COURT FILE NO.: 30760
DATE: 20140108
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Douglas Alan Djalal Skinner Couper
Self- represented
Applicant
- and -
Bernice Nadranie Brijmmohan Couper
Amarnath Misir, for the Respondent
Respondent
HEARD: April 16, 17, November 4, 5, 6, 2013
REASONS FOR JUDGMENT
Justice Thomas A. Bielby
INTRODUCTION
[1] The parties herein are husband and wife. They married on June 10, 1989. In the application, issued July 18, 2008, the applicant alleged the parties separated on April 1, 1994. The applicant sought custody of the children and a divorce.
[2] There are two children of the marriage: Steven, born October 26, 1990 and Robert, born June 9, 1993.
[3] The original answer was filed on December 14, 2009, and alleged a separation date of February 14, 1999. The respondent claimed a divorce, custody of the children and spousal and child support. In an amended answer, filed March 31, 2010, the respondent asked for an equalization of net family property.
[4] When the trial commenced, custody of the children was not an issue given the ages of the children. Child support was previously resolved.
[5] With respect to the equalization claim, there is a limitation issue. Section 7 of the Family Law Act includes a limitation period for an equalization claim. The claim must be brought within six years from the date of separation.
[6] Clearly, the claim for equalization was not brought within six years of separation.
[7] Section 2(8) of the Family Law Act allows a court to extend the time limit if the court is satisfied that:
a. there are apparent grounds for relief,
b. relief is unavailable because of delay that has been incurred in good faith, and,
c. no person will suffer substantial prejudice by reason of the delay.
[8] The respondent is asking the Court to extend the time limit to allow her to assert her claim for equalization.
[9] There is a third separation date to be considered. The parties entered into Minutes of Settlement on January 24, 2011. The judicial endorsement of the same date, reads"Consent order to go in terms of Minutes of Settlement filed."
[10] The consent order resolved the issues of custody and child support. More importantly, for our purposes, Section 1 of the Minutes reads"The Applicant and the Respondent commenced living separate and apart on or about January 1, 1996."
[11] At the time of the consent order, the respondent was represented by counsel.
FACTS
[12] The parties met in Toronto in December, 1984. At the time, the applicant was living at 573 Elliott Crescent, Milton, Ontario. The applicant was employed with Immigration Canada, and the respondent with a bank. She was also attending night classes at the University of Toronto.
[13] The applicant had been previously married and from that relationship, a son, David, was born in 1979.
[14] In 1987, the parties commenced co-habitation at the applicant's home in Milton.
[15] The respondent testified that it was her assumption that at the time they commenced co-habitation, the Milton property was owned together, as she put it. The basis for this assumption is unclear.
[16] The property was owned by the applicant before the parties met.
[17] As noted, the parties were married in June, 1989.
[18] The respondent continued her employment and schooling in Toronto and commuted between Milton and Toronto daily.
[19] In February, 1988, the respondent obtained part time employment at the RBC in Milton and gave up her Toronto employment. She also worked other jobs in Milton through an employment agency.
[20] In November, 1988, the respondent obtained full time employment with Nortel in Milton, and continued to work part time at the RBC.
[21] The respondent testified that she was responsible for all the household chores including cleaning, cooking and shopping. She testified that she continued in that role until she left the home in 2000.
[22] Steven was born in 1990, and after that the respondent quit her job at Nortel, but continued working part time at the RBC. The respondent testified that the applicant told her to quit her employment with the RBC and stay home with the child until he was in pre-school.
[23] In 1990, the applicant quit his job with the federal government and went into a private immigration consulting business. The respondent returned to part time work with the bank to keep the income flowing.
[24] It was the testimony of the respondent that all the bills for the house were in the applicant's name. The applicant would add up the bills and demand the respondent contribute her share of the expenses.
[25] The respondent testified that over time, she became very close to the applicant's mother. In 1990, before Steven was born, the respondent testified that the applicant's mother told her that she did something she was sorry about at the behest of the applicant. The mother went on to say that she did it to please the applicant, her only son. She was sorry she left the respondent out in the cold.
[26] At the time the parties started co-habitating, the applicant transferred title to the Elliot Street Property to his mother, for natural love and affection. Thereafter his mother executed a new will, and left the property to her grandchildren when they turned 25 years of age and named the applicant the executor and trustee of her estate.
[27] It is alleged by the respondent that the applicant's mother in her conversation with the respondent set out in paragraph 25 was referencing her role in regards to the conveyance of the Elliott Street property and her subsequent amended will.
[28] Robert was born in 1993. The respondent continued to keep house, raise the children and work part time. She testified that the applicant was hardly at home because of the business. She did acknowledge that the applicant helped out when she had to go to work.
[29] In 1993, the applicant testified he started some type of distribution business which was not successful. The respondent testified that at this time, the applicant was paying the mortgage, taxes and insurance and she was paying the remaining household expenses.
[30] The respondent testified that by that time, the marriage was difficult, but that she hung in there for the children.
[31] The parties participated in counselling in 1994/1995, but after a few sessions the applicant refused to continue.
[32] The respondent testified that in 1994, the applicant's mother broke her hip and the applicant spent a great deal of time at his mother's home in Burlington, to assist her. She testified that the applicant lived there for a while and occasionally came to see her and the children.
[33] The respondent was unaware of the applicant's finances.
[34] Ultimately, the applicant put his mother in a senior's residence. She passed away in November, 1995. The applicant, as the only child and pursuant to the will, administered the estate.
[35] The respondent continued taking care of the household and the children. She described it as a difficult time for her and thought it was then the relationship broke down.
[36] In 1996, the applicant had a letter sent to the respondent, seeking a separation.
[37] The respondent initially ignored the letter but testified that she kept getting lawyers' letters between 1997 and 1999. There was some type of altercation which involved the police in 1999, and the applicant left the home and did not return to the home very often.
[38] It was the evidence of the respondent that in the years 1996 to 1999, the applicant was living with her at the Elliot Crescent property in Milton. She testified that she and the applicant socialized and took vacations together, yet, as noted, letters were being exchanged between their respective lawyers.
[39] The respondent testified that she retained counsel in 1998.
[40] The parties were members of the Baha'i faith, and in 1999 sought guidance from the Baha'i Assembly. The Assembly in order to approve a divorce required their members to participate in a year of patience before proceeding with a divorce. The year of patience meant that the parties had to be physically separated. For this reason the applicant moved out of the Elliott St. property in April, 2000.
[41] The respondent turned to her family who bought a condominium townhouse in Milton for the respondent and children to live in. It was to be a temporary situation for a year or two. The respondent lived there with the children and was financially responsible for the carrying costs of the unit.
[42] The applicant did not provide any ongoing and regular financial assistance to the respondent. Sporadically, he purchased things for the children.
[43] The respondent remained in the townhouse until 2008, when she was asked to move out by her family because they wished to sell the unit.
[44] The respondent testified that while she lived there the applicant was free to come and go and that she never stopped him from seeing the children.
[45] Throughout this period it was the testimony of the respondent that she struggled financially. She testified that in 2004, she became ill with what she described as internal bleeding that required surgery.
[46] The respondent also suffered from mental health issues, and in 2006 was unemployed and on welfare.
[47] In November 2008, the respondent decided she wanted to return to the Elliott Crescent property with the children. The house was in a bad state of repair. The applicant had commenced renovations some years before. The house had no bathroom or running water, and parts of the house were exposed and open. It was not inhabitable, but the respondent testified she had nowhere else to go.
[48] Initially, the applicant told the respondent that she could not return to the house until she signed a paper saying she had no claim to the property. She refused to do so.
[49] The applicant had an income property on Roseheath Drive in Milton. The respondent went there with the children. The applicant did not like this, so he returned to Elliott Crescent allegedly to complete the renovations so the respondent could move in. The applicant did not complete the repairs and the respondent stayed at the Roseheath property for a year.
[50] When the respondent left Roseheath she had no other option but to return to Elliott Crescent. There was still no running water and the roof leaked. The respondent's family agreed to loan $25,000.00 to the respondent, the monies needed to make the place habitable.
[51] The applicant took the position that nothing could be done to the house without his permission and that any repairs would be at the respondent's expense.
[52] The respondent testified that the applicant did what he could to stop her, but ultimately she got the necessary permit to proceed.
[53] The respondent testified that at one time, the applicant told her when the property sold she would be reimbursed. On one occasion he asked for copies of the repair bills so he could reimburse her, but then used the bills to sue the contractor for devaluing the property.
[54] The respondent wishes to be reimbursed the sum of $25,039.00 to allow her to repay her family.
[55] The respondent terminated her lawyer in 2000, as she could no longer afford him.
[56] In the summer of 2000, she had a one hour consultation with another lawyer. Between 2004 and 2006, she continued to get letters from lawyers for the applicant.
[57] It is the evidence of the respondent that, until October, 2009, the applicant was trying to negotiate with her. Thereafter, the applicant commenced these proceedings.
[58] After the respondent returned to Elliott Crescent, she continued with her health problems. She was on Ontario Works and worked part time when she could. Both children were having school problems which added to the issues with which the respondent had to cope.
[59] The applicant never provided any regular child or spousal support, claiming he had no money. He did pay $500.00 per month for four months when he was pressured by Health and Family Services at a time when the respondent was on social assistance.
[60] With respect to the Minutes of Settlement, the respondent testified that they were prepared last minute and she asked to sign quickly. She testified that the parties did not separate until 2000. When the Minutes were signed, both parties were living at Elliott Crescent. No one outside the family knew what was going on.
[61] The respondent did say that between 1996 and 2000, she felt like she was sleeping with the enemy.
[62] At the time the Minutes of Settlement were executed, the respondent testified that she signed on the advice of counsel, as it was better to get something rather than nothing.
[63] The respondent testified that at the time, she did not care about property and thought the date of separation was a minor thing.
[64] The applicant did not pay the child support as per the Minutes of Settlement, and the matter was turned over to the Family Responsibility Office.
[65] On cross examination, the respondent was taken through her employment history. She worked many different jobs, some full time other part time. In between work, she would receive Ontario Works.
[66] The respondent would like to study at Sheridan College and thought she might like to work as a medical secretary. At her age, however, she did not feel she would be capable of rigorous study.
[67] The respondent described a diagnosis by her family physician called reactive depression and testified that in 1999, she went on short term disability from RBC for that condition.
[68] The respondent testified that she could likely return to work part time, but will never be able to work full time. She needs to get the court proceeding behind her and get stronger.
[69] The respondent testified that she did not expect to be supported forever and that she wants to pay her own way.
[70] Dr. Marion King was called as a witness and testified that she has been the respondent's family physician since 1989. She confirmed the depression and diabetes. The respondent also suffers from ulcerative colitis, high blood pressure, and hypertension and has a general anxiety disorder.
[71] It was the evidence of the doctor that all of the respondent's conditions can be controlled by medication and life style changes. She also said that with respect to the mental health issues, the respondent has a major depressive disorder and there have been times that her condition has affected the respondent's ability to function well.
[72] The doctor has referred the respondent to the North Halton Medical Health Unit and she underwent an assessment in March, 2012.
[73] The respondent has applied for ODSP, and at the time of trial was awaiting a decision.
[74] The applicant called as a witness his son, David. He testified that the Elliott Crescent property is owned by him and his two brothers, Steven and Robert. They inherited the property from their paternal grandmother.
[75] David, who is now 34 years old, did not discuss the property with his grandmother before her death. Now it would appear he wishes to have the property sold. He is worried the property is being used as leverage.
[76] The applicant testified that he bought the Elliott Crescent property in December, 1982 for $73,000.00. There was a $45,000.00 mortgage and the rest of the funds were borrowed from his mother.
[77] By 1984, the property was mortgage free through gifts from his mother.
[78] In 1987, the applicant purchased the Roseheath property.
[79] The Elliott Crescent property had been rented out, but the tenants moved out because of a carpenter ant problem. In 1987, the applicant commenced renovating the house, which was to include a new bathroom.
[80] The applicant testified that he asked the respondent to move in with him in 1987 so they could get to know each other better. He did not charge her rent but asked her to contribute to the utilities. They shared the cost of food. He did not think, though, that they were living together. The parties maintained separate bedrooms and shared financial costs.
[81] The applicant applied for mortgages in 1988. At Exhibit 3, Tab 19 is a mortgage application dated November, 1988 for $85,000.00. The applicant was unclear as to what he did with the money. He believed the next year his mother paid it off.
[82] The applicant testified that in the early 1990's there were problems in the marriage and by the time his mother died, the problems were worse. The applicant's coping strategy was to leave the house.
[83] The applicant sold his mother's house when she moved into the retirement home and used the money to pay for her care.
[84] In 1994, he was torn between helping his mother and saving his marriage. In April 1994, the applicant decided the marriage was not working. Some counselling was undertaken but by the fall, 1994, the applicant had concluded the marriage was over.
[85] The applicant in May, 1995, retained counsel and stopped any intimacy with the respondent. By 1996, the applicant believed he and the respondent were separate and apart under the same roof. They maintained separate bedrooms.
[86] The applicant would spend time at the Roseheath property and return home to see the kids. He testified that he did the housework and laundry. The parties maintained separate bank accounts and finances.
[87] The applicant testified that between 1996 and 1999, letters were going back and forth between the lawyers and proposals were exchanged.
[88] After his mother's death in 1995, the applicant inherited $240,000.00 and by 2006, it was all gone. In 1999, $20,000.00 was used to install a new kitchen at the Elliott Crescent property.
[89] During the mid to late 1990's, the applicant explored various businesses without any success and he concluded that he had no head for business.
[90] The applicant testified that in August 2000, he gave Steven a cheque for $4,000.00 for his mother, because he was told by Steven that unless they got money the children would have to go to the CAS.
[91] The applicant testified that they had talked of him paying more money, but that he wanted an agreement.
[92] In 2006, the applicant commenced a job with the Halton School Board where he remains today. To that point, the applicant testified that he was living on credit cards and his inheritance.
[93] About that time the respondent was talking of returning to Elliott Crescent as her family wanted to sell the Wilson property. The Elliott Crescent property had been empty for over a year and the repairs were not finished.
[94] The applicant testified that there were discussions about finishing the repairs, but that the respondent had to recognize the children had an interest in the property.
[95] The applicant acknowledged that the respondent retained a contractor to repair the Elliott Crescent property, but testified that he did not think all the work was necessary.
[96] The applicant did not consent to the work, explaining that as executor of his mother's estate, he was concerned the property would be encumbered before it was conveyed to the children.
[97] In regards to the divorce, the applicant testified that there is no chance of reconciliation. At Exhibit 5, Tab 1, page 4 is a copy of the marriage certificate and the facts therein are true.
[98] When the respondent was pregnant with Robert, the applicant worked at Nortel and took paternity leave. Thereafter, the job vanished as Nortel went out of business.
[99] He went on Employment Insurance for a while, and then became involved in an auto body supply business. Very little money was made in that business.
[100] The applicant currently works, as noted, with the school board and states he earns between $50,000.00 and $60,000.00 per year. He is currently 68 years of age.
[101] On cross examination, the applicant agreed that his mother discharged all the debt on the Elliott Crescent property. She told the applicant she was getting older and since the applicant was her only child she decided to pass some money along to him.
[102] On her death, except for Elliott Crescent property, her estate was bequeathed to the applicant.
[103] Thereafter the applicant put an $85,000.00 mortgage on the Elliott Crescent property, but had no recollection as to what the funds were for. He agreed that in 1988 a mortgage went on the Roseheath property to pay off the mortgage on Elliott Crescent.
[104] The applicant could not recall the value attributed to the Elliott Crescent property for probate purposes.
[105] The applicant agreed that he did some strategic planning before he married the respondent, being his second marriage. That is why he prepared the list of assets and liabilities (Exhibit 5, Tab 1). He describes that he made a mistake in not seeking legal advice before his marriage to the respondent.
[106] The applicant agreed that his mother liked the respondent and would come to the Elliott Crescent property at least once per week.
[107] He testified that his mother gave him money and that she was very generous. The applicant denied that the terms of his mother's will in regards to the Elliott Crescent property were inserted at his direction.
[108] The applicant testified that he never slept in or occupied the master bedroom. He only went in there for sexual relations. None of his clothing was kept in that bedroom.
[109] He testified that all intimacy ended once Robert was conceived.
[110] When the respondent returned to Elliott Crescent, the applicant agreed that a lot of work needed to be done. He stated that he did not want the contractor to work on the property, but also acknowledged he had previously retained the same contractor to do some work. He considered his work to be satisfactory.
[111] The applicant agreed he told the contractor to stop after he had substantially completed the work.
[112] The applicant wanted to do the work himself. In that regard I note that the applicant had years to complete the work and had done nothing. I also find that, given the inheritance he received, he had the financial ability to make the repairs. I suspect he had no intention of making the repairs unless and until the parties had reached an agreement on the terms of the separation. The bathroom had been torn up for eight years.
[113] Mr. Nonis was the next witness. He is a real estate agent. He was familiar with property and testified that the average price of homes such as the one at Elliott Crescent sold for $450,000.00. In the year 2000, the price would have been around $200,000.00. Included in the respondent's Exhibit 3, Tab 18 is the listing for 671 Elliott that sold for $240,000.00 in July, 2000.
ANALYSIS
DATE OF SEPARATION
[114] With respect to the date of separation, I rely on the consent order of January 24, 2011, made in accordance with Minutes of Settlement of the same date. The date of separation therein is January 1, 1996.
[115] The respondent at the time had the benefit of counsel. She was well aware of the date of separation set out at paragraph 1. The respondent submits the real date was in the year 2000, but in her answer, both the original and the amended version, she claimed the date of separation was in 1999.
[116] She testified at trial that by 1993, she knew the marriage was in trouble. The parties had marriage counselling in 1994/1995.
[117] Shortly after the death of the applicant's mother in 1995, the respondent had to cope with the children and the house at a time when the applicant was involved in the administration of his mother's estate. She formed the opinion then that the relationship had, in her words, broke down. The respondent testified that she felt like she was sleeping with the enemy.
[118] The respondent in 1996 received a letter from a lawyer on behalf of the applicant addressing the separation and the issues that arise from it and advised the applicant would be seeking a divorce.
[119] Thereafter, for a few years there was an exchange of lawyers' letters, presumably discussing the terms of the separation.
[120] While the parties may have continued to reside together on the same property until 2000, I believe there is sufficient evidence to corroborate the separation date of January 1, 1996, the date agreed to and which was included in an order.
[121] With respect to the period of patience, such a period is a faith requirement and necessary for the divorce to be approved by the Baha'i Assembly. It does not, however, define the date of separation for our purposes. To be separate and apart spouses can continue to live under the same roof. For the year of patience the parties, it would appear, have to be physically separated.
LIMITATION EXTENSION
[122] The original answer was filed on December 14, 2009. The claim by the respondent did not include a claim for equalization. The amended answer, filed March 31, 2010, contained an equalization claim.
[123] Therefore the equalization claim was made 14 years after the parties separated, and eight years after the limitation period expired.
[124] The respondent first retained counsel in 1998, two years after the separation, and years before the limitation period expired.
[125] The purpose of retaining counsel was to address the issues arising from the separation.
[126] When the Minutes of Settlement were signed, the respondent testified she had no interest in the property, and I took that to mean no interest in pursuing a property claim.
[127] Against all of this I am prepared to find the following. The applicant was at all times interested in protecting his financial interests. I find that the transfer of the Elliott Crescent property was done solely to protect the property from any claim by the applicant. There was no other reasonable explanation put forward. The applicant's mother had removed all the encumbrances on the property and the applicant admitted his mother wanted to benefit the applicant financially as she was getting old and the applicant was her only child. The applicant had no financial reason for conveying the property to his mother.
[128] I accept that the applicant's mother had the conversation with the respondent wherein she apologized for what she had done. While it is hearsay, on the principled approach alone, the evidence would have been admissible. The applicant's mother was deceased and the evidence was relevant.
[129] The transfer took place in proximate time to the marriage.
[130] I find that at the date the property was transferred to the applicant's mother, the applicant continued to be the beneficial owner of the Elliott Crescent property.
[131] Once his mother died, however, the issue becomes complicated.
[132] There are three other persons who could claim an interest in the property. One, David, was a witness. They were not parties to these proceedings, and a finding that on the day of separation the applicant continued to have an equitable interest in the property would be a declaration against the interests of the three grandchildren without allowing them to address the issue.
[133] The respondent testified that the applicant seemed to be drawing out the negotiations, implying that perhaps he was aware of the time limitation. This may very well be true.
[134] There were apparent grounds for relief by way of the equalization of net family properties.
[135] Martynko v. Martynko 210 ONSC 5341 is a decision of Hambly J. in which before him was a family law application for equalization brought more than six years after the date of separation. It was determined by the learned judge that the separation date was May 27, 2002, and the wife commenced her application on August 29, 2008, three months after the limitation period expired.
[136] At paragraph 26 of the Martynko case, the Court commenced its consideration in regards to extending the limitation period.
[137] The Court concluded there were likely grounds for the relief sought.
[138] The Court went on to decide the good faith issue. It was noted when the applicant retained counsel the property issue was not advanced until after the expiry of the limitation period. The Court found there was nothing in the evidence to explain why the wife did nothing to assert her rights until she retained counsel more than five years after separation.
[139] At paragraph 33 the Court referenced Rae v. Rae (1987), 59 O.R. (d) 225, a decision of Master Peppiatt, wherein regards to the issue of good faith there must be some positive reason for the delay, such as one solicitor relying on the other solicitor's undertaking not to plead the limitation period, or having a honest but mistaken belief that such an undertaking was made.
[140] At paragraph 34, reference is made to Busch v. Amos, 1994 7454 (ON SC), [1994] O.J. No. 2975 in which Salhany J. stated at paragraph 8,
I agree that the term of good faith means acting honestly and with no ulterior motive. I also agree that failure to act in ignorance of one's rights may in some circumstances amount to good faith. However, in my view, it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make enquiries about those rights. In this case, the applicant in her evidence says that she did not make enquiries about her rights at the time of the divorce because she did not have the money to pay a lawyer. Although she knew that she could obtain a lawyer through the legal aid plan she decided not to do so because she did not want the legal aid plan to put a lien on her property to secure repayment of part or all of the fees that her lawyer would bill to the legal aid plan. In other words, she had the opportunity to consult with a lawyer but deliberately chose not to do so. Had she consulted with a lawyer, she would have probably learned about her right to equalization. I am of the view that she was ignorant of her rights because she chose to be ignorant or wilfully blind. I have difficulty in concluding that this amounted to good faith on her part.
[141] Justice Hambly in the Martynko case reached the same conclusion. The applicant in that case did not take any steps to respond to the divorce application or to contact a lawyer to determine her rights any earlier. He concluded that she failed to satisfy the requirement of good faith for the purpose of extending the limitation period.
[142] Hambly J. also found that there was prejudice as the husband had re-married and re-arranged his financial affairs assuming that all was resolved.
[143] Given the facts before me and the ruling I have made in regard to the date of separation, and after considering the authority presented to me, I am not persuaded to extend the limitation period.
[144] The claim for equalization was not made by the respondent until 14 years after the separation. Even had I accepted her proposed date of separation, the limitation period had still expired some 10 years earlier.
[145] The respondent first retained counsel in 1998, well within the limitation period. If a party is not acting in good faith by doing nothing to retain counsel and learn of her rights, it cannot be said that she acted in good faith when she in fact consulted counsel, and had been presumably told of her rights, yet still did nothing.
[146] I conclude that the respondent has not acted in good faith as required to consider an extension of the limitation period.
[147] On the issue of prejudice, it would seem to me that the longer the period of expiry of the limitation period, the more likely there is prejudice. The onus would be on the respondent to disprove prejudice and the onus has not been met.
[148] For these reasons, I decline to extend the limitation period and the claim for equalization is dismissed.
SPOUSAL SUPPORT
[149] There is no limitation period in regards to spousal support; however, a long delay in making such a claim must be taken into account.
[150] Retroactive, periodic spousal support was not sought by the respondent so I will consider the issue of lump sum support and periodic support moving forward.
[151] I am not persuaded that the applicant has advanced the monies to the respondent that he said he has. I am not sure he has even recognized an obligation to support the respondent as well as the children.
[152] Certainly the applicant has not made recurring payments upon which the respondent could rely.
[153] He made a few periodic payments when pressured by the agents of Ontario Works and he may have periodically acquired things for the children.
[154] Once the applicant's mother died, he chose not to work as he inherited a significant amount of money.
[155] The applicant remained unemployed for an extended period of time and would argue did not have the means to pay support.
[156] I find that during the marriage the respondent was financially responsible for a share of the household expense as well as for the household chores. I find that she was the primary child caregiver. To the extent there is conflict between the evidence of the parties, I choose to believe the evidence of the respondent.
[157] I find that the respondent has health issues, and that since separation she has taken reasonable steps towards self-sufficiency.
[158] I find that the respondent is in need of financial assistance, and the applicant has an ability to pay support.
[159] I find that the respondent did contribute $25,000.00 to the cost of repairing the Elliott Crescent property, at a time, at the very least the applicant controlled the property and that the applicant told her he would compensate her in that regard.
[160] I find that the applicant has the means to pay $25,000.00 and that the respondent has the need for this sum of money so she can repay her family.
[161] Accordingly, I order the applicant pay to the respondent by way of lump sum support the sum of $25,000.00.
[162] In regards to periodic support I find the applicant has an income of $55,000.00 per year. His financial statement dated December 6, 2011 records an income of almost $63,000.00. His financial statement of October 22, 2013, declared an income of $53,000.00. I have therefore found a yearly income within that range.
[163] As for the respondent I will impute a part time income of $20,000.00. She testified that she would like to seek part time work and while she has health issues, there is no evidence she is incapable of working part time. Her doctor testified that her issues could be controlled by medication and lifestyle changes. I am also of the opinion the lack of support and the resultant financial issues play a significant role in the respondent's mental health issues.
[164] Counsel for the respondent asked for support for three years in an amount equivalent to $25,000.00 per year. Retroactive support was not sought. I was not presented with any Spousal Support Guideline calculations. The amount claimed is excessive given the income of the applicant.
[165] My own research, in regards to the Guidelines, suggests a range of $700.00 and $933.00 per month on the incomes referenced.
[166] Taking all of this into account I order that the applicant pay to the respondent spousal support in the amount of $850.00 per month, commencing January 1, 2014. The support is to be paid for three years. At the end of that period the parties will have been separated for 20 years.
[167] A Support Deduction Order is to issue.
[168] A Divorce Judgment is to issue.
[169] If costs are an issue, I will accept submissions in writing within 21 days of the release of this judgment. The submissions are to be no more than three pages in length.
Bielby J.
Released: January 8, 2014