SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FC-09-1403
DATE: 2014/09/09
RE: DEBORAH JOANNE CUNNINGHAM, Applicant
AND
GEORGE ETIENNE JOSEPH DESLAURIERS, Respondent
BEFORE: M. Linhares de Sousa J.
COUNSEL:
Kurt W. Anders, counsel for the Applicant
George DesLauriers, Self-Represented
HEARD: September 5, 2014 (at Ottawa)
ENDORSEMENT
[1] The matter before me is a motion brought by Ms. Cunningham to vary her spousal support so that it continues and is paid in accordance with the mid-range of the SSAG (Spousal Support Advisory Guidelines). She also seeks to have spousal support payable retroactive to the date that Mr. DesLauriers ceased paying spousal support in July, 2012.
[2] Mr. DesLauriers contests the motion. He seeks to terminate his obligation to pay spousal support as he believes the current order permitted him to do in July, 2012, in the absence of an application to vary brought by Ms. Cunningham. He also contests the request for retroactive spousal support to July, 2012 in view of the length of time it took Ms. Cunningham to bring this application, almost one and one-half years since the termination of spousal support in July of 2012. This application to vary was brought by Ms. Cunningham in October of 2013.
[3] There were a number of submissions made on the interpretation of the existing support order, which Ms. Cunningham is now asking be varied, which is the order of Mr. Justice Kershman, dated August 10, 2011 and reads as follows:
- The Respondent shall continue to pay spousal support to the Applicant in the amount of $650.00 per month until the first day of July 2012, when either party may bring an application to vary spousal support.
[4] I consider this issue of interpretation moot. Mr. DesLauriers cannot be faulted for terminating his spousal support in July of 2012, in the absence of a motion to vary at that time. The order lends itself to that interpretation. What is clear, though, from the wording of that order is that either party can bring a motion to vary the existing order which is what Ms. Cunningham has done. Under the Divorce Act the Court has the jurisdiction to consider a motion to vary spousal support in this case and to order spousal support retroactively to the date spousal support was terminated if it considers it appropriate.
[5] Ms. Cunningham, through her counsel, has explained why she has delayed almost 16 months in bringing her application to vary. She was ill and hospitalized for various periods during that time. There was also some uncertainty surrounding Mr. DesLauriers’ new residence for purposes of service of this motion. Mr. DesLauriers has indicated his employment address in the court records. In previous court records he used his personal residence and he has changed residences since then. I agree with Mr. DesLauriers he could have been found for service. The parties have not had any communication since the order of Mr. Justice Kershman in 2011. It is evident from her lawyer’s letter dated August 1, 2012, that Ms. Cunningham did not accept Mr. DesLauriers’ position that spousal support automatically terminated on July 1, 2012 unless a motion to vary had been brought. Her position was that the spousal support would continue until a motion to vary could be brought.
[6] For the reasons already given that point I now consider to be moot.
[7] With respect to the substantial issue on this motion, namely should there be ongoing spousal support and if so, what is the appropriate quantum of spousal support to be paid to Ms. Cunningham by Mr. DesLauriers, I conclude as follows.
[8] On the evidence concerning the current circumstances of the parties, I am persuaded that for medical reasons Ms. Cunningham is unable to work and cannot provide for her own support. One of the objectives of the existing support order of 2011, as revealed by the evidence, is that it was anticipated by both parties that Ms. Cunningham would pursue a course of retraining and thereafter find full-time employment to become self-sufficient. Ms. Cunningham did, indeed, complete this course of training. Nonetheless, her health circumstances, now, are such that she is unable to work full-time for medical reasons. I accept the medical evidence. This is clearly a material change of circumstance from what the parties considered at the time of the order of Mr. Justice Kershman.
[9] Under the Divorce Act Ms. Cunningham continues to be entitled to spousal support and she clearly is in need of support. While Ms. Cunningham has some assets which she received as part of her equalization payment upon the end of her marriage to Mr. DesLauriers, she should not be required, at this point, to reduce those assets to zero before being able to claim spousal support when her entitlement to spousal support continues in these circumstances. The parties appear to be equal as to their asset holdings at the time of the marriage break-up.
[10] There is no question that Ms. Cunningham should have made an application for a disability pension so as to provide for her own support as much as she is able to do. This could also make a difference in the calculation of any SSAG amount. She is therefore ordered to do so as soon as possible and to keep Mr. DesLauriers informed of the progress of that application.
[11] Mr. DesLauriers continues to be employed and his income has increased, not substantially, since the order of Mr. Justice Kershman. His current line 150 income is $48,776 per annum. In 2011, his declared earnings were approximately $45,048 per annum. He continues to be able to pay spousal support.
[12] In my view the appropriate quantum of spousal support should be as calculated through the SSAG tables as the Ontario Court of Appeal has directed. There is no reason not to apply those calculations. Counsel for Ms. Cunningham has presented those calculations. In view of Ms. Cunningham’s not having made an application for a disability pension to which she may be entitled, I conclude it to be appropriate to order the low range of the SSAG calculations and order Mr. DesLauriers to pay spousal support of $812 per month.
[13] I make that order retroactive to August 1, 2012, as Ms. Cunningham should not be penalized because her health did not permit her to bring this application sooner than she did. Any arrears due as a result of this endorsement shall be paid in three equal installments payable on November 1, 2014, February 1, 2015 and May 1, 2015.
[14] The last issue is costs. Ms. Cunningham shall have two weeks from the release of this endorsement to serve and file her written submissions on costs. Mr. DesLauriers shall have two weeks from that date to serve and file his written submissions on costs. Ms. Cunningham shall then have one week from that date to serve and file any reply she may want to present. I would ask the parties to make their written submissions no longer than 10 pages if that.
M. Linhares de Sousa J.
Released: September 9, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: DEBORAH JOANNE CUNNINGHAM, Applicant
AND
GEORGE ETIENNE JOSEPH DESLAURIERS, Respondent
BEFORE: M. Linhares de Sousa J.
COUNSEL: Kurt W. Anders, counsel for the Applicant
George DesLauriers, Self-Represented
ENDORSEMENT
M. Linhares de Sousa J.
Released: September 9, 2014