COURT FILE NO.: FC-12-3063
DATE: 20140320
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Leslie Pratt Armstrong, Applicant
AND
Judy Lorraine Armstrong, Respondent
BEFORE: Mr. Justice McNamara
COUNSEL: Cheryl L. Hess, for the Applicant
J. Alison Campbell, for the Respondent
HEARD: March 18, 2014
ENDORSEMENT
[1] The Applicant Husband brings this motion seeking an order that the Respondent Wife pay spousal support on an interim basis.
[2] The parties were married in October of 1976 and separated in May of 2009. The Applicant is 61 and the Respondent is 58 years of age. They have two adult children, Dane and Corey, who are 30 and 25 years old, respectively.
[3] The Applicant is the sole proprietor of a refrigeration and air conditioning business. He has a Grade 9 education and suggests that he is essentially illiterate. The evidence would suggest that he suffered a heart attack in 2008.
[4] In his materials the Applicant swears that his business income has dropped dramatically in the past two years. In 2013 he suggests his gross income was slightly in excess of $18,000 with a net income of about $1,000. He also receives a CPP retirement benefit of $5,951.
[5] The Respondent’s health is also not the best and at present she is receiving a disability income with a gross payment of $5,000 per month or $60,000 per year.
[6] In his materials the Applicant indicates that there are a number of reasons why his business income has dropped so drastically. First, it is his evidence that there has been a general slowing in the industry and his work volume has fallen off. He’s simply not as busy as he once was. Furthermore, in a report dated February 14 of this year, his cardiologist indicates that: “Given his current functional capacity, I do not think he would be able to work full-time doing heavy physical labour. Part-time work of a less physical degree would certainly be possible…” It is his evidence that there is a heavy physical component to at least some of his work.
[7] The Respondent advances several arguments as to why no amount of spousal support should be awarded.
[8] Firstly, she suggests that the Applicant is capable of earning more income than the amount he says he receives net of expenses. She also argues, quite properly, that there are many deductions that an individual who is self-employed enjoys that need to be added back in when trying to come up with a realistic assessment of the Respondent’s true income level.
[9] Next, again on the issue of the Respondent’s true income, she suggests that he normally does a number of jobs each year on a cash basis which go straight into his pocket.
[10] She also points out that, in effect, she is already paying an amount of spousal support. First and foremost, each month she pays $200 representing the Applicant’s share of a joint line of credit, $39 a month representing his share of house insurance and $45 a month, representing his share of joint medical coverage. She also says that the court needs to take into account the fact that she is paying in excess of $1,000 a month to assist their 25 year old son who, it is suggested, is unemployed.
[11] On an application for interim spousal support, the Court may make such order as it thinks is reasonable in all the circumstances. That includes taking into consideration the means, needs, and other circumstances of each spouse.
[12] In this case, typical of this type of application, there are a number of facts that are in dispute and which cannot be resolved on the basis of the paper record. That will take place in September when this matter is scheduled to go to trial.
[13] I accept the submission that on interim support applications the court does not and cannot embark on an in-depth analysis of the parties’ circumstances. The court tries, at best, to achieve “rough justice”. In this case, I am satisfied that there should be an interim order for some spousal support. There is no doubt that the Applicant is compromised in his ability to work full time based on the most recent medical evidence. While I accept that $1,000 a year from employment is not realistic and that even on a part-time basis he should be able to do better than that, still his health is a limiting factor.
[14] Next, while it is extremely generous of the Respondent to assist their grown son, there is nothing on the evidence that satisfies me that this young man is not capable of working and looking after his own vehicle and rental expenditures, and in any event one spouse may have a legal obligation to support the other, that is not the case with an adult child in the circumstances of this adult child.
[15] The Applicant’s financial circumstances may change once the matrimonial home, which is finally for sale, is in fact sold and there is a division of the Wife’s pension benefit. At present, however, on the evidence before me an award of spousal support in favor of the Applicant in the amount of $850 per month would be reasonable.
[16] Costs of this matter are reserved to the trial judge determining the issue of spousal support on a final basis.
The Hon. Mr. Justice McNamara
Date: March 20, 2014
COURT FILE NO.: FC-12-3063
DATE: 20140320
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Leslie Pratt Armstrong, Applicant
AND
Judy Lorraine Armstrong, Respondent
BEFORE: Mr. Justice McNamara
COUNSEL: Cheryl L. Hess, for the Applicant
J. Alison Campbell, for the Respondent
ENDORSEMENT
McNAMARA J.
Released: March 20, 2014