ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-13-5302
DATE: 2014-03-07
B E T W E E N:
Michelle Germaine Margaret Fuerst,
Beth Allison White, for the Applicant
Applicant
- and -
Randy Richard Fuerst,
Tyler Johnson, for the Respondent
Respondent
HEARD: March 6, 2014, at Thunder Bay, Ontario, via videoconference
Mr. Justice D. C. Shaw
Decision On Motion
[1] This is a motion by Ms. Fuerst for an order that Mr. Fuerst pay interim spousal support.
[2] Ms. Fuerst is 52 years of age. Mr. Fuerst is 60 years of age.
[3] The parties began living together in January 1985. They were married on April 16, 1988. They separated on June 19, 2013 after 28 years of cohabitation. There are no children born of the relationship.
[4] After separation, Ms. Fuerst moved away from the parties’ home in Dryden. She alleges that she had to get away from Mr. Fuerst because he was emotionally and physically abusive. She left her job in Dryden, where she was earning approximately $35,000 per year, and moved to North Bay.
[5] In 2011, Ms. Fuerst was diagnosed with cancer and in 2011 underwent two surgeries, including a double mastectomy. After she left Dryden, she was able to claim sick leave benefits through employment insurance due to her health issues. These benefits ran out in September 2013. She has just started to receive regular employment insurance benefits, which she believes will equal her sick leave benefits of $22,256 per year. She says that she is actively looking for employment in North Bay.
[6] Ms. Fuerst’s Financial Statement shows expenses of $3,370 per month including rent of $930 and utilities of $300 per month.
[7] Mr. Fuerst has been employed since 2007 as the director of finance for the Nishnawbe Board of Education in Sioux Lookout. His 2012 income tax return shows total income of $92,865. He has produced a paystub for the period ending February 14, 2014, showing regular earnings of $3,461.54 biweekly. Extrapolated over a year, this would result in an income of $90,000, which is what Mr. Fuerst states is his salary.
[8] Mr. Fuerst resides in Dryden. He commutes each working day to Sioux Lookout, which is approximately a 200 kilometre round trip. Mr. Fuerst states that he has vehicle expenses of approximately $1,600 per month. He submits that he is unable to pay spousal support and to continue to work at his present job because he would be unable to cover his day-to-day and travelling expenses. Mr. Fuerst lives in one unit of a four plex which he and his siblings own. He has a ¼ interest. The four plex was a family gift. Mr. Fuerst has no mortgage payment although he shows an expense for housing in his Financial Statement of $500 per month which he states is his share of utilities and maintenance for the four plex. I find that his housing expenses are modest.
[9] Mr. Fuerst denies that he was abusive towards Ms. Fuerst. He submits that Ms. Fuerst voluntarily quit her employment in Dryden.
[10] Ms. Fuerst is seeking support of $2,574 per month, which is the mid-point of the Spousal Support Advisory Guidelines (SSAG) based on an income of $92,864 for Mr. Fuerst and an income of $22,256 for Ms. Fuerst.
[11] On the hearing of the motion, counsel for Mr. Fuerst advised that he was not disputing Ms. Fuerst’s entitlement to support, but was disputing the quantum claimed. Mr. Fuerst did not propose an alternative amount of support.
[12] Mr. Fuerst contributes not only to CPP and a mandatory pension with his employer but also to a voluntary pension in the amount of $434.63 biweekly or approximately $940 per month. His Financial Statement shows expenses for alcohol and tobacco of $250 per month, meals outside the home of $354 per month and vacation of $150 per month.
[13] Mr. Fuerst’s transportation expenses of $1,600 are significant. He is required to travel 200 kilometres each day for work, as he has done for the past six years, so his gasoline and oil expenses of $729 are understandably larger than normal. However, the balance of the $1,600 monthly transportation expense is comprised of insurance of $125, repairs and maintenance of $100 and a truck loan of $650, none of which is uniquely related to a daily commute of 200 kilometres. I conclude that I should not give undue weight to Mr. Fuerst’s submission that his transportation costs are exceptional and that therefore his circumstances fall outside those contemplated by the SSAG’s.
[14] On the other hand, I take into consideration that Ms. Fuerst’s monthly expenses of $3,370 should also be scrutinized, including hair and beauty costs at $150, entertainment at $100, water at $100 and alcohol at $40, when determining a fair and reasonable interim spousal support amount.
[15] For the purposes of determining spousal support, I base my decision on Mr. Fuerst’s demonstrated 2014 income to date, extrapolated to $90,000 for a full year, rather than his total income for 2012 of $92,864, on which Ms. Fuerst has based her SSAG calculations.
[16] In my view, having regard to the circumstances described, I have determined that Mr. Fuerst should pay support at the low end of the SSAG range for the parties’ respective incomes of $90,000 and $22,256, based on 28 years of cohabitation, in the sum of $2,100 per month, commencing March 1, 2014, without prejudice to the rights of either party with respect to the issue of retroactive spousal support.
[17] Ms. Fuerst shall notify Mr. Fuerst forthwith if she obtains employment and provide Mr. Fuerst with verification of her employment income. If Ms. Fuerst does obtain employment, Mr. Fuerst shall be entitled to a review of this interim order as a matter of a material change in circumstances.
Costs
[18] If the parties are unable to agree on costs, the they shall deliver written submissions, not exceeding five pages, together with costs outlines and pertinent offers to settle, within 30 days. If submissions are not received within 30 days, costs shall be deemed to have been settled by the parties.
___”original signed by”
The Hon. Mr. Justice D. C. Shaw
Released: March 7, 2014
COURT FILE NO.: FS-13-5302
DATE: 2014-03-07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Michelle Germaine Margaret Fuerst,
Applicant
- and -
Randy Richard Fuerst,
Respondent
DECISION ON MOTION
Shaw J.
Released: March 7, 2014
/mls