COURT FILE NO.: St. Thomas 5905/12
DATE: March 17, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KAREN LYNN TSCHERNER
P. Allen Skuce for the applicant
Applicant
- and -
JOHN PATRICK FARRELL
William I. Dick for the respondent
Respondent
HEARD: January 20, 21, 2014
VOGELSANG J.
[1] The parties married on October 1, 1988. They lived together for about two years before their union and had purchased a residence at 78 Myrtle Street, St. Thomas which became their matrimonial home. When they separated in 2005, they had produced three children: Brigette Alexandria, Connor Patrick and Callaghan Robert, born March 26, 1991, April 22, 1993 and November 27, 1994, respectively. At the time of trial, Brigette was 22; Connor 20 and Callaghan 19 years of age.
THE EVIDENCE OF MS. TSCHERNER AND MR. FARRELL
[2] Both parties testified. The examination in-chief of the applicant was unusually truncated. While each of the parties seemed quite intelligent and gave every appearance of attempting to be truthful, I was much more impressed with the reliability of the evidence of Mr. Farrell. He went out of his way to fully explain his statements. He was quite prepared to be charitable and kind to Ms. Tscherner. His memory of events and financial matters in the past was much more precise than that of Ms. Tscherner, who admitted on several occasions that she could not recall what one would think would have been significant events involving money. Several times she appeared vague and scattered in her memory; but again, I thought she was trying hard to convey her evidence honestly. Whether or not her difficulty arose simply in the contours of her personality I could not tell. Certainly Exhibit 1, tab 5 – the psychiatric examination report dated December 24, 2011 by Dr. Richard Guscott prepared for her former litigation counsel – raises considerable concern about her ability to recall. At page 7 of that report, Dr. Guscott recites her describing her memory as “awful, awful, awful.” His mental status examination revealed her self-report of “significant problems with concentration, memory, attention and focus” (p. 11). The result of all of this is my clear preference for the evidence of Mr. Farrell at those points where there was conflict in the testimony of the parties.
DISSOLUTION OF THE MARRIAGE
[3] Mr. Farrell and Ms. Tscherner acknowledged that there was no possibility of their reconciling their marriage. Ms. Tscherner testified bluntly that they separated on February 15, 2005. She offered no explanation or context even though Mr. Farrell was known to have a different view. He testified that Ms. Tscherner had initiated talk of a separation in early 2005 – they had parted for four months about eight years before – but moved out at the end of May 2005. Ms. Tscherner and Mr. Farrell’s eventually agreed that the children would stay in the matrimonial home and live with Mr. Farrell who testified that Ms. Tscherner expressed the wish that the children stay with him and that she reasoned “he was the better parent.” I prefer Mr. Farrell’s evidence. The date of separation was June 1, 2005.
[4] It is apparent from the evidence that the parties have not lived as husband and wife since separation. Ms. Tscherner testified that there has been no collusive agreement to hide or fabricate evidence to obtain a divorce on false grounds. An order will go dissolving the marriage, effective 30 days from the date of these reasons.
CHANGING FINANCIAL CIRCUMSTANCES OF THE PARTIES
[5] Mr. Farrell became employed as an alignment and suspension technician at Harry’s Spring Service in St. Thomas immediately after completing Grade 12 in 1983. He sustained a serious back injury when a truck fell on him in a work mishap in 2003. At that time, he had been earning $42,000 a year but, after he was hurt, he found his income reduced by Workplace Safety and Insurance Board benefits to $500 weekly (or about $26,000 annually).
[6] Ms. Tscherner was examined about her care of the children and she professed to have been responsible for child care when the children were young. An issue arose immediately during her cross-examination about a November 13, 2013 Request to Admit in Form 22 which Mr. Skuce had served. It dealt with payments made by Ms. Tscherner toward certain Royal Bank and Bank of Montreal joint loans but, among other matters like medical reports, sought admissions by Mr. Farrell that “until the last few months prior to separation, Ms. Tscherner had the traditional role of house manager and primary care-giver for the children” and, further, that the parties had agreed to that arrangement.
[7] Mr. Skuce led evidence from Ms. Tscherner about her participation and activities with the children about which she was cross-examined, then belatedly pointed out that there had been no response to the Request and that r. 22(4) of the Family Law Rules deems the alleged facts admitted. No explanation was offered by either Mr. Dick or Mr. Farrell for the failure to respond; however, I am not convinced that the issue is laid to rest as quickly as Mr. Skuce suggests. First, the term “house manager” is probably a term of art not predictive of a marriage role-based claim for later compensatory spousal support. Second, the primary care of the children is not really an obvious issue in this case, against the background of Ms. Tscherner’s pattern – except for a short period after Brigette’s birth – of continuous and lucrative paid employment. Any prolongation of the trial or prejudice to Ms. Tscherner by the unexplained failure to comply with r. 22 can, potentially, be compensated in costs. The deemed admission provision does not defeat this evidence: see Zellers Inc. v. Group Resource Inc. (1995), 21 O.R. (3d) 522 (Gen. Div.).]
[8] Ms. Tscherner testified that, had the couple had no children, she would have become a professional photographer and enjoyed a career. In cross-examination, however, a much different picture emerged. Except for one maternity leave from work for between eighteen months and two years, Ms. Tscherner was steadily employed throughout the period before separation. Mr. Farrell and the three children gave believable evidence that Ms. Tscherner worked long hours for Creative Kids Photos and, in addition, conducted her own private photography business on the side. She then moved to a firm called Glamour Shots and rose to the position of District Manager which required her to drive around the province and, as well, to attend frequent corporate meetings in Toronto. The weight of the evidence satisfies me, on a balance of probabilities, that Mr. Farrell was, at the very least, an equal partner in the raising of the children. There is little evidentiary basis to found a compensatory support claim based on Ms. Tscherner’s proportionately greater child care efforts.
[9] After Mr. Farrell’s 2003 back injury and his resulting incapacity, he was forced to stay home and rehabilitate himself. In this period he became even more responsible for the care of the children at home, since Ms. Tscherner was now working as a welder at Formet, a Magna auto parts factory, sometimes on night shifts. She was earning over $60,000, well over twice Mr. Farrell’s WSIB income. Ms. Tscherner had taken another step to earn income when she purchased a franchise Esso gas bar in London which she operated with Mr. Farrell’s occasional help.
[10] At the time of separation Mr. Farrell was no longer assisting with the gas bar and, shortly thereafter, Esso closed the station, apparently because the 25 year old gasoline storage tanks were in disrepair and would require extensive renovation. Ms. Tscherner’s evidence about the financial advantage she received from the gas bar over time was quite incomplete. She professed to recall very little and there was a corresponding complete lack of documentary evidence. I do accept on a balance of probabilities that:
(i) She received a significant sum, somewhere between $10,000 and $30,000 from the gas bar business which assisted her in buying a new residence at separation. In saying that, I am considerably influenced by the inclusion of $37,000 income from taxable dividends declared by Ms. Tscherner in 2005 which she was completely unable to explain except to say that it was “somehow related” to the Esso gas bar;
(ii) After separation, Ms. Tscherner owned and disposed of the complete inventory of all the non-gasoline stock of oil, cigarettes, pop, chips and sundries; and
(iii) Mr. Farrell testified that $2,500 was paid monthly to Ms. Tscherner by Esso for nine months after the gas bar was closed. He was not cross-examined on this point and she did not deny it.
[11] Before the separation, Mr. Farrell planned a new direction vocationally. Ms. Tscherner enjoyed a significant income from Formet and had the profits from the Esso enterprise. Mostly financed by his WSIB payments, Mr. Farrell attended the Adult Learning Centre to upgrade his Grade 12 courses. Right around the time of separation, he gained admission to Fanshawe College in a Pre-Health programme. After a successful completion of that prerequisite, he entered the three year Medical Radiology Technologist course from which he graduated in 2009, fully qualified for what would turn out to be lucrative work.
THE SUPPORT AGREEMENT
[12] After the parties parted ways in 2005, Ms. Tscherner continued her factory work at Formet. In 2006 she had employment income of about $63,000 which increased slightly in 2007. Mr. Farrell, however, advanced no formal claims for support for the three children. Ms. Tscherner voluntarily made an effort to pay for some of the children’s hockey expenses for about one year, then stopped. Mr. Farrell, though, did admit that throughout she would occasionally buy the children clothes and that she gave them some money from time to time.
[13] I accept Mr. Farrell’s evidence that he initially agreed that he would accept $500 from Ms. Tscherner as her informal contribution to the children’s support but that, after a three or four months’ review of receipts, he asked for $750 to which she acceded. Two or three months later, he again told Ms. Tscherner he needed more money. They agreed on a monthly payment of $900.
[14] Ms. Tscherner asserted that she paid the $900 consistently (she never mentioned any gradual $500 - $750 - $900 increase) until shortly after she herself sustained severe injuries in a motor vehicle collision on November 1, 2008. Mr. Farrell said that was untrue. His evidence was that he was paid the agreed $900 to December, 2007, but then only $400 in January, 2008 after which payments stopped. He testified that he repeatedly asked for the support payments but was told by Ms. Tscherner: “I have no money”. While Ms. Tscherner said that Mr. Farrell had to be pursued for receipts which he was reluctant to give her – in explaining Exhibit 4, the receipt book which corroborated his version – I do not accept her evidence. It just did not have an air of reality. There was no reason for one of the parties to obtain a receipt book and then refuse to use it.
[15] I do, however, accept Ms. Tscherner’s admission that she was well aware that Mr. Farrell was making no claim for either child support or spousal support while she was earning a quite significant income and he was receiving only WSIB benefits when in school. For his part, he testified that he was then well aware of the existence of the Child Support Guidelines and had determined approximately what Ms. Tscherner’s child support obligation would have been, based on her then income.
[16] Before the November 1, 2008 car collision, Ms. Tscherner had been briefly laid off by Formet, and received Employment Insurance benefits and supplementary income payments through her union. After six months without work, she was assigned by the Magna Group to work as a welder at the Modatek plant in Milton, Ontario where she was employed until she was injured.
[17] Mr. Farrell testified, and I accept, that from time to time after the separation he and his wife had desultory conversation about Ms. Tscherner transferring her interest in the matrimonial home to him in which he could maintain the children, if he would not pursue any form of formal support. It was obvious that the children’s occupation and enjoyment of the stability of their accustomed home was extremely important to both of these parents. For that, of course, they must be commended.
[18] In the result, the parties effectively entered into an informal “standstill” agreement after separation because any demand by one may well have triggered a demand by the other. After they settled between themselves on an ad hoc basis for child support, Mr. Farrell and Ms. Tscherner implicitly agreed to maintain the status quo, just as was the case in Cassidy v. McNeil (2010), 2010 ONCA 218, 99 O.R. (3d) 81 (C.A.).
THE MOTOR VEHICLE COLLISION
[19] The collision of November 1, 2008 was catastrophic for Ms. Tscherner. She sustained serious injuries to many areas of her body and was psychologically damaged, all of which is set out in detail in the report of Dr. Guscott, supra. At 51 years of age, she was left with severe cervicogenic migraine headaches, limited neck movement, and pain in her lower back, left shoulder and hip. She now can neither stand nor sit for extended periods. Dr. Guscott diagnosed both a chronic pain disorder (due to both medical and psychological factors) and a major depressive disorder. While she had reached her maximum medical recovery in late 2011, she was then termed unemployable. Dr. Guscott said she would “more likely than not remain unemployable in the future.” He described her prognosis as “poor.”
SPOUSAL SUPPORT
[20] Ms. Tscherner’s spousal support claim is made difficult to resolve by the back-and-forth dramatic changes in the financial circumstances of both parties during and after their cohabitation, culminating in the motor vehicle collision more than three years after separation which leaves her with a continuing disability completely unrelated to the marriage. Some discussion of support principles is necessary.
[21] In Ross v. Ross (1995), 16 R.F.L. (4th) 1 (N.B.C.A.) at paras. 14 and 15, Bastarache J.A., as he then was, wrote:
A just resolution of spousal support claims will take into account the economic effect of the marriage and its breakdown, the contribution of the spouses to the career advancement of each other, the standard of living enjoyed by each spouse during the marriage, as well as the requirement that both spouses seek to achieve self-sufficiency. In all cases, nevertheless, both parties must be able to continue with their lives, enter into new relationships and function independently of one another.
... It is in cases where it is not possible to determine the extent of the economic loss of the disadvantaged spouse that the Court will consider need and standard of living as the primary criteria, together with the ability to pay of the other party.
[22] It is useful to set out the statutory scheme and the direction of the Supreme Court of Canada in determining Ms. Tscherner’s spousal support claim:
Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.)
Spousal Support Order
15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.
Factors
(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
Objectives of spousal support order
(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[23] In Bracklow v. Bracklow, (1999), 44 R.F.L. (4th) 1 (S.C.C.), McLachlin J. said at paras. 35 and 36:
35 [Moge v. Moge, [1992] 3 S.C.R. 813] sets out the method to be followed in determining a support dispute. The starting point is the objectives which the Divorce Act stipulates the support order should serve: (1) recognition of economic advantage or disadvantage arising from the marriage or its breakdown; (2) apportionment of the financial burden of child care; (3) relief of economic hardship arising from the breakdown of the marriage, and (4) promotion of the economic self-sufficiency of the spouses: s. 15.2(6). No single objective is paramount; all must be borne in mind. The objectives reflect the diverse dynamics of the many unique marital relationships.
36 Against the background of these objectives the court must consider the factors set out in s. 15.2(4) of the Divorce Act. Generally, the court must look at the "condition, means, needs and other circumstances of each spouse". This balancing includes, but is not limited to, the length of cohabitation, the functions each spouse performed, and any order, agreement or arrangement relating to support. Depending on the circumstances, some factors may loom larger than others. In cases where the extent of the economic loss can be determined, compensatory factors may be paramount. On the other hand"in cases where it is not possible to determine the extent of the economic loss of a disadvantaged spouse . . . the court will consider need and standard of living as the primary criteria together with the ability to pay of the other party": Ross v. Ross (1995), 168 N.B.R. (2d) 147 (C.A.), at p. 156, per Bastarache J.A. (as he then was). There is no hard and fast rule. The judge must look at all the factors in the light of the stipulated objectives of support, and exercise his or her discretion in a manner that equitably alleviates the adverse consequences of the marriage breakdown.
[24] After the collision, Ms. Tscherner received income from a variety of sources. Her automobile insurer, Economical Insurance Company, paid her income replacement benefits. Formet paid her $50,000 in 2010 as a termination payment but an unspecified amount of that went to her lawyer and another portion to her trustee in bankruptcy with whom she was dealing at the time following an assignment. She eventually settled a short term disability and long term disability claim against Sunlife Financial for $90,000 in mid-2012. Economical had continued to pay her $800 every two weeks but warned that, if she received disability payments under the Canada Pension Plan, her recovery would be lessened. In fact, Ms. Tscherner was denied the Canada Pension Plan benefit but successfully appealed. I have very little information in the record and know nothing about any lump sum CPP payment made or the extent of any of her recovery from or any particulars of the Economical Insurance Company payments.
[25] After the separation, Mr. Farrell eventually graduated from school and began working long hours as a radiology technician. He quickly found a number of contract positions in hospitals in the St. Thomas area, including Woodstock General Hospital and the London Health Sciences Centre. It was of some financial benefit to him to keep contract positions and his income increased quickly until he was earning, in 2012, almost $110,000 and $108,000 in 2013. His increased income was due in part to his being willing and able to work more than 60 hours a week. His reasons for doing so were quite reasonable and responsible. He works the extra hours to increase his pension contribution and eventual entitlement because, of course, he is new to that particular workforce later in age and because of the financial requirements he faces in looking after the children. Mr. Farrell said that he intends to cut down his hours of work to a reasonable level after the next 18 months or two years: first, because of the stress and demands of an enhanced work schedule but, more importantly, because of his constant appreciation of the dangers of the level of radiation surrounding him (although he admitted that his dosimeter had not yet given him any warnings). I think his proposition, essentially that he would eventually reduce to a normal work schedule, is reasonable and prudent.
[26] Exhibit 2, tab D, is a letter from Ms. Tscherner’s tort solicitors, Dyer Brown in London, reviewing the fact that she settled her claims and received proceeds of $291,340 from the defendant’s insurer, of which $150,000 was attributable to future loss of income. A further claim against Economical for future accident benefits was simultaneously settled for $163,400 as a pro-rated figure for income loss extending to age 65 and beyond. That figure for income loss flowed from a total recovery of $235,000 which was reduced to $195,960 after fees and disbursements.
[27] Ms. Tscherner agreed in her examination in-chief that she is entitled to approximately $50,000 representing the present value of the matrimonial home of $160,000 less the balance owing for principal and interest on the mortgage of about $60,000. Adding the money received representing future income replacement of $313,400 and the owed equity of $50,000, Mr. Dick argues that there could be a fund equivalent to approximately $363,400 available to help to gain some appreciation of Ms. Tscherner’s financial circumstances in the future. Surprisingly, Mr. Skuce pointed to the fact that Ms. Tscherner has chosen to simply invest the money she received which generates approximately $1,000 monthly in taxable interest. He says the corpus of the income replacement fund is immune from consideration for the purposes of spousal support, but offers no authority or rational to provide a basis for that, I think incorrect, proposition.
[28] Mr. Dick mentioned certain propositions in his argument which Mr. Skuce clearly accepted for the purposes of determination of the issues in this case. Mr. Dick said that Sunlife Financial and Manulife each offer annuities, guaranteed for 20 years but payable for life, which would generate a four percent payment to Ms. Tscherner. Mr. Dick argued that, even at three percent, a sum of $363,400 would produce $1,090 monthly which, added to a $1,200 grossed-up Canada Pension Plan payment, would be $2,290.
[29] That guaranteed income, if invested as Mr. Dick suggests would be reasonable and expected in these circumstances, would yield an annual income for support purposes of approximately $27,500.
[30] Ms. Tscherner gave evidence in cross-examination about her commencing a now established business in 2011 called Tush Productions. She sells photographs she has taken over the internet and engages in a number of different levels and types of photographic work. She paints and maintains an active internet site, attending local art exhibits and attempting to sell at retail at various art shows across the country.
[31] Taking all of these financial considerations into account, it seems to me that Ms. Tscherner will be assured of an income in excess of $30,000 in the years to come and, with luck, will be able to increase that figure as time goes by. She is still capable of engaging in certain aspects of the photography business although I do accept her evidence that there are certain aspects of weddings and other events which require heavy equipment to be moved around that are probably beyond her capacity. Overall, I was most impressed with her ability and desire to improve her financial lot in future.
[32] In this unusual case, I am not inclined to apply the Spousal Support Advisory Guidelines. In Rogerson and Thompson, The Spousal Support Advisory Guidelines: A New and Improved User’s Guide to the Final Version, March 2010 Department of Justice (Canada), the authors state at page 43:
(d) Illness and Disability (FV 12.4)
A disproportionate number of cases that come before the courts involve the illness or disability of the recipient spouse, as these are hard cases that don’t settle. Especially difficult are the cases that involve permanent illness or disability after a short-to-medium marriage. The law in these cases is particularly uncertain and confused at the moment, as the courts can’t seem to work out a consistent approach. The Supreme Court of Canada addressed some of these issues in Bracklow, but we see the effects of its lack of guidance in these cases. Illness and disability was recognized as an exception in the Draft Proposal, but even the scope and operation of the exception is hard to nail down under the current law.
[33] The Spousal Support Advisory Guidelines clearly recognize that conditions of disability and illness of a recipient spouse can be generated in and by so many different factual constellations that individual circumstances must be viewed separately. Even using Mr. Skuce’s compromise position that Mr. Farrell’s future income for spousal support purposes could be viewed reasonably at $100,000, the mid-range produced by the custodial-payor, Spousal Support Advisory Guidelines is over $1,150. In my view, that is inappropriate in the circumstances and I cannot apply the Guidelines to this particular determination of spousal support. My reasons for this are as follows:
Most importantly, Ms. Tscherner’s diminished income potential from her disability is absolutely unrelated to either the marriage or the breakdown of the marriage. It occurred years after the separation;
Mr. Farrell’s dramatically increased income level commenced itself only years after the separation and even after the injuries were sustained by Ms. Tscherner. Before that, he was in a much weaker circumstance financially and had been that way for four years after the separation. Ms. Tscherner previously had skills, worked hard and was well paid for her efforts;
There was little evidence before me that any substantial economical merger occurred in this marriage, although Mr. Farrell may have received some small benefit from Ms. Tscherner’s substantial income in the short time when he was upgrading his Grade 12 marks;
The most that can be said is that Ms. Tscherner could have looked to Mr. Farrell’s significant income after her disability had they remained together. She lost that prospect because of the breakdown of the marriage;
While there is a present significant disparity in income, disparity as between two former spouses in itself has never been a basis for entitlement or, I suggest, a determination of quantum: see Farrar v. Farrar (2003), 32 R.F.L. (5th) 35 (Ont. C.A.) and the annotation of Professor McLeod at page 36;
While her income at an imputed $30,000 is not what Ms. Tscherner used to earn, she is above the poverty level and, unlike some others, assured of receipt of income in the future. In addition, she possesses over $500,000 in assets, a much more significant position than that of Mr. Farrell, although I am acutely aware that that fund is already being employed in part as a measure upon which to impute future income;
Last, although Ms. Tscherner shows a significant budget shortfall in her September 23, 2013 financial statement, there are some unusual expenses claimed: for example, dental expense of $333.33 monthly and “other expenses” of $550 monthly. No explanation was proffered for either of these costs and at least $10,000 of Ms. Tscherner’s claimed annual expenses are quite suspect.
[34] In my view, an appropriate award of spousal support is in the monthly amount of $700 commencing April 1, 2014. While my rejection of the SSAG may seem wrong to some, the facts of this case are quite unusual and deserve special treatment if, as Bracklow instructs us, these issues are case-specific and depend on the particular facts before the court. I am sure some others would vigorously maintain that Ms. Tscherner’s disability, unrelated to the marriage and so substantially post-separation, should lead to no entitlement to spousal support.
CHILD SUPPORT FOR BRIGETTE AND CALLAGHAN
[35] Mr. Farrell advances a retrospective child support claim on behalf of Brigette, although the parties agree that, after June 1, 2014, there should be no child support paid for her. With respect to Callaghan, the child support claim is continuing and I will deal with these in reverse order.
[36] First, concerning Callaghan, s. 2(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) c.3, as amended, defines a child of a marriage for whom support is payable, in part, as follows:
“child of the marriage” means a child of two spouses or former spouses who, at the material time,
(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.
[37] Mr. Skuce disputes Callaghan’s entitlement to child support. I find, however, that he falls within the statutory definition. Ms. Tscherner describes Callaghan as “doing one English course” which, she testified, consists of two hours a day at his home (according to his statements to her). He tells her that he does not attend classes and, in her words, “he plays games, I guess” at home. Mr. Farrell was considerably more expansive in his description. Callaghan takes “an English package” at home and hopes to have a grade 12 diploma by June of this year. He testified that Callaghan has always been diagnosed with a non-verbal learning disorder which causes consequent problems in the study of English. Reportedly, he has always had difficulties with school and, before separation, had needed expensive tutoring. He was treated with Ritalin for a while and has always appeared, to his father, slightly introverted, anxious and frustrated. Callaghan, unfortunately, acts out on occasion as a result of his various psychological weaknesses.
[38] Callaghan, too, gave evidence. He said he has had problems with his schooling and cited disagreements with his father over time. He was diagnosed with an attention deficit disorder early in life and took medication when he was younger. He denied suffering from any other disabilities but did admit that he had trouble staying focused and has difficulty reading, spelling, retaining information and remembering what he is trying to learn. In his present high school course he has schoolwork sent to him, in which he engages himself one to two hours a day before sending the work back by computer for correction.
[39] In his last year of attendance at high school, Callaghan described problems with arguments with his mother. He worked at McDonald’s for two or three months but was fired because he misread his scheduled shift assignment and missed work. He seemed to me a quite honest and forthright boy who admitted that he was looking for work in the “fast food” industry. He said, however, that if he were not living with his parent he would be “on welfare” or “on the street” as he “would have nowhere else to go.” Fortunately, he appears to be in a loving relationship with both his mother and father. He has helped the former with her weekend art exhibits in Port Stanley and the surrounding area, setting up and arranging her wares for possible sale. He still has the many benefits of his accustomed home, surroundings and the support of Mr. Farrell.
[40] Post-secondary education pursued honestly, illness and disability being, by statute, factors which may prevent a child from withdrawing for parental charge and obtaining the necessaries of life independently, the authorities require some kind of a factual basis for continuing support: Noseworthy v. Noseworthy, 2008 CarswellOnt 4055 (Sup. Ct.). Again, each case is decided on its own facts: Luca v. Luca, 2010 CarswellOnt 8956 (Sup. Ct.). In my view, Callaghan remains within the definition of a “child of the marriage” in the Divorce Act and Mr. Farrell is entitled to support.
[41] With respect to Brigette, Mr. Farrell advances a retrospective claim, the principles surrounding which are nicely summarized by Perrell J. in Murphy v. Murphy (2013), 2013 ONSC 7015, 117 O.R. (3d) 749 (Sup. Ct.):
[80] In S. (D.B.) v. G. (S.R.), 2006 SCC 37, [2006] 2 S.C.R. 231 (S.C.C.), the Supreme Court of Canada directed that before making any retroactive award for support, the court should consider (a) reasonable excuse for why support was not sought earlier; (b) conduct of the payor parent; (c) circumstances of the child; and (d) hardship occasioned to the payor by a retroactive award. The court also stated that none of these factors is decisive, and that a court should strive for a [page769] holistic view of the matter and decide each case based on its particular factual matrix.
[81] Earlier case law had held that the court should include a variety of criteria before making a retroactive order. The criteria include (a) the needs of the child; (b) the payor's ability to pay; (c) blameworthy conduct by the payor; (d) whether the custodial parent needed to encroach on capital or to incur debt to meet the expenses of the child; (e) the excuse for any delay in bringing the application and the significance of that delay; (f) notice to the payor spouse; (g) any unreasonable burden on the payor spouse that would interfere with the payor's ability to pay ongoing support; and (h) whether the only purpose of the retroactive award was to redistribute capital or effectively award spousal support: Walsh v. Walsh (2004), 69 O.R. (3d) 577, [2004] O.J. No. 254 (C.A.); Marinangeli v. Marinangeli (2003), 66 O.R. (3d) 40, [2003] O.J. No. 2819 (C.A.). See, also, Connelly v. McGouran, [2007] O.J. No. 3201, 2007 ONCA 578.
[42] Brigette is in her fourth year at Western University. Her hope is to take up graduate studies in the History of Medicine. At various times, she has lived with friends in an apartment, with her father and with an aunt while attending school throughout her education. The parties agree that Ms. Tscherner should not be required to pay child support for Brigette after May, 2014. They do not agree on her liability for the retrospective claim.
[43] In my view, the basis for a retrospective order for child support falls far short, in an evidentiary sense, of the budget, expense and income information needed for the proper assessment required in the usual case: Rasavi-Brahimi v. Ershadi (2007), 2007 ONCJ 406, 43 R.F.L. (6th) 439 (Ont. C.J.); Collins v. Collins (2010), 86 R.F.L. (6th) 356 (Nfld. T.D.). The following specific factors are important:
Shortly after separation, the parties entered implicitly into the standstill agreement to which I have referred;
As I found as a fact, Ms. Tscherner abruptly stopped her contribution to the support of the children in February, 2008, well before she was injured in the motor vehicle collision;
Since her injuries, Ms. Tscherner has received a number of different forms of income replacement in apparently unknown amounts, the majority coming as late as the September, 2013 settlements. As a result, it is impossible on this deficient evidentiary record to determine what might, or should, have been paid. At the same time, it is apparent that Ms. Tscherner received only the minimum amount on which to exist after the collision, pending resolution of her legal claims;
Brigette is left with considerable student loan debt, perhaps $24,000 at this juncture, which could have been ameliorated by some attempt to contribute to child support;
There is absolutely no doubt that Ms. Tscherner should have paid over the $7,500 RESP the parties had generated for Brigette’s university education, instead of cashing it and taking the funds for her own purposes. If she would say that she had to have the money to live herself after the collision, she did not do so.
[44] Taking into account the general principles applicable to retrospective child support and the particular facts of this case, an attempt at the required holistic analysis leads me to order Ms. Tscherner to pay $17,500 in lump sum past child support, mainly for Brigette, but also for Callaghan in the periods when he lived with Mr. Farrell.
[45] Ms. Tscherner will pay Guideline child support for two children to Mr. Farrell – based on an imputed annual income of $30,000 – in the amount of $438 commencing April 1, 2014. On June 1, 2014 the required child support (for Callaghan alone) will be reduced to $245.
EQUALIZATION
[46] Much of the evidence at trial concerned marriage and separation date values of assets and the calculation of the parties’ net family properties. At the end of the day, I accepted Mr. Farrell’s Net Family Property statement as a fair reflection of the respective values. That document (Exhibit 16) – when Ms. Tscherner’s separation date value for used photography equipment is included – shows a net value her value of $35,274 and $33,332 for Mr. Farrell, necessitating an equalization payment of $971 to him.
PROPERTY DIVISION
[47] Mr. Farrell has claimed an order for the sale of the former matrimonial home or an order vesting title to the property in his name. There is a real jurisdictional problem with respect to the latter claim: see Zavarella v. Zavarella (2013), 2013 ONCA 720, 117 O.R. (3d) 641 (C.A.) and Buttar v. Buttar, 2013 CarswellOnt 11488 (C.A.). In any event, in both the evidence and submissions, there was an implication that the parties were ready to move on to separate their lives and their assets. I would hope that this is the case and that they will be able to negotiate and effect the transfer of Ms. Tscherner’s interest in the home. If they are able to proceed reasonably quickly, Ms. Tscherner should have the retrospective child support award of $17,500 deducted from her share, together with her half of the $5,400 roof repairs admittedly effected by Mr. Farrell. I am not prepared, at this juncture, to require Ms. Tscherner to account for or deduct a portion of the mortgage principal paid down by Mr. Farrell since separation. Needless to say, if the parties are unable to arrange terms of a transfer of the real property, I may be spoken to concerning an order for sale. All these issues could be fully discussed at that time, with further evidence addressed to that point. I remain seized.
COSTS
[48] Counsel may make submissions with respect to costs in letter form addressed to me in the care of the trial coordinator within 30 days. I want to know particulars of offers to settle, if any, and when they were made. Submissions must be brief.
“Justice Henry Vogelsang”
Justice Henry Vogelsang
Released: March 17, 2014
COURT FILE NO.: St. Thomas 5905/12
DATE: March 17, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Karen Lynn Tscherner
Applicant
- and -
John Patrick Farrell
Respondent
REASONS FOR JUDGMENT
VOGELSANG J.
Released: March 17, 2014