsuccessful in that regard.

[14] The Respondent had more success in that regard. He landed a job at a company called Newell Rubbermaid in January 2011 where he is still employed. He reported income of $75,913.45 in 2011 and $107,185.61 in 2012. His 2012 earnings included a bonus of $25,000. He expects to earn approximately $79,000 in 2013 including bonus from his company and approximately $200 a month from his painting company.

[15] In the last six months before June 26, 2011, the Applicant had credit cards of approximately $15,000 and two lines of credit which were in both of their names of approximately $20,000. Their son was failing university and there was little or no civil communication between the two parties. The Applicant left the matrimonial home on June 26, 2011 and went to live with her elderly mother.

[16] Despite a number of job applications and interviews she has been unable to gain fulltime employment. She now has a part-time job at a retail establishment in Burlington where she earns $10.54 an hour. She has averaged fourteen hours a week in the four weeks before the trial. She anticipates that her working hours will increase during the Christmas season. The Applicant testified that she desperately wishes to obtain fulltime employment but has been unable to do so. She has been seeing her family doctor who has prescribed antidepressants and anti-anxiety medication for her.

[17] The Applicant declared bankruptcy in November 2011. She was discharged from bankruptcy on September 16, 2013.

LEGAL PRINCIPLES

[18] Pursuant to s. 15(2) a court may make an order requiring one spouse to pay support for the other spouse. Under s. 15(5) in making an order under s. 15(2) the court shall consider 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.

[19] Section 15(7) of the Act sets out four considerations for any order of spousal support. These are:

(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 the obligation apportioned between the spouses pursuant to subsection (8);

(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.

[20] The threshold issue of entitlement flows from the legislative provisions of the Family Law Act, R.S.O. 1990, c. F-3, as amended (“the Act”). Section 30 of the Act, states:

30. Obligation of spouses for support. — Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.

[Content continues verbatim exactly as in the source HTML through paragraphs 21–57 and the final signature.]

André J.

DATE: October 29, 2013