ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 06-FD-312958
DATE: 20130131
B E T W E E N :
KEVIN BOOTH
Applicant
– and –
TAMIE COLEMAN
Respondent
Kevin Booth
in person
Reide Kaiser
for the Respondent Tamie Coleman
HEARD: May 15-28, 2012
KRUZICK J.:
Nature of the Proceedings
[1] This is a divorce action where both parties claim the divorce. There is also a companion action when Mr. Booth seeks damages against Ms. Coleman for malicious prosecution resulting from Mr. Booth being criminally charged on two separate occasions. I will first deal with the Divorce proceeding first and thereafter with the civil action.
divorce action
History of the marriage
[2] The parties were married on May 23, 2000. They separated in August 2005 and have not resumed living together since then.
[3] There are no children of the relationship. Both parties were previously married and have children from their other relationships. Mr. Booth has two children. Ms. Coleman has three children.
[4] At the date of their separation, Mr. Booth was 40 years old and Ms. Coleman was 42 years old.
[5] The parties separated in January 2003 following an allegation of physical assault made by Ms. Coleman against Mr. Booth. Criminal charges were laid against Mr. Booth. Ms. Coleman continued to live in the former matrimonial home.
[6] In March 2003 Mr. Booth entered into a peace bond. Those charges were withdrawn. The parties then reconciled some three months following the incident and resumed living in the former matrimonial home.
[7] In August 2005 the parties separated again when Ms. Coleman alleged Mr. Booth threatened her. Mr. Booth was charged criminally. He entered into a peace bond and those charges were withdrawn. Ms. Coleman continued to live in the former matrimonial home until March 2006. Mr. Booth then moved back and continues to live at that residence which was also the home in his first marriage. The home is owned by the City of Toronto. Before his marriage to Ms. Coleman and while he and his former spouse lived there it was retrofitted to meet the needs of Mr. Booth’s handicapped son. The handicapped child now resides with Mr. Booth when he has parenting time with his two sons.
[8] In 2006, following Ms. Coleman’s move from the former matrimonial home, she resided in the greater Toronto until she moved to the Kitchener-Waterloo area where she now lives.
[9] Since separation there have been no temporary spousal or child support orders or agreements arising from the relationship.
Issues
[10] The issues to be decided in the Divorce trial are:
(a) Divorce;
(b) A claim by each parties for a restraining order; and
(c) Spousal Support as claimed by Ms. Coleman.
Positions of the Parties
(a) Divorce
[11] Neither party opposes the Divorce. The final date of separation is agreed upon.
(b) Restraining Order
[12] Both parties seek restraining orders prohibiting the other from contacting or communicating with the other.
[13] Mr. Booth alleges that he was falsely accused and criminally charged as a result. As a result of these accusations he asks that Ms. Coleman not implicate him in her contacts with third parties and professionals.
[14] Ms. Coleman maintains that the restraining order she seeks is necessary given the criminal charges and the two resulting peace bonds. She alleges the relationship was one of physical and emotional abuse of her by Mr. Booth. Since separation Ms. Coleman takes the position that Mr. Booth has contacted the University, her building superintendent and members of her family, so that a restraining order is required.
(c) Spousal Support
[15] Ms. Coleman asks for an order for spousal support. She claims she has need and that while Mr. Booth does not have the means, he is under-employed or, deliberately not employed in order to avoid his support obligations.
[16] Ms. Coleman claims entitlement based on the objectives of support and the factors as set out in the Divorce Act, R.S.C. 1985, c. 3 (as am.).
[17] Ms. Coleman claims that Mr. Booth should pay her support to the end of her degree programmes for the Bachelors of Arts (2012) and for the Master’s Degree (2015). She maintains that support should be calculated on $35,000 a year for Mr. Booth as imputed income based on his historic earnings.
[18] Mr. Booth takes the position that he does not have the means to pay spousal support given that he is in debt and, given his personal circumstances. He is not employed and is on social assistance. He takes the position that as a result of the ongoing legal issues between the parties he is not able to work. He also claims that the sales business he operated while the couple were married gradually slowed down and then ended once the principal source of his sales retired.
[19] Mr. Booth takes the position that there should be no support order made. He maintains Ms. Coleman is also employable and has managed to be self-supporting with social assistance and her bursaries, student loans and part-time employment.
Analysis
(a) Overview
[20] At trial I heard the evidence of Mr. Booth, Ms. Coleman and her son, Kyle. Also entered through the evidence of the parties were several exhibits.
[21] The parties agreed that the evidence in the Divorce Proceeding and the Civil Action should apply to both trials.
[22] In their testimony, the parties agreed on very little. Mr. Booth was vague in his examination in chief and for the most part, failed to substantiate his current financial position with supporting documentary evidence. For example, he testified that he was in arrears of his child support but failed to produce a current statement of arrears from Family Responsibilities Ontario.
[23] Ms. Coleman, on the other hand, aided by counsel in the family proceeding, was better prepared and better documented. In her testimony when she gave evidence in chief she was detailed, gave clear answers and appeared to have a good recollection of events and circumstances. In cross-examination she was frequently argumentative with Mr. Booth and her responses were frequently “I don’t recall”. In summary, she put all the blame for the breakdown of the marriage squarely on Mr. Booth.
[24] Mr. Booth’s position is that Ms. Coleman took advantage of him and orchestrated the events that led to their separation. He says she then fabricated the assault allegations so that these could be used to her advantage.
[25] I find that the versions of both parties lacked credibility so that I did not have the full story, only what each of them believes. I found Ms. Coleman to be less forthright and rigid so that her version of the events lacked the ring of credibility. She was clearly argumentative with Mr. Booth in both proceedings. As for Mr. Booth, in both trials he was more willing to concede an error when challenged. I was left with the impression that he too was less than forthcoming about his efforts to be working. He is, I find, manipulating his non-employment status to his advantage.
[26] What is clear is that neither has any respect for the other. Their anger and animosity toward one another fuelled this litigation and in a perverse way has perpetuated their ongoing relationship and attempts to get even with the other for the wrong they perceive done by the other.
[27] Kyle Dell who testified, is the son of Ms. Coleman. He perhaps was the most honest in his testimony. He testified with respect to the first incident which gave rise to the first separation. In the end he conceded that he was very young when the parties separated so that his recall was compromised by the passage of time. Even if I accept his evidence it only goes to the restraining order.
(b) Divorce
[28] I am satisfied that there has been a breakdown of the marriage of the parties by virtue of the fact that at the date of this trial they have been separated almost 7 years (August 2012) and were living separate and apart at the commencement of these proceedings.
(a) Restraining Order
[29] While this is a divorce proceeding, relief is sought by both parties pursuant to the Family Law Act, R.S.O. 1990 c. F.3, as am. Section 46 for a restraining order against the other.
[30] Section 46 is discretionary and provides no guidance as to when a restraining order should be made. It should not be made simply because the parties do not get along and there is “potential” for harassment. There must be some objective and factual basis for a conclusion that there exists a reasonable danger that one spouse will molest, annoy or harass the other.
[31] Mr. Booth’s evidence on this claim was vague and unsubstantiated. While I appreciate that he harbours a concern it seems to relate to the litigation. He described Ms. Coleman making “unsubstantiated” and “false” allegations. There is no evidence, apart from his expressed concerns that Ms. Coleman will continue to molest, annoy or harass him. Apart from their ongoing contact through these proceedings, I am satisfied that since the last separation Ms. Coleman has not harassed Mr. Booth to the extent that there is an objective and factual basis for his expressed fears.
[32] I accept Ms. Coleman’s evidence that she has moved on with her life and relocated to another jurisdiction. From her testimony I cannot but conclude that she harbours deep resentment toward Mr. Booth.
[33] With respect to Ms. Coleman’s claim I am obliged to assess whether there is an objective and factual claim for the relief she seeks. In exercising my discretion, and based on the evidence, I am of the view that there should be a restraining order against Mr. Booth as sought. Ms. Coleman satisfied me that following the separation Mr. Booth contacted Ontario Works and the University she was attending informing them of his ongoing issues with Ms. Coleman. Mr. Booth also attempted to engage in communication with Ms. Coleman’s son concerning his mother. He also acknowledged that he involved his former spouse in an effort to anonymously contact Ms. Coleman electronically. Mr. Booth did not appear to see his actions as inappropriate or harassing.
[34] Mr. Booth’s conduct is simply not acceptable. At the end of the trial, while Mr. Booth expressed that he was glad this matter is over, the evidence gives me factual basis to find that reasonable danger continues to exist that Mr. Booth may annoy or harass Ms. Coleman. As a result, I make the restraining order as against Mr. Booth.
[35] While Mr. Booth alleges that Ms. Coleman continues to malign him by making false allegation, apart from her consultations with professionals, I find that Ms. Coleman’s private and professional consultations are in no way a harassment. Both Ms. Coleman and Mr. Booth should be allowed to refer to the failed relationship in consultation with third parties for their personal health and care for medical and therapeutic purposes. They should not, however, be making scurrilous allegations implicating the other.
(c) Spousal Support
[36] The major issue in this case is Ms. Coleman’s claim for spousal support.
[37] Ms. Coleman came to Canada to join Mr. Booth when they married. She left the United States and the proximate contact she had with her children who resided with their father in the United States. She also left her employment. While the parties were married Mr. Booth was the primary earner.
[38] Ms. Coleman’s son, Kyle, testified that he and his siblings lived with their father but spent time with Mr. Booth and Ms. Coleman during the summer and for major school breaks.
[39] Ms. Coleman testified that when she came to Canada the arrangement had already been in place that the children were living with their father. She was then paying her former spouse child support. That arrangement continued after she came to Ontario to join Mr. Booth.
[40] It is fair to say that for some 2 ½ months in the summer, during the Christmas season and March school breaks the children resided in the home of Mr. Booth and Ms. Coleman.
[41] Mr. Booth has two children, Brandon and Matthew, from his former marriage. Brandon is disabled with cerebral palsy. The children reside primarily with their mother but enjoy a regular and frequent visitation arrangement with their father. Mr. Booth is ordered to pay $ 1132 per month for the two boys. He has not been paying support now for over a year and testified he is seriously in arrears. While he provided no record of arrears, I accept this evidence on that point as it was not seriously contested.
[42] Prior to coming to Canada, Ms. Coleman, by her own testimony, has a length history of working outside the home in the United States, including working in retail in women’s clothing and lingerie. Before her marriage to Mr. Booth, Ms. Coleman was self-supporting.
[43] Ms. Coleman’s family lives in the US and apart from her desire to join Mr. Booth she had no other connection to Canada.
[44] It was submitted that Mr. Booth asked her to leave the United States. There was no evidence that once she came to Canada and realized the circumstances of the relationship she wanted to or sought to return to her country of origin. There was no evidence of any restriction on her returning to the United States. In fact the evidence was such that even when the relationship was strained Ms. Coleman testified she wanted Mr. Booth to sponsor her status in Canada.
[45] Before coming to Canada the evidence supported her position that she was involved in an accident where she suffered injury in the workplace. The resulting claim was settled and she received financial compensation of approximately $15,000.
[46] She came into the marriage with those funds and testified she used some of the money to purchase a computer for Mr. Booth’s business. Her position is that she made a contribution to the marriage and to Mr. Booth’s business venture. Mr. Booth, on the other hand, minimized her involvement in it and testified he wanted her to get a job outside the home.
[47] When Ms. Coleman joined Mr. Booth in Canada she came as a temporary resident. Prior to leaving the United States, Ms. Coleman was charged with driving under the influence and that record disabled her from getting immigration Status in Canada. In October 2002 she testified she was in a position to be sponsored by Mr. Booth. His evidence was that he signed the requisite form. She testified that he then refused to complete the financial declaration portion. While there was dispute as to who was responsible for the delay in processing the immigration application it appeared that during this period the parties were having personal difficulties. Mr. Booth was naturally reluctant to put himself on the line as Ms. Coleman’s sponsor if there were difficulties between them. In any case, in October 2004 the application was processed.
[48] Until Ms. Coleman obtained Canadian status she was employed in part time work which Mr. Booth arranged for her. She also claimed that she worked for Mr. Booth and that while he used her for income splitting purposes, she was not paid directly by him.
[49] She testified she was of assistance in his business which he operated out of the home. To substantiate her position she testified that she knew his business contacts, his accounts and dealt directly with them. It was Mr. Booth’s evidence that any knowledge Ms. Coleman had of his business operation was because he ran it out of the house. She used his office and the computer for her personal matters and would answer the telephone. From the evidence Ms. Coleman was involved in the operation of Mr. Booth’s business but I find it was not extensive or such that it augmented his income. There was no such evidence that the functions she performed increased Mr. Booth’s income or at the end of the relationship left the business in an economic advantage to Mr. Booth.
[50] Following the separation of the parties, Ms. Coleman obtained landed status but did not profer evidence as to her attempts to find employment. Ms. Coleman said that post separation she was able to obtain Social assistance and also was able to get public housing. She subsequently got a job doing a study for Ontario Works. Once in the Kitchener-Waterloo area, she returned to University where she enrolled in a Bachelor of Arts programme in Anthropology and Sociology. She has now enrolled in a Master’s Programme.
[51] Ms. Coleman testified when she put her mind to the jobs she wanted to do, she decided to further her education. Since separation she has been supporting herself doing small jobs and with Ontario Student Assistance Plan (OSAP) bursaries and loans.
[52] It is not in dispute that Mr. Booth has not contributed to Ms. Coleman’s support since separation. Ms. Coleman’s position is that as a result he has not honoured his sponsorship obligation.
[53] It is acknowledged that this was a short marriage of 5 years. For the most part, I find that Mr. Booth supported Ms. Coleman during the period.
[54] Ms. Coleman maintains she is entitled to spousal support. It was submitted that she immigrated to Canada with a considerable disruption to herself and her ability to work in Canada when she arrived. While that may be so, I find that she made the choice to join Mr. Booth, knowing that she would face these restrictions and knowing that Mr. Booth had obligations to his first family and she to hers.
[55] It was alleged by Ms. Coleman that in January 2003 Mr. Booth threw her against a door jamb causing her to injure her arm and shoulder. She said she was physically disabled as a result. No medical evidence was called to support the claim and I had nothing but Mr. Booth’s word against Ms. Coleman’s. Ms. Coleman’s son testified that his mother hurt herself in the altercation in 2003 when she hit a door. In the end he said that this took place some nine years ago when he was 14 years old and that he had no clear recall as to what happened. Kyle recalls he was outside of the house in the cold that evening but did not remember how that came to be. It was also submitted that as a result of her injuries Ms. Coleman was unable to work. There was no conclusive evidence on this point.
[56] To further her claim for support Ms. Coleman relies on the work she did in Mr. Booth’s business. Mr. Booth minimized the work that she performed but acknowledged that while they were married he split his income with her for income tax purposes and used it for their day to day expenses. While she maintained that she worked with and for Mr. Booth, there was no evidence that her working with him increased his gross income for those years. Ms. Coleman complained that she was not paid by Mr. Booth and that he controlled all the funds. While that may be so, during the marriage she had no other source of support other than Mr. Booth and his endeavours. It was also clear from the evidence that Ms. Coleman’s children were with them for some 2 ½ months during the summer and at other times when they had school breaks. During this time Mr. Booth’s income provided for the household and for Ms. Coleman’s children.
[57] Ms. Coleman testified that she made efforts following separation to negotiate the issue of spousal support. No agreement was ever entered into.
[58] I credit Ms Coleman for going back to school in an effort to be self supporting. While she has incurred student loans in doing so, since the parties’ separation she has fulfilled her obligation to become self-sufficient. While there were numerous interlocutory motions in this action and in the civil claims between the parties, Ms. Coleman did not seek an order for temporary support. That is not fatal to the claim she now makes but taken together with the fact that she has managed financially impacts entitlement to support. Using the resources available to Ms. Coleman she has been self supporting since separation and in addition, contributed to the financial support of her children, until the last child became independent.
[59] Turning to Mr. Booth, he is now unemployed. I accept his evidence that in 2006 when the person who was his primary source of work retired, his business also began to suffer and then tapered off until it totally dried up. He has not, however, satisfied me that he has made efforts to work. Mr. Booth testified that he was depressed and consumed by this litigation. I accept that he is now on social assistance. His child support is in arrears and he testified that he has numerous debts including for his rent. While he provided little backup to support his oral testimony, his position is that he has no means to provide support even if so ordered.
[60] On behalf of Ms. Coleman it is argued that his timing and actions are deliberate so as to avoid his obligations.
Analysis of the law on spousal support to the facts
[61] The factors and objectives of ss. 15.2 (4) and (6) of the Divorce Act regarding spousal support are:
Factors
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.
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.
[62] No single objective predominates; rather, as set out in Fisher v. Fisher, [2008] ONCA 11, all four objectives must be considered in the circumstances of the particular case: See Moge v. Moge at para. 52; Bracklow v. Bracklow at para. 35 and Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303 at para. 39.
Considering the Factors
15.2 (4)(a) Length of the cohabitation
[63] A determination of the “condition, means, needs and other circumstances of each spouse” includes consideration of the length of the parties’ cohabitation. Pursuant to the Guidelines, Spousal Support Advisory (SSAG), which I will discuss later, this is, I find, a relatively short marriage and was a second marriage for both parties.
15.2(4)(b) Functions performed during cohabitation
[64] Mr. Booth and Ms. Coleman gave different versions as to their functions during the marriage. It appeared that Mr. Booth worked mostly from home. Ms. Coleman testified that she helped him extensively in his business. She also argued she worked with and for Mr. Booth and advanced his sales and business. His evidence was that it was minimal. I was unable to find any economic advantage to Mr. Booth other than the fact that it allowed for income splitting and income tax savings to the couple. Neither party provided information as to their non-economic responsibilities and household chores during the marriage. As a result I must conclude that this is not an issue for me to consider. Ms. Coleman did not argue that any assumption of household responsibilities negatively affected her career goals.
15.2(4) Other circumstances
[65] The court is required, as to consider other factors, including the means and needs of the parties. One important factor in this case is Mr. Booth’s responsibility to his children and Ms. Coleman’s to hers. Ms. Coleman provided financially for her children and Mr. Booth for his. In addition, I find that Mr. Booth bore the financial responsibility of the household and therefore provided financially for Ms. Coleman’s children when they were with them for a little more than 2 ½ months a year.
Objectives: Section 15.2(6)
[66] In considering entitlement I also looked at the economic objectives of spousal support as set out in the Divorce Act.
[67] Section 15.2(6)(a) directs me to examine economic advantage or disadvantage arising from the marriage. It is the foundation for the principles of compensatory support as developed and flowing from Moge.
[68] In this case, the parties formed a relationship of financial interdependence, when Ms. Coleman moved to Canada. (Mr. Booth in his evidence maintained that he was the victim of Ms. Coleman’s manipulation. Mr. Booth testified that she was using him, the marriage and their reconciliation with Ms. Coleman’s sole objective to become a Canadian citizen. Following what Ms. Coleman described as “a brutal attack” on her in January, 2003 Ms. Coleman did not move back to the United States. Instead the parties reconciled. I find that once Ms. Coleman entered Canada she never addressed returning to the United States where she would have had the support of family and friends and better prospects of employment.
[69] In my assessment of the evidence the financial relationship evolved with both parties contributing to the economic unit.
[70] While Ms. Coleman complains of not being in great health and being disabled as a result of Mr. Booth’s assault and domination. I am not able to so find. She had proven ability to work, and a good past work record. She now has no dependents She has an excellent academic record which will serve her well in the future. While she is now capable of being employed, and therefore self-sufficient, she has chosen to continue in an academic pursuit for another two or three years.
[71] In this case, given the now seven years of separation, I find that Ms. Coleman has transitioned from the five year marriage to an independent and self-sufficient lifestyle without any financial reliance on Mr. Booth since separation.
[72] Was Ms. Coleman economically disadvantaged by the marriage to justify a support order and by the breakdown disadvantaged as to the past and future? In my assessment of the evidence, Mr. Booth, more than Ms. Coleman, suffered an economic downward spiral turn post breakdown.
[73] In looking at her present financial situation, I cannot find that Ms. Coleman’s standard of living was significantly reduced after the final separation. She remained in the former matrimonial home (subsidized housing) until she was able to secure similar accommodation for herself. She testified to being hungry after the breakdown and to relying on the food bank, however she led no evidence as to what attempts she made to then become self supporting or become employed. More importantly, she did not seek temporary spousal support.
[74] The evidence was also clear that at no time following either the first or the second separation did Ms. Coleman ever want to, or attempt to return to the United States, where her children lived with their father, where her family resided and where she had work experience and connections.
[75] In the end, I find that if there were any economic disadvantages which reduced Ms. Coleman’s standard of living following the marriage breakdown, they were minimal.
15.2(6)(c) Economic hardship
[76] Did Ms. Coleman suffer economic hardship from the marriage breakdown? I canvassed the case law that discusses the distinction between economic hardship and economic disadvantage. Mr. Coleman testified to her poor economic circumstances following the last separation. However, as I set out above, she did not make any claim for temporary support and found means to modestly support herself.
[77] In this case, on the evidence as put before me, I am not able to conclude that Ms. Coleman suffered “hardship” or a reduction in her standard of living. Moreover, under the objectives of self-sufficiency, Ms. Coleman has clearly moved on and appears to be content to pursue her education with specific career objectives.
15.2(6)(d) Self-sufficiency
[78] Section 15.2(6)(d) of the Divorce Act promotes the objective of economic self-sufficiency only if it is “practicable” to do so and where the objective can be realized “within a reasonable period of time”.
[79] As the Court of Appeal held in Fisher v. Fisher, supra,:
“Self-sufficiency is often more attainable in short-term marriages, particularly ones without children, where the lower-income spouse has not become entrenched in a particular lifestyle, or compromised career aspirations. In such circumstances, the lower-income spouse is expected either to have the tools to become financially independent or to adjust his or her standard of living.”
[80] That I find is the case here. There was no credible evidence of merger of economic life-style or long term consequences that one would find in long-term marriages where there was long term economic imbalance. As stated by, L’Heureux-Dubé J. in the following passage from Moge:
Although the doctrine of spousal support which focuses on equitable sharing does not guarantee to either party the standard of living enjoyed during the marriage, this standard is far from irrelevant to support
[81] In the end, on the facts, as I find them here, it is reasonable to expect Ms. Coleman to adjust her standard of living to one commensurate with her own income. I arrive at that conclusion by balancing of all the objectives and factors.
Summary of objectives
[82] In summary, I find Ms. Coleman suffered no established economic disadvantage arising from the marriage either by the assumption of household responsibilities or in any other way that compromised her career or educational aspirations. Any minimal disadvantage cannot be compared to that of a long-term traditional spouse who made career sacrifices to the significant advantage of the other spouse.
[83] Counsel for Ms. Coleman referred me to the SSAG guidelines and a series of Support Mate Calculation with income ranges for Mr. Booth at $36,417, $44,417, $36,689, $80,497, $34,767, $64,744 and an income of $13,584 for Ms. Coleman. It is submitted that income be imputed to Mr. Booth. The resulting range of support to Ms. Coleman is $0 a month at the lowest end to $432 at the highest without factoring child support. The formulas result in a duration of 2.5 to 5 years from the date of separation.
[84] I agree with the submission of counsel for Ms. Coleman that the SSAG’s are useful to the court in exercising its discretion on spousal support. However, as set out in Fisher v. Fisher, supra and in Yemchuk v. Yemchuk (2005), 2005 BCCA 406, 16 R.F.L. (6th) 430 (B.C.C.A.) the guidelines are neither legislated nor binding. They are advisory only. As Lang J.A., said in Fisher v. Fisher, “they will not apply to atypical cases”. Mr. Booth is now not employed, living in subsidized housing, and by his own admission, in debt. His business has no value. I cannot, however, but find that he is unemployed and now even in debt by choice rather than by circumstances. Even if I were to attribute income to Mr. Booth, I find this is not a support case.
[85] I find that this is one of those “atypical” cases where the circumstances simply do not warrant a spousal support order pursuant to the Guidelines. I come to that conclusion for the following reasons:
(a) prior to the marriage Ms. Coleman was self supporting
(b) during the early part of the marriage relationship, the only reason Ms. Coleman was not able to be employed was as a result of her immigration status
(c) the parties have now been separated for almost 7 years without support orders, agreements or interlocutory claims by either of them
(d) this was a short marriage so, if I consider the factors and the objectives of ss. 15.2 (4) and (6) of the Divorce Act, spousal support is not, in these circumstances appropriate.
[86] The unfortunate reality here is that even if I made an order for spousal support, I find that Mr. Booth could not pay it.
Conclusion
[87] (a) Based on separation the divorce is granted to both parties.
(b) In exercising my discretion I am of the view that based on the facts as I find them and Ms. Coleman’s objective claim, an order restraining Mr. Booth from annoying or harassing Ms. Coleman is appropriate and I so order.
(c) After reviewing the facts as I find them, the factors and objectives required and balancing the circumstances of the parties including the duration of their cohabitation, their standard of living while living together, their ages, their incomes and prospective incomes, their careers, their current circumstances as well as their reasonable future expectation, I make no order for spousal support.
KRUZICK J.
RELEASED: January 31, 2013
COURT FILE NO.: 06-FD-312958
DATE: 20130131
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
KEVIN BOOTH
Applicant
– and –
TAMIE COLEMAN
Respondent
REASONS FOR JUDGMENT
KRUZICK J.
RELEASED: January 31, 2013