COURT FILE AND PARTIES

COURT FILE NO.: F916-01

DATE: 2014/09/12

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jacquelyn A. Kimball v. Mike McVeigh

BEFORE: Karam J.

COUNSEL:
Joe Sinicrope, for the Applicant

Paul E. Trenker, for the Respondent

HEARD: August 26, 2014

ENDORSEMENT

[1] This is a motion brought by the respondent husband to reduce the amount of spousal support, payable to the applicant wife, pursuant to an order made on consent on October 10, 2008, which provided that he pay $2400 per month for that purpose.

[2] At the time of the original order, the parties had been married for just over 20 years. This issue now arises because the respondent retired from his long-time employment in May of 2013 and since then his income consists of a pension of approximately $40,700.00 a year, a substantial reduction from his income while employed, together with CPP benefits of about $9600 a year, for a total annual income from those sources of approximately $50,000. When the parties previously agreed to an equalization of their assets, as part of the order of October 10, 2008, the applicant was compensated for 50% of the value of the respondent’s pension at the time.

[3] At his retirement, he received the following lump sum amounts; $20,000.00 as a transition allowance, $15,151.71 in vacation pay and $51,093.00 in cumulative sick leave gratuity. When added to his income from employment for the period January to May 31, 2013 and his pension income for the remainder of the year, his total taxable income for 2013, was $163,905.21. Since the sick leave gratuity that he received, was specifically excluded from any claim to be made by the applicant, by the order of October 10, 2008, his adjusted income after subtracting that amount was $112,812.21 for that year. Accordingly, because this was similar to the amounts that he paid tax on for 2011 and 2012, there was no material change in his income for our purposes, for 2013, despite his retirement. I am therefore satisfied that there should be no change in the quantum of spousal support, ($2400 per month), as specified in the order of October 10, 2008, for the calendar year ending December 31, 2013.

[4] It also appears clear from the medical evidence provided by the applicant, who is now 61 years old, that she is unable to work at gainful employment, since she suffers from various medical conditions including depression, tremors and fibromyalgia. The medical evidence supporting her medical condition and inability to work at gainful employment is not contradicted by other evidence. Her explanation for failing to apply for CPP benefits, in the interim, is that she is waiting to reach age 65 so that any award she receives will be significantly higher. She estimated that at present she should be restricted to about $294.23 a month. I find that explanation to be reasonable. I am satisfied that her income, aside from spousal support, is effectively zero.

[5] Counsel referred me to Boston v. Boston, 2001 SCC 43, [2001] 2 S.C.R. 413 (S.C.C.), wherein the Supreme Court of Canada stated that that it would be inequitable to allow a wife to twice reap the benefits of her husband’s pension. Despite that overriding principle the Court recognized that the needs of the support recipient and the ability to pay of the payor spouse must be considered in the context of all of the surrounding circumstances, including the use that she has made of the earlier equalization payment.

[6] In that respect, as I understand it, she purchased and maintains a residence where she lives. It was estimated that the value of this property is about $200,000, which I do not view as extravagant. The residence constitutes the bulk of her assets. She has an additional $55,000, most of which is contained in an RRSP. Because of her medical problems, despite being covered by the respondent’s health benefits plan, she is required, by her estimation, to pay an extra $710.00 a month for drugs not covered by that plan and $75.00 a month for a respiratory assistance device. In addition, she has the usual difficulties maintaining an older vehicle, and the cost of house repairs. Of course the respondent husband is now 66, retired and living on a greatly reduced income. However, he receives about $50,000 a year in pension benefits. In addition, he resides with a woman who earns an income of over $62,000 per year and who it would appear should therefore be able to contribute significantly to the household expenses incurred by the respondent.

[7] It is evident that the husband should be entitled to a reduction in the payment of spousal support, having already equalized his pension benefits, subject to consideration of the needs of the wife. The question then becomes one of quantum. To that end I have reviewed all of the material provided with respect to the financial positions of the 2 parties. The husband, as earlier indicated will be earning approximately $50,000 per year and the applicant wife only whatever she receives from him in spousal support, in addition to any amount that she should eventually be entitled to from CPP.

[8] Based upon divorcemate calculations, counsel for the wife submits that a range of spousal support of $1322 to $1762 per month is appropriate, but that the award such be the higher of those two figures. He argues that despite the principle in the Boston decision, there should be, under the circumstances and after considering the wife’s dire straits, no deduction made from the respondent’s income of $50,000. Counsel for the respondent submits a range of $750 to $1000 per month, on the basis of an annual net income of $30,000, after reduction from the husband’s pension income, of that portion already paid to the wife.

[9] While I accept that the appropriate income to be attributed to the respondent for the purpose of calculating spousal support, must recognize the equalization payment already made, the applicant’s needs and the respondent’s relatively strong financial situation and ability to pay, lead me to believe that the respondent should pay $1350 per month in spousal support commencing January 1st, 2014 and each month thereafter.

[10] Counsel has advised me that the applicant has been paid $9792 towards arrears of support and that there was an order made for a lump sum payment of $1200, which was paid. I would expect counsel to be able to make those deductions, from the total arrears owing from 2013, as referred to above. If there is a disagreement in that respect, that issue and the matter of costs, may be spoken to, on 3 days’ notice.

Karam J.

Date: September 12, 2014