ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-12-2349
DATE: 2014/06/27

BETWEEN:

Cheryl Anne Vermette
Applicant

– and –

Richard Paul Morrissette
Respondent

J. Alison Campbell, for the Applicant

Thomas Curran, for the Respondent

HEARD: June 2 and 3, 2014

REASONS FOR DECISION

PHILLIPS J.

[1] The issues to be resolved in this proceeding have been narrowed considerably, to the credit of the parties and their counsel. In fact, the only issue requiring judgment is that of spousal support. Even then, the only questions are quantum and duration since entitlement is admitted.

[2] Spousal support is a statutory concept, set out in section 15.2 of the Divorce Act. In making such an order, a Court shall take into consideration the condition, means, needs and other circumstances of each spouse, including the length of time the spouses cohabited and the functions performed by each spouse during their cohabitation. In addition, any order for spousal support should:

• recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

• relieve any economic hardship of the spouses arising from the breakdown of the marriage: and

• insofar as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[3] The parties cohabitated for approximately five years prior to getting married on July 22, 1989. Children came soon afterward, with Christina born April 28, 1990 and Alexandre born March 26, 1992. Both children are now independent, self-sufficient adults. The parties separated in June, 2012.

[4] The Applicant repeated Grade 13 to improve her marks for university admission. Her effort in that regard was successful and she was admitted the following year to Trent University to study anthropology. After first year, she transferred to Queen’s University in her home town of Kingston to be closer to her family and the Respondent whom she was then dating. At Queen’s she started in psychology then switched to sociology ultimately obtaining a general Bachelor of Arts degree. Following her time at Queen’s, the Applicant enrolled in a nursing program at a community college but discontinued it before graduating as she found the subject matter too onerous.

[5] During both high school and her years at Queen’s the Applicant worked at a local hospital as something of a personal support worker. The job was relatively well-paying and she enjoyed it. Indeed, she left that job only when she left Kingston to follow the Respondent to Ottawa when he secured a job at CSIS in 1990. Once in Ottawa, the Applicant worked through a temporary employment agency making meals for the disabled, holding that job for about three months before the children came along. The Applicant’s next employment initiative came in 1995 when she enrolled in the Algonquin College travel and tourism program with the goal of becoming a travel agent. After successfully completing that seven-month program the Applicant did obtain employment at a travel agency but left that employment after only a few months after finding the job too difficult. The Applicant next worked in 2010 in the eyewear department at a Loblaws. That job, which paid only minimum wage, ended after a few months as the Applicant found it too challenging. Finally, the Applicant got a job as a sales clerk in a clothing store, again for minimum wage, in 2011. That employment ended as it was only for the Christmas season.

[6] It was clear that the Applicant worked outside the home only sporadically during the marriage and at jobs falling well short of the level of education she attained as a young adult. Her evidence discloses a present shortage of self-confidence with respect to the degree to which she can contribute to a workplace. Both the Applicant and her mother testified that she does poorly with respect to mathematics, including working a cash register. Equally, the Applicant is said to have difficulty with any procedures or systems that she is asked to follow by typical employers. To this day, the Applicant really has no idea what sort of job she would like to do. Her education and skills have atrophied and she is intimidated by the changes that have occurred in the workplace over the last several decades. To her credit, however, she is currently seeing both a psychologist and an employment counselor in an effort to determine the best course of action for herself employment-wise.

[7] For his part, after working briefly as a correctional officer in one of Kingston’s penitentiaries, the Respondent commenced his career at CSIS in 1990. It is clear on all the evidence that he has worked hard at his job and is good at it. Indeed, he has been promoted at least three times and currently makes an impressive salary of $127, 968 per annum. His career involved moving with the Applicant three times (to Ottawa, to Calgary, then back to Ottawa) as he rose through the ranks. At all times, his duties involved a lot of travel. I also heard how he funded various family extra expenses by working significant periods of overtime.

[8] Describing each of the parties’ career paths in isolation, however, misses the full picture. First of all, while I appreciate he does not see it this way, it is fair to say that the Respondent benefited significantly from the Applicant’s support on the home front, freeing him up to devote himself to his career. Her staying at home allowed him to travel extensively and put in the extra time required for his career to advance as it did.

[9] Indeed, it is appropriate to describe the parties’ marriage as a traditional one. After the children were born, the Applicant essentially put aside any career aspirations and devoted herself to the care of the children and the maintenance of the home. I find that the parties came to an understanding early on that the Applicant would devote herself primarily to childcare. As the Respondent himself testified “we wanted the children to have our values, not a daycare’s values”.

[10] I find that the Applicant has suffered economic disadvantage as a result of the marriage and I agree that she is entitled to compensatory spousal support. Not only is that fact proven via direct evidence of the couple’s agreement that the Applicant would forgo a career in favor of full-time child rearing, I infer it from the Applicant’s need as shown by the drastic disparity in the pair’s present economic positions. To paraphrase Bastarache J.A. (as he then was) in Ross v. Ross (1995) 1995 6228 (NB CA), 16 R.F.L (4th) 1 N.B.C.A.) at 7, need and standard of living can serve as proxy measures for ascertaining loss of economic opportunity arising from a long traditional marriage.

[11] Moreover, I accept that given the length of the marriage and its traditional character, the goal of spousal support is to provide the Applicant with a reasonable standard of living judged in light of the marital standard of living. As the Supreme Court of Canada made clear in Moge v. Moge 1992 25 (SCC), [1992] 3 S.C.R. 813 at 870: “As marriage should be regarded as a joint endeavor, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution”.

[12] In my view, the Applicant’s inchoate employment plans and prospects must be viewed through the prism of her being placed unexpectedly at the end of a 28 year long relationship, the bulk of which was structured along the traditional lines touched upon above. Having said that, though, it is also my view that the Applicant is too young to not have to make some effort toward self-sufficiency (she is presently 51 years old). While full self-sufficiency at this point is nigh impossible, at least at the standard of living to which the parties were accustomed during marriage, based on the Applicant’s proven intelligence illustrated by her educational achievement and given her fairly recent forays into the work force, I am confident that she can return to full-time employment (albeit likely at minimum wage). It would not be reasonable to expect that return to happen overnight but given the employment counseling currently underway it is a result that can be expected to occur within at least the next 12 months. After 12 months, therefore, full-time minimum wage income will be imputed to the Applicant until such time as the Respondent retires.

[13] The Respondent’s current income is $127,968 per annum. While I appreciate that the spousal support guidelines are only guidelines, I am inclined to the view that they strike an appropriate balance here. Using them at the high end of their range allows for a spousal support award that will result in roughly equivalent incomes, which is what I find is called for given the length of the marriage and its traditional nature. However, I have been persuaded that a temporary reduction is called for since the Applicant remains in the matrimonial home living effectively rent-free. Accordingly, I make the following orders:

(a) Commencing July 1, 2014 the Respondent shall pay to the Applicant spousal support in the amount of $3,000 per month, on or before the first of each and every month until such time as the sale of the matrimonial home closes.

(b) Commencing on the first of the month following the sale of the matrimonial home, the Respondent shall pay to the Applicant spousal support in the amount of $5,185 per month, on or before the first of each and every month for a period of 12 months.

(c) After the 12 month period identified above, the Respondent shall pay to the Applicant spousal support in the amount of $4,228 per month, on or before the first of each and every month thereafter, unless and until a variation is agreed to between the parties or ordered by this Court.

(d) The spousal support identified above shall be included in the income of the Applicant and deducted from the income of the Respondent for income tax purposes.

(e) Any amount of spousal support outstanding from the Respondent to the Applicant as of the date of the sale of the matrimonial home shall be paid to the Applicant in full from the Respondent’s share of the proceeds from the sale of the matrimonial home, concurrent with the sale of the home.

(f) The spousal support outlined above may be varied only based on a material change in circumstance, which shall include but not be limited to an increase or decrease in the income of either party, or a change in either party’s medical situation which would affect the amount of support paid. In the event that either party wishes to rely on a decrease in income, that decrease must result from circumstances beyond their control.

(g) Notwithstanding the above paragraph, retirement may be considered a material change in circumstance.

(h) In any year where spousal support is not varied pursuant to paragraph (f) above, the spousal support payment as enumerated herein shall be subject to a cost-of-living increase on an annual basis, the first of such increases to take place in July 2015 and the first day of July of each and every year thereafter so long as spousal support is payable. This increase or decrease shall be equal to the lesser of:

• The percentage increase in the Consumer Price Index as published by Statistics Canada for the place in which the Applicant resides;

• or the increase, if any, in the income of the husband for the preceding 12 months.

(i) In the event of a cost-of-living adjustment where the husband wishes to rely on the increase in his income over the preceding 12 month period to determine the percentage increase in support payable under this agreement, he shall provide the wife with written notice of his intention to do so and shall provide her with sufficient information and documentation to prove what his gross income has been for the one year period immediately prior to the adjustment date in the year in which the husband makes such election.

[14] Finally, I must determine whether to make this spousal support award retroactive and if so to what date. The Court of Appeal has set out guidelines for trial Courts in considering the issue of retroactive spousal support in the case of Bremer v. Bremer 2005 3938 (ON CA), [2005] O.J. No.608 (Ont. C.A.) at paragraph 9:

The considerations governing an award of retroactive spousal support include: i) the extent to which the claimant established past need (including any requirement to encroach on capital) and the payor’s ability to pay; ii) the underlying basis for the ongoing support obligation; iii) the requirement that there be a reason for awarding retroactive support; iv) the impact of a retroactive award on the payor and, in particular, whether a retroactive order will create an undue burden on the payor or affect the redistribution of capital; v) the presence of blameworthy conduct on the part of the payor such as incomplete or misleading financial disclosure; vi) notice of an intention to seek support and negotiations to that end; vii) delay in proceeding and any explanation for the delay; and viii) the appropriateness of a retroactive order predating the date on which the application for divorce was issued.

[15] Applying this law to these facts, I note that the Applicant’s need was obvious from the outset as was the Respondent’s ability to pay. It should presently surprise no one that the Applicant has had to encroach on capital to make ends meet. Given the agreed-upon traditional nature of the marriage, the underlying basis for a roughly equalizing support obligation should have been clear to the Respondent all along. Indeed, as far back as August 3, 2012 the Applicant put the Respondent on notice that she would be seeking such spousal support.

[16] Having said all that, however, the Respondent did consent to an interim order that he pay spousal support in the amount of $2,031 per month commencing February 1, 2013. That amount was arrived at in consideration of the Applicant occupying the matrimonial home on a rent-free basis and while lower than the support order I have made herein it represents a reasonable effort on the Respondent’s part to negotiate a fair fulfillment of his obligations. Moreover, I find that the glacial pace of this resolution comes as a result of the Applicant’s disinclination to sell the matrimonial home, an obstruction that has impaired the Respondent’s financial position and which forgives him somewhat from not paying more along the way. Finally, I find that making the amount of spousal support that I have found appropriate fully retroactive would have an unfair impact on the Respondent and indeed would create an undue burden on him and likely affect the redistribution of capital.

[17] After balancing all of the criteria outlined above, I conclude that while the interim spousal support amount of $2,031 per month was a reasonable attempt to arrive at a negotiated interim settlement and is accordingly entitled to respect from this Court, it should have begun flowing as of September 1, 2012 which is roughly a month after the Respondent was first put on notice. Accordingly, I award retroactive spousal support from September 1, 2012 to July 1, 2014 at the amount of $2,031 per month. Obviously, any amounts paid already need not be paid again.

[18] Costs of this trial, and those reserved to the trial judge within earlier endorsements, may be addressed by written submissions to be filed, by the Applicant within 20 days, by the Respondent 20 days thereafter, and reply by the applicant 10 days later. Submissions are limited to three pages exclusive of any Offers to Settle and/or Bills of Costs. In any event, within 14 days of release of this decision, the parties are to exchange Offers to Settle the costs arising from this decision.

Justice Kevin B. Phillips

Released: June 27, 2014

COURT FILE NO.: FC-12-2349
DATE: 2014/06/27

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Cheryl Anne Vermette
Applicant

– and –

Richard Paul Morrissette
Respondent

REASONS FOR decision

PHILLIPS J.

Released: June 27, 2014