PETERBOROUGH COURT FILE

COURT FILE NO.: FC-01-0495
DATE: 2013-12-09

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ANN CATHERINE QUACKENBUSH, Applicant

AND:

ROBERT HENRY QUACKENBUSH, Respondent

BEFORE: R. MacKINNON, J.

COUNSEL:
K. P. O’Dwyer, Counsel, for the Applicant

T.L. Williams, Counsel, for the Respondent

HEARD: November 29, 2013 at Lindsay

ENDORSEMENT

[1] The parties were married in July 1971, separated in October 1990, and were divorced February 25, 1997. The Applicant started this proceeding in October 2001. Custody, access and child support were apparently settled to both parties’ satisfaction, although no court order was made. Spousal support pursuant to the Divorce Act was claimed but none was ever agreed to or paid.

[2] The parties lived together married for 19 years. They have now been separated for 23 years and divorced for 16 years. The Applicant ex-wife, almost 62, now pursues her request for interim and permanent spousal support. Amazingly, 23 years post-separation, the issue now before me is interim spousal support, both as to liability and quantum.

[3] The Respondent ex-husband is now 64 years old. He remarried in 2002 to his present wife Celeste who suffers from chronic pain and cannot work. Her only income is a disability pension of $600 per month. She is otherwise supported by the Respondent. Mr. Quackenbush has retired from General Motors and monthly receives a GM Pension, WSIB Benefits for his knee and back injuries, along with CPP. He had attempted to supplement his income by driving taxi but now has given that up due to ill health. He earned $44,300 in 2012 but, due to the loss of taxi income, I find his 2013 income will be $42,000. When he turns 65 in May 2014, he will lose the top-up portion of his pension and the evidence is that he expects to then receive $39,000 per year. He argues on this motion that, even if he now has liability for spousal support, the Applicant’s delay in bringing this Application is unreasonable since he had financially and emotionally restructured his life many years ago. There is no expectation his income will increase in future.

[4] The parties had two children, Kevin and Patrick. Kevin was diagnosed with a form of muscular dystrophy when he was age four and died in October 2007, having degenerated to a point of complete reliance upon his caregivers. Patrick is now 24, is employed full time, resides elsewhere, and is not dependent. Both children lived with their mother from separation until November 2003 when Patrick moved to live with his father until 2007. Kevin remained with the Applicant until his death in October 2007.

[5] The parties both retained legal counsel from 2001 when this Application was started, and until 2004 at least. The Respondent paid child support to the Applicant for both children in the amount of $882 per month until 2007 even though Patrick had moved to live with him since 2003.

[6] Although the Applicant argues otherwise, I am not persuaded either that she was impoverished by or that her ex-husband was benefited by his post-separation bankruptcy. She retained the home and contents, having refinanced to do so. He retained his employment pension benefits which had accrued for only eight years to separation.

[7] The Applicant now has total annual income of $15,744 from social assistance including ODSP and also from rental income from her downstairs tenant. Because she receives ODSP, she nets only 60 percent of the gross rent. When she turns 65 in three years, she then intends to maximize her CPP credits as ODSP will end. Although urged otherwise by the Respondent, I find her attempts at long-range financial planning are appropriate. If she delays pursuing her CPP credit claim until age 65, she will not receive a reduced CPP benefit at this time. That will financially benefit her at 65 when ODSP terminates. Any funds received in the meantime from CPP will be deducted, dollar for dollar, from ODSP. She has been financially astute and fiscally responsible in managing her minimal income since separation. She has paid down her home mortgage. She is, however, not economically self-sufficient. Rather, she has been and is reliant on public funds. She has been partially disabled since birth. She currently has limited mobility and needs to rely on a wheelchair and other assistive devices to meet her needs. She has osteoarthritis, has undergone three knee replacement surgeries and has left hemiparesis. She suffers chronic back pain and depression for which she takes an antidepressant. She is not now able to work, as a result of her medical limitations. In caring for Kevin until his death in 2007, she was unable to engage in career opportunities. There was no formal equalization of net family properties. Each say the other was enriched on separation. I am not persuaded by either in that regard.

[8] Mr. Quackenbush retired in 2009 and has not paid or had to pay support for many years. He has restructured his financial affairs. He too has a significant health history. He suffered several heart attacks which resulted in retirement. His WSIB benefits are for his knee and back injuries. In addition to her claims for support, the applicant also seeks an insurance policy on his life to secure it. I find the cost to him would be prohibitive even if coverage were available to him.

[9] It has been six years since child support payments ended. Up until 2007 Mr. Quackenbush paid on time and in an appropriate amount for each child on the record before me. I repeat that he continued to pay for two children despite one of them being in his custody for four years.

[10] Mrs. Quackenbush has a financial need and is on public assistance. Her need has existed from before the separation and continues. She advances as reasons for her delay in bringing this application the following:

(a) Her continued financial impecuniosity, being on social assistance;

(b) Kevin’s illness and subsequent death in 2007 which left her depressed;

(c) her medical condition and disabilities, as I have detailed.

[11] The Respondent argues that, in this factual matrix, her application should be dismissed for delay. Alternatively, counsel for Mr. Quackenbush argues that the Guidelines are inapplicable. In any event, she correctly asserts that reasonableness must be viewed contextually.

[12] There was an eleven year post-separation delay in bringing this Application while the Applicant had counsel. There has been a further six year delay following Kevin’s death in 2007 when child support ended.

[13] Subject to a consideration of the issue of delay, I find the Guidelines would otherwise be useful. Mr. Quackenbush has 2013 income of $42,000. The Applicant has 2013 income of $15,744. Spousal support would otherwise be ordered paid at the low end of the range, because:

(a) the Respondent has reasonably believed for years that the issue of spousal support had been abandoned; and

(b) he has reasonably incurred additional financial obligations to his current wife Celeste; and

(c) he is in declining health and is advancing in age.

[14] Absent any consideration based on delay, he would be required by an application of the discretionary Guidelines to pay spousal support to the Applicant in the amount of at least $624 per month – and at most $831 per month. Mrs. Quackenbush seeks the latter.

[15] Courts treat support claims by sick or disabled spouses differently than by other spouses. The starting point is Bracklow. The Court must look at the condition, means, needs and other circumstances of each spouse. The balancing includes, but is not limited to, the length of cohabitation, the functions that each spouse performed, and any order agreement or arrangement relating to support. Depending on the circumstances, some factors may loom larger than others. A court is required to look at all of the factors in light of the stipulated objectives of support and exercise his or her discretion in a manner that equitably alleviates the adverse consequences of the marriage breakdown.

[16] The Quackenbush marriage was a long-term marriage. Mrs. Quackenbush was financially dependent on her spouse during marriage and would be, subject to a consideration based on delay, entitled to support.

[17] I find that Mrs. Quackenbush is a disabled spouse who cannot maintain employment and needs support to maintain her reasonable frugal lifestyle. There is no realistic possibility she will achieve self-sufficiency. Support for a disabled spouse is meant to redress need and prevent a spouse who cannot maintain himself or herself from becoming a public charge. Here the Applicant is such.

[18] Mrs. Quackenbush’s failure to make a timely application reasonably created an understanding on the Respondent’s part that no such claim would be made. Events both before and subsequent to the separation and divorce put Mrs. Quackenbush into a position of having a need for support. Her need stems from her long-standing physical, emotional and financial hardship. It is material that she is publicly supported by the taxpayers. On an interim basis, spousal support is appropriate and will be ordered. Although I find the delay to be unreasonable, it does not result in no interim order being made. That said, I keep in mind that I am considering an interim (italics mine) support request 23 years after the separation. Not only has Mr. Quackenbush restructured his affairs and aged, he has taken on the financial responsibility of a second wife while reasonably believing the Applicant had abandoned her claim for support.

[19] Either a spouse or a former spouse may apply for a support determination under the Divorce Act. There is no limitation period for such an award under that Act, but a significant and unexplained delay may influence a court’s decision to award support. It has influenced mine.

[20] The delay in this case has been extreme. The explanations and excuses advanced for it result in a reduction of support well below the low end of the Guidelines, no retroactive commencement date, and no indexation. In these highly unusual circumstances, it would be unconscionable to slavishly adhere to the Spousal Support Advisory Guidelines (SSAG). I rule that the amount of support to which Mrs. Quackenbush is now entitled should be substantially reduced from those numbers.

[21] I order the Respondent to pay $300 per month to the Applicant for interim spousal support commencing January 1, 2014. There shall be no indexation for cost of living.

[22] Although the Applicant has been successful, in part, on both issues of entitlement and quantum, it would be unconscionable for an award of costs to be made to her. She has the interim award to which she is legally entitled. There will be no order as to costs.

R. MacKINNON J.

Date: December 9, 2013