SUPERIOR COURT OF JUSTICE, FAMILY COURT BRANCH, OTTAWA

COURT FILE NO.: FC-05-612-1

DATE: 20140304

RE: John Milton Berger v. Deborah Mary Brayley

COUNSEL:
Mary Cybulski for Mr. Berger

Joan Rothwell, for Ms. Brayley

Motion Heard February 7, 2014

Reasons for Judgment of Backhouse J. released March 4, 2014

[1] Mr. Berger seeks a reduction of his spousal support arrears owed to Ms. Brayley from $70,196 to $28,832 and a reduction of his ongoing support from $1200/month to $600/month. He proposes that he pay arrears off in the amount of $100/month and that support be terminated upon his reaching the age of 65 years. Mr. Berger and the City of Kingston have entered into a consent order whereby the arrears of $17,683.55 assigned to the City are fixed at $10,000 which Mr. Berger is to pay in the amount of $25/month. Ms. Brayley submits that Mr. Berger’s motion should be dismissed.

[2] The parties were married for 24 years and had 3 children together. They separated in 2002. Ms., Brayley sought spousal support. Mr. Berger was self-employed and failed to make full financial disclosure. His pleadings were struck. On June 15, 2004, Justice Pedlar attributed yearly income to Mr. Berger of $54,000 and ordered him to pay $1200/month in spousal support.

[3] Child support terminated in 2004 and is not in issue. Mr. Berger has brought 2 prior motions to change. In 2005, Justice Maranger reduced the arrears by $4181 and fixed the arrears at $43,000. In November 2009, Justice Trousdale dismissed Mr. Berger’s application to vary support arrears for the period June 2004 to November 2009, determining that there was no change in circumstances.

[4] Mr. Berger is 60 years old. He is a cancer survivor. His traditional line of work is carpentry. He suffers from environmental reactive airway disease which results in asthma. This makes it difficult for him to work in carpentry. In 2010, Mr. Berger’s income was $61,098. In 2011, his health issues resulted in him going on worker’s compensation and his income reduced to $20,619. He relies upon this as his most significant change in circumstances. Ms. Brayley’s income for 2011(excluding support) was $15,241. He then obtained employment in a sales position. In 2012, his income increased to $59,444. In early 2013, his employer shut down the branch in Salmon Arm where Mr. Berger was employed. He started a new job in March 2013 and submitted that he expected his 2013 income to be approximately $39,576 less an adjustment for vehicle, leaving a net of $37,225.

[5] I asked Mr. Berger to deliver his T4s for 2013 and reserved on this matter. I have now received the requested documentation. Mr. Berger’s T4s for 2014 disclose income of $10,535 from his previous employer and $35,802 from his current employer with whom he commenced employment on March 4, 2013, making a total 2013 income of $46,237. In addition, he receives a tax free car allowance of $500/month which he submits is less than he is required to expend on work related automobile expenses. He deposes that he is required to work 60 to 70 hours many weeks in order to meet his sales targets and he has to attend on site which affects his health issues. He submits that the support order should terminate upon his reaching age 65 at which time he states he definitely will retire.

[6] Mr. Berger has been an undischarged bankrupt since 1996. He states that he has not been able to make the payments to obtain a discharge because of his spousal support obligations.

[7] Mr. Berger submitted in accordance with Exhibit 1 prepared on his behalf that a number of deductions should be made to the arrears:

• Deduct the interest which has accumulated on the arrears at 10% per annum in the amount of $12,963.95;

• Deduct $4181.73 for arrears reduced by Justice Maranger in 2005 which were never credited;

• Deduct $1746.24 on account of funds paid through the Bankruptcy Trustee on account of arrears but not credited;

• Deduct $900 on account of monies paid in regard to a car for Ms. Brayley;

• Credit $1488 for 2010 based on an assumption that he overpaid having regard to the low end of the SSAG range;

• Credit $14,400 for 2011 based on an assumption that he overpaid having regard to the low end of the SSAG range;

• Credit $1560 for 2012 based on an assumption that he overpaid having regard to the low end of the SSAG range;

• Credit $7200 for 2013 based on an amount Mr. Berger submits is affordable.

[8] Mr. Berger submits that Ms. Brayley is now in receipt of CPP disability pension and he accepts her income as stated. However, he submits that over the years she could have made more effort to become self sufficient.

[9] Ms. Brayley made the following submissions:

(1) that there is no material change;

(2) Mr. Berger has never complied with the court ordered obligation that he obtain $260,000 in life insurance which is very important to her and he now says he cannot obtain insurance;

(3) He has not paid a 2004 costs order for $5500 not included in the above arrears;

(4) He has not provided health coverage as he was ordered to do;

(5) His income in 2010 and 2012 exceeded the amount attributed to him;

(6) Even when his income was equal to or greater than the $54,000 attributed to him, he did not voluntarily pay the court ordered support and it was only paid when enforcement started;

(7) She made every effort to work after 29.5 years of cohabitation and 3 children. She is now permanently disabled;

(8) Mr. Berger’s wife earns $64,000 and owns the home they live in. Ms. Brayley pays rent and lives with her daughter and her partner. Mr. Berger’s standard of living greatly exceeds hers.

(9) The arrears are important to Ms. Brayley. Mr. Berger did not pay the support when he had the ability to pay but waited until his situation deteriorated to say the arrears should be rescinded;

(10) The ongoing support should continue at $1200/month with a further $500/month paid on account of the arrears.

Analysis

Arrears

[10] During the 24 year marriage, Ms. Brayley was a full time mother of 3 children and a homemaker. There is no evidence to support Mr. Berger’s submission that after separation, Ms. Brayley did not support herself to the extent she reasonably could prior to her becoming disabled.

[11] Mr. Berger has not been forthright about his income. In the years where his income exceeded the income attributed to him, he did not comply voluntarily with the support order. He has defaulted in paying the costs award and did not provide Ms. Brayley with medical coverage. Most troubling is his default in obtaining life insurance at a time when he could have complied but now apparently cannot. To rescind part of the arrears based on any of the grounds submitted by Mr. Berger would ignore his default on the costs awards and medical coverage. Most importantly, it would ignore his failure to maintain life insurance to secure his support obligation in the event he predeceases Ms. Brayley which apparently cannot now be remedied. In my view, to rescind a portion of the arrears in the face of these defaults would not do justice between the parties.

Ongoing Support

[12] Mr. Berger’s T4 income from TAC Solutions (his current employer) for 10 months in 2013 was $35,702. Without attributing anything for his $500/month tax free car allowance, pro rating $35,702 over 12 months would result in a prospective annual income of $42,840. The range of support under the SSAG assuming an income for Mr. Berger of $42,840 and CPP disability and ODSP of $11,479 for Ms. Brayley is: low of $1086, mid of $1267 and high of $1371. In my view, there is no material change and Mr. Berger’s arguments for reducing his support obligation from $1200/ month to $600/month have no merit. Further, I do not consider it appropriate to order at this time that the support terminate upon Mr. Berger reaching the age of 65 years. While it may be Mr. Berger’s intention at this time to retire upon reaching the age of 65 years, that could change and both parties’ circumstances should be considered at the time that he does retire.

Conclusion

[13] In the result, Mr. Berger’s motion is dismissed. The arrears of support shall be paid in the minimum amount of $100/month but this shall not interfere with efforts to collect all the arrears owing. Any arrears of support owing at the time of his death shall be binding on his estate.

[14] If the parties are unable to agree upon costs, Ms. Brayley shall have 21 days from the release of these reasons to make brief written submissions on costs which may be sent by email to my assistant, Carol Lageer at carol.lageer@ontario.ca. Mr. Berger may have 21 days thereafter to respond.

Backhouse J.

Date: March 4, 2014