Pate v. Pate, 2015 ONSC 2024

COURT FILE NO.: FD927/14

DATE: March 30, 2015

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: Laura Jean Pate, applicant

AND:

Robert Pate, respondent

BEFORE: MITROW J.

COUNSEL: Anthony Little, Q.C for the applicant Laura Pate Michael Nyhof for the respondent Robert Pate

HEARD: February 11, 2015

ENDORSEMENT

INTRODUCTION

[1] This is the respondent husband’s motion for interim spousal support and an order that he remains covered under any health benefits available from the applicant wife.

[2] The central issue in the motion is whether interim spousal support should be ordered given the marriage contract signed by the parties on July 13, 2006 that contains mutual waivers of spousal support.

BRIEF BACKGROUND

[3] The applicant is age 54 and the respondent is age 47. They were married on July 15, 2006 and separated May 9, 2014. There are no children.

[4] The respondent deposes that he has been an alcoholic since 1995. He makes no effort to hide that fact and makes the admission freely in his affidavit material. The respondent also deposes that he was diagnosed with anxiety and depression by Dr. Chamberlain, a psychiatrist, and for which the respondent is prescribed antidepressant medication. The respondent attaches a print-out of his prescription history listing his prescribed prescriptions.

[5] The respondent’s financial statement discloses a monthly income of $626 that is described as “social assistance income (including ODSP payments)”. He states in his financial statement that his gross income from all sources for the last year was $10,000. The respondent attaches no income tax returns or notices of assessment to his financial statement.

[6] There is a substantial irreconcilable dispute in the affidavit material as to the respondent’s role in the marriage.

[7] The respondent submits that he spent substantial time looking after and/or renovating some properties owned by the applicant.

[8] The applicant in contrast, minimizes what the respondent did during the marriage including the extent of the respondent’s alleged renovations and up-keep relating to her properties. She complains about the respondent’s excessive alcohol consumption and the fact that this prevented him from obtaining any type of long-term gainful employment during the marriage. The applicant further complains that the costs of the alcohol consumed by the respondent, and his lack of steady employment, added financial stress to the relationship.

[9] The applicant is gainfully employed and her financial statement discloses an income of $78,216. The applicant’s notices of assessment for 2011, 2012 and 2013 disclose, respectively, line 150 incomes of $95,077, $68,415 and $53,772.

[10] The parties also had a conflictual relationship at times, with one of the results being a restraining order made against the respondent which from time to time has been extended. Consistent with the significant conflict in the affidavit material as to the respondent’s role in the marriage, this conflict also spills over in relation to the circumstances surrounding the execution of the marriage contract.

[11] The respondent deposes that on July 13, 2006, (being two days before the date of marriage), that the applicant drove him to see her lawyer. It is the respondent’s evidence that after he met the applicant’s lawyer that he was presented with a marriage contract and he was told that he had to sign the marriage contract or “we wouldn’t get married in 2 days as planned”.

[12] The respondent then completes the narrative by deposing that at the time he attended at the applicant’s lawyer’s office that he, being the respondent, was under the influence of alcohol “having imbued about 10 or 12 beers”. He deposes he did not understand the contract, did not know what rights he was giving up and that he did not have time to retain counsel.

[13] The applicant, for her part denies making any statement about not being married if the respondent refused to sign the marriage contract. The applicant deposes that the respondent was not intoxicated. The applicant told him that she wanted the contract as she owned property and wanted to ensure that that property was preserved. The applicant described the respondent as being angry about it but nevertheless signing the marriage contract.

[14] It is the respondent’s evidence that since the separation in May 2014, that he has tried to become productive, including counselling and applying for work, but has not been successful. He deposes that he lives with his mother and that he pays her $450 per month rent out of his social assistance.

DISCUSSION

A. The Effect of the Marriage Contract

[15] Despite Mr. Little’s able and forceful argument that the motion for interim spousal support should be dismissed and that the trial judge should decide first whether the marriage contract is upheld before any spousal support is ordered, I find myself unable to agree that the marriage contract should be a bar to an order for interim spousal support.

[16] This is a divorce action and the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) c.3 [as am. by S.C. 1997, c.1] obligates the court, in making an order for interim spousal support, to consider the factors set out in s. 15.2(4) and the objectives set out in s. 15.2(6).

[17] It is salient that the existence of an agreement relating to the support of either spouse is only one of the factors to be considered in s. 15.2(4). The other two factors deal with length of time the spouses cohabited, and the functions performed by each spouse during cohabitation. The parties have cohabited for close to 8 years and it is clear that during their relationship, and notwithstanding the substantial conflict in the evidence, that the applicant was the primary income earner and that the respondent was financially dependent on the applicant.

[18] In relation to the consideration of the relevant objectives that are set out in s. 15.2(6), it is apparent that at least in the short term, that the respondent sustained greater economic disadvantage as a result of the breakdown of the marriage. The respondent is on social assistance; he does have need for spousal support and the applicant has sufficient income to pay spousal support.

[19] This brings me to the consideration of the marriage contract as one of the factors: s. 15.2(4)(c).

[20] It is relevant to consider Miglin v. Miglin, 2003 SCC 24 (S.C.C.), even on a motion for interim support where a support order is being sought that is inconsistent with an existing agreement. Miglin sets out a two stage analysis: the first stage of the analysis requires the court to look at the circumstances of the execution of the agreement, and also the substance of the agreement which requires the court to determine the extent to which the agreement takes into account the factors and objectives listed in the Divorce Act; and the second stage of the analysis requires the court to assess the extent to which enforcement of the agreement still reflects the original intention of the parties and the extent to which the agreement is still in substantial compliance with the objectives of the Divorce Act.

[21] In the case at bar, and ignoring any disputed facts surrounding the execution of the marriage contract, the following facts are not in dispute: (a) the contract was prepared by the applicant’s lawyer; (b) the parties agreed during the argument of the motion that the respondent’s signature on the marriage contract was witnessed by a clerk employed by the applicant’s lawyer; (c) although the contract contained property schedules for each party, there was no income disclosure set out in the marriage contract nor was any income disclosure exchanged prior to signing the marriage contract; (d) the contract contains mutual releases as to spousal support; (e) the respondent did not receive legal advice prior to signing the marriage contract; and (f) the marriage contract was signed two days prior to the date of marriage.

[22] Interim spousal support may be granted in spite of a waiver of spousal support contained in a marriage contract where there is a triable issue as to the enforceability of the contract: Pitchforth v. Pitchforth, 2009 CarswellOnt 4866 (S.C.J.) at para. 19.

[23] There is clear authority to order interim spousal support pursuant to the Divorce Act notwithstanding the waiver of spousal support in an existing agreement: Baudanza v. Nicoletti, 2011 ONSC 352 (S.C.J.); Chaitas v. Christopoulos, 2004 CarswellOnt 4956 (S.C.J.); and Lossing v. Dmuchowski, 2000 CarswellOnt 754 (S.C.J.).

[24] Considering the undisputed facts in relation to the circumstances of the execution of the marriage contract and other factors discussed in Miglin, I find that there is a clear triable issue as to the enforceability of the waiver of spousal support. Should the marriage contract be upheld, it will be open to the trial judge to order the respondent to return the interim spousal support payments received.

[25] The marriage contract also contains a waiver of equalization of net family property although the agreement does give the respondent a right to share in “additional equity” in relation to a specific property set out in the marriage contract.

[26] In all the circumstances this is a proper case to make an order of interim spousal support notwithstanding the waiver of spousal support contained in the existing marriage contract.

B. Amount of Interim Support

[27] The respondent submits that the spousal support should be $875 per month commencing February 1, 2015. This is the mid-range of the Spousal Support Advisory Guidelines (“SSAG”) based on an income of $75,000 being attributed to the applicant and zero income being attributed to the respondent.

[28] Although the respondent asserts that he is unable to work because of anxiety and his alcohol dependency, I draw an adverse inference against the respondent for his failure to provide any credible medical evidence to support his self-prognosis.

[29] Although the respondent deposes that he has been an alcoholic since 1995, he also deposes in a subsequent affidavit that he had his own landscaping and snow-plowing business from shortly after the parties were married until they moved to Iona Station and he claims he “earned a reasonable income” doing so. This was well after 1995 and illustrates that the respondent, despite being a self-admitted alcoholic, is capable of earning “reasonable income” as he puts it.

[30] The only medical information provided by the respondent is a form used by the Ministry of Community and Social Services titled “Limitations to Participation”. That form was signed by Dr. Hammond, on June 26, 2014, so it is somewhat dated. In any event the only description of the medical limitations is not sufficiently legible. The form in relation to description of medical conditions indicates “anxiety and depression – previous alcohol abuse”. However what is unclear and is quite important, are the first two words, which appear to be the words “states has”, and which if true, would mean that the medical report is little more than a self-report.

[31] I give very little weight to this medical report. It is not legible, and in any event, its brevity, coupled with no information on the respondent’s ability to work, give it no probative value.

[32] I also draw an adverse inference against the respondent for failing to attach any income tax returns or notices of assessment to his financial statement, particularly when there is an indication that he earned $10,000 the previous year.

[33] In the circumstances, and based on the evidentiary record, I am far from satisfied the respondent is as unable to earn any income. For the purpose of this motion I impute $15,000 income to the respondent, which is less than minimum wage and likely on the modest side.

[34] Accordingly, considering the SSAG calculations set out in exhibit number 1 filed on behalf of the respondent, I make one adjustment to that calculation by using $15,000 income for the respondent which therefore leaves a gross income difference for SSAG purposes of $60,000 rather than $75,000.

[35] In the circumstances I find that $600 per month spousal support is appropriate. This is the low end of the SSAG range for a gross income difference of $60,000 ($60,000 x 1.5% x 8 years divided by 12 equals $600 per month). Support shall commence February 1, 2015.

[36] If the applicant has healthcare benefits with her current employer then there is no reason why the respondent should not be covered and that is reflected in the order below.

ORDER

[37] For reasons set out above an order shall issue as follows:

1. Pursuant to the Divorce Act, the applicant shall pay to the respondent interim spousal support in the amount of $600 per month commencing February 1, 2015;

2. Effective February 1, 2015, the applicant shall maintain dental, medical and extended health care coverage for the respondent for so long as such coverage is available to the applicant through her employment and the respondent is eligible for such coverage;

3. This order is without prejudice to the respondent’s right at trial to request that spousal support should commence prior to February 1, 2015;

4. If the parties cannot agree on the costs of the motion, then the parties shall forward written costs submissions to the trial coordinator. The respondent shall forward his submissions within 14 days, the applicant shall forward her responding submissions within 14 days thereafter and the respondent shall forward his reply, if any, within 7 days thereafter. Each set of submissions shall not exceed 2 typed pages, double-spaced, plus copies of any time dockets, offers and authorities.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: March 30, 2015