CITATION: Ryder v. Walker, 2015 ONSC 2332
COURT FILE NO.: FS-14-3801-00
DATE: 20150421
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Donald Hugh Ryder
Self-Represented
Appellant
- and -
Susan Thelma Walker
Self-Represented
Respondent
HEARD: December 15, 2015
REASON FOR JUDGMENT
André J.
[1] The appellant, Mr. Ryder, appeals the decision of Justice Clay, in the Ontario Court of Justice ordering him to pay spousal support to his wife for nine and a half years. Mr. Ryder, who is unrepresented submits that Justice Clay committed a number of errors of law including the following:
The trial judge erred in law when he decided that Mr. Ryder was obligated to pay spousal support to Ms. Walker.
The trial judge did not articulate how and why he determined the quantum and duration of spousal support he should pay to the respondent, Ms. Walker.
The trial judge failed to assess Ms. Walker’s credibility when she testified that she had made reasonable efforts to find gainful employment following the couple’s separation.
The trial judge erred in law by failing to impute a certain quantum of income to Ms. Walker for the three years she remained unemployed after the parties separated.
BACKGROUND FACTS
[2] Mr. Ryder and Ms. Walker were in a common law relationship from 1996 to March 1, 2009.
[3] They have three children, Jackson Ryder born July 29, 1983, Carson Ryder born May 16, 2001, and Addison Ryder born December 18, 2003.
[4] Mr. Ryder and Ms. Walker entered into a Separation Agreement dated December 7, 2010. They each had counsel during the negotiation and signing of the Agreement.
[5] Pursuant to the terms of their Agreement they were to share joint custody of the three children. They went to mediation and their mediated parenting plan was incorporated into their Separation Agreement.
[6] The children alternated residences every week in accordance with the parenting plan until May 2011 when the eldest child Jackson went to primarily reside with the Applicant.
[7] At the time of the Agreement both parties were unemployed. For the purposes of child support Ms. Walker was deemed to have an income of $30,000 and Mr. Ryder was deemed to have an income of $120,000. After a set off of table child support Mr. Ryder was required to pay the Applicant the sum of $1,500 per month. The Agreement included provisions for the payment of child support once the parties obtained employment.
[8] The Agreement’s provisions with respect to spousal support were as follows:
12.1 Nothing in this Agreement affects either Party’s right to or obligation for spousal support for any period of time after December 1, 2010. This acknowledgement is not an admission of liability by either Party.
[9] Mr. Ryder obtained employment in January 2011. He was subsequently laid off from that position on February 7, 2013. He was paid till March 18, 2013 and collected E.I. benefits before finding new employment in July 2013. The court ordered reduced child support for those months of unemployment. Mr. Ryder now earns approximately $130,000 per year with a chance to earn a bonus of up to 15% of his salary.
[10] Ms. Walker obtained employment in December 2012 as a receptionist and subsequently moved to an administrative assistant position in May 2013. She earned approximately $35,000 per year at the time of the trial.
[11] Ms. Walker sought advertising positions between 2009 to 2012 but could not find a comparable position to the one she held before she became unemployed.
JUSTICE CLAY’S DECISION
[12] Ms. Walker commenced proceedings for spousal support in September 12, 2012. The matter came up for trial before Justice Clay of the Ontario Court of Justice in 2014. Justice Clay rendered his decision on July 22, 2014. He ordered that:
- The Respondent shall pay to the Applicant child support for the children Jackson Ryder born July 29, 1998, Carson Ryder born May 16, 2001, and Addison Ryder born December 18, 2002 in the amount of $1,806.00 per month beginning August 1, 2014.
This amount is based upon the Respondent’s estimated 2014 income of $130,000.00 and the Applicant’s estimated 2014 income of $35,000.00.
This amount is also based upon a time sharing arrangement in which the child Jackson primarily resides with the Applicant and the children Carson and Addison divide their time equally between the parties.
The Respondent shall pay to the Applicant arrears of child support for the said children fixed in the amount of $4,192.00. This payment shall be made through the Family Responsibility Office prior to December 31, 2014.
The Respondent shall pay 70% of the children’s s.7 expenses incurred after August 1, 2014.
The Respondent shall pay the Applicant spousal support in the amount of $1,300.00 a month beginning August 1, 2013.
The spousal support arrears created by this order shall be paid at the rate of $300.00 a month beginning August 1, 2014.
Spousal support shall terminate on December 31, 2022 unless sooner terminated by court order or agreement.
ANALYSIS
[13] This appeal raises the following questions:
Did the trial judge err in law when he decided that Mr. Ryder was obligated to pay spousal support to Ms. Walker?
Did the trial judge err in law in concluding that Ms. Walker had made reasonable efforts to obtain employment in her field, between 2009 and 2012?
Did the trial judge err in law by failing to impute an income of $75,000 to Ms. Walker?
Did the trial judge err in law in concluding that Mr. Ryder should pay spousal support of $1,200 monthly to Ms. Walker until December 31, 2022?
ISSUE NO. 1
[14] Did the trial judge err in law by concluding that Mr. Ryder was obligated to pay spousal support to Ms. Walker?
[15] In determining whether Mr. Ryder was obligated to pay spousal support to Ms. Walker, the trial judge at paragraph 49 of his decision, first examined s.30 of the Family Law Act, R.S.O. 1990, C.F.3 (FLA) which deals with the obligations of spouses for support. Section 30(8) of FLA sets out the purposes of an order for support of a spouse while s. 30(9), sets out the criteria for the determination of the quantum and duration of the spousal support to be paid.
[16] The trial judge concluded that Mr. Ryder was required to pay spousal support to Ms. Walker. He noted at paragraph 79 of his decision that:
I find that there is an entitlement to support. The parties lived together for 11 years, they have three dependent children and there is a significant gap in their incomes. The Applicant correctly argued that the basis for support in this matter was non-compensatory. The support claim is based upon need and not upon the roles adopted during the relationship.
[17] In my view, there was ample evidence to support the trial judge’s conclusion. There is no dispute that the parties resided together for 11 years. Neither is there any dispute that they have three children or that there is a significant gap in their incomes. Mr. Ryder earns approximately $130,000 annually while Ms. Walker earned approximately $35,000 annually at the time of the trial.
ISSUE NO. 2
[18] Did the trial judge err in law in deciding that Ms. Walker had made reasonable efforts to obtain employment?
[19] The only issue raised by Mr. Ryder regarding Ms. Walker’s eligibility to receive spousal support was whether or not Ms. Walker had made diligent efforts to obtain employment in her chosen field in which, prior to her being laid off in 2009, she earned $85,000 annually.
[20] Regarding this issue, the trial judge concluded at paragraphs 84 and 85 of his decision that:
I find no evidence that the Applicant chose not to seek work that could match the compensation that she had in 2009. She took a computer course. The records she was able to produce showed that she applied for work in her field exclusively until July 2011 a period of 2 years. It was reasonable of her to widen her job search after that time and she did so. However she continued to apply for managerial supervisory positions.
I find that the Applicant had an obligation to maximize her income earning capacity and that on the evidence before me that she did so. I expect that it must have been difficult for an advertising manager to accept a receptionist position but the Applicant did that in December 2012. She then took another job for more pay soon afterwards. I am confident that if the Applicant has the opportunity to narrow the income gap between herself and the Respondent that she will seize that opportunity.
[21] Ms. Walker presented evidence, which the trial judge accepted, that she made diligent efforts to find a job which would pay her a salary equal to that which she had earned before she was laid off in 2009. She filed a “Job Application Log” at trial which indicated that she unsuccessfully applied for a number of managerial and supervisory positions from August 25, 2009 to July 20, 2011. After that date she expanded her search to include administrative assistant positions without any success. Ms. Walker applied for 61 positions between August 2009 and September 2012. She further testified that within that period, she applied for additional jobs by e-mail but lost this data because of problems with her computer.
[22] Mr. Ryder submits that Ms. Walker was not sufficiently diligent in seeking employment that paid an income roughly equivalent to her income prior to her job loss. He points to the fact that he applied for hundreds of jobs, used 29 recruiters and had 50 interviews.
[23] The fact that Mr. Ryder made successful efforts to secure employment in his chosen field does not mean that Ms. Walker was not diligent in her search for a job. She clearly did not cease all efforts to obtain employment and to the contrary, sought re-employment in the advertising field. When these efforts failed, she widened her search for other employment and succeeded in obtaining employment.
[24] There is simply no evidence to support Mr. Ryder’s contention that Ms. Walker made a choice not to actively seek employment after losing her job.
ISSUE NO. 3
[25] Did the trial judge err in law by failing to impute an income of $75,000 to Ms. Walker?
[26] A court may impute income to a spouse where he or she is intentionally unemployed or under-employed: Drygala v. Pauli (2002), 61 O.R. (3d) 711, 2002 41868, (Ont. C.A.). It is unnecessary to find that the self-induced unemployment or under-employment is motivated by a desire to evade support obligations: Montgomery v. Montgomery (2000), 2000 NSCA 2, 181 D.L.R. (4th) 415, 3 R.F.L. (5th) 126 (N.S.C.A.).
[27] The trial judge found as a fact that Ms. Walker was not intentionally unemployed or under-employed. Between 2009 and 2012, she tried to obtain employment in her field without success. She then broadened her search for employment outside her chosen field and managed to secure employment, albeit at a reduced income.
[28] In my view, it was open to the trial judge to arrive at that conclusion and concomitantly, not to impute an income of $75,000 to Ms. Walker.
[29] Accordingly, this ground of appeal must fail.
ISSUE NO. 4
[30] Did the trial judge err in law in concluding that Mr. Ryder should pay spousal support of $1,200 monthly to Ms. Walker until December 31, 2022?
[31] In answering this question I am guided by a number of overarching principles that apply in deciding this appeal. The first emerges in the following passage of the Supreme Court of Canada’s decision in Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518, [1999] S.C.J. No.9, at paras 10 and 12:
When family law legislation gives judges the power to decide on support obligations based on certain objectives, values, factors and criteria, determining whether support will be awarded or varied, and if so, the amount of the order, involves the exercise of considerable discretion by trial judges. They must balance the objectives and factors set out in the Divorce Act or in provincial support statutes with an appreciation of the particular facts of the case. It is a difficult but important determination, which is critical to the lives of the parties and to their children. Because of its fact-based and discretionary nature, trial judges must be given considerable difference by appellate courts when such decisions are reviewed.
This standard of appellate review recognizes that the discretion involved in making a support order is best exercised by the judge who heard the parties directly. It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court will have a different appreciation of the relevant factors and evidence. This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge. Though an appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently.
[32] In the same vein, L’Heureux-Dube J. reaffirmed at page 833 of Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813 (S.C.C), the Ontario Court of Appeal’s decision in Harrington v. Harrington, (1981), 1981 1762 (ON CA), 33 O.R. (2d) 150, at page 154 that:
As far as the applicable standard of appellate review is concerned I am of the view that we should not interfere with the trial Judge’s decision unless we are persuaded that his reasons disclose material error and this would include a significant misapprehension of the evidence, of course, and, to use familiar language, the trial Judge’s having “gone wrong in principle or (his) final award (being) otherwise clearly wrong”: Atwood v. Attwood, [1986] P. 591 at p.596. In other words, in the absence of material error, I do not think that this Court has an “independent discretion” to decide afresh the question of maintenance and I say this with due respect for decisions to the contrary …
[33] The second principle concerns the duty of a trial judge to give reasons for his or her decision. In this regard, the Ontario Court of Appeal noted in Lawson v. Lawson, 2006 26573 (ONCA), at para 9 that:
It is the duty of a judge to give reasons for decision; it is an inherent aspect of the discharge of a judge’s responsibilities. See R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, [2002] S.C.J. No. 30, 162 C.C.C. (3d) 298. The appellant is entitled to reasons that are [page 326] sufficient to enable him to know why issues were decided against him. The reasons need to be adequate also so that he can bring a meaningful appeal and this court is able to properly review the Order. The reasons do not need to be perfect. Nor do they necessarily need to be lengthy. But, they must be sufficient to enable the parties, the general public and this court, sitting in review, to know whether the applicable legal principles and evidence were properly considered.
[34] In deciding the quantum of spousal support payable by Mr. Ryder the trial judge reviewed the child and spousal support calculations relied upon by Ms. Walker to show the range of spousal support suggested by the Spousal Support Advisory Guidelines (SSAG) at the income levels of both parties between 2011 and 2013. Ms. Walker’s calculations were based on an imputed income of $30,000 for the years 2011 and 2012 although her actual income during this period was significantly less than that amount. For 2013 and 2014, she used her actual income of $31,631 and anticipated income of $45,000 for 2013 and 2014 respectively.
[35] For Mr. Ryder’s income, Ms. Walker used his actual income for 2011, 2012 and 2013 of $127,599, $136,601 and $98,789, respectively. Ms. Walker sought spousal support in the mid to high range for those stated years.
[36] Ms. Walker submitted at trial that the range of spousal support payable, based on the SSAG Guidelines from 2011 to 2014, was as follows:
2011 Low $892.00
Mid $1,372.00
High $1,778.00
2012 Low $1,092.00
Mid $1,557.00
High $1,985.00
2013 Low $151.00
Mid $557.00
High $947.00
2014 Low $848.00
Mid $1,318.00
High $1,728.00
[37] In addition to reviewing these calculations filed by Ms. Walker, the trial judge also considered the factors set out in s. 30(9) of the FLA. He therefore noted at paragraph 87 of his reasons that:
I considered the factors in s. 30(9) of the FLA as follows:
(a) and (b) The Applicant has used her assets and incurred debt.
c) The Applicant has done her best to contribute to her own support.
d) The Respondent does have the ability to contribute to the Applicant’s support.
e) Both parties are 49 years old and there was no evidence lead (sic) of health concerns, They each have a lot of working years left but it is not realistic to expect the Applicant to embark upon a major career change (and it is not fair for the Respondent to pay higher support to allow her to retrain at this point).
f) The Applicant has a financial need. Need is a relative concept and in this case the determination of need should consider the parties’ former standard of living and the Applicant’s ability to provide for the three children. While the set off in child support does address the income difference, s.30 (8)(b) provides that one of the purposes of spousal support is to share the economic burden of child support equitably. The child Jackson maintains his primary residence with the Applicant and the two younger boys have equal time with each parent. A spousal support order can ensure that the standard of living in each parent’s home is not too dissimilar.
[38] The trial judge committed no error when he first determined Ms. Walker’s entitlement to spousal support and then considered the SSAG, see M. (J.A.) v. M. (D.L.), 2008 NBCA 2, 2008 CarswellNB 24, 2008 CarswellNB 25, (N.B.C.A) at para 25.
[39] While these guidelines are a “useful tool”, they do not obviate the need for an individualized analysis of the circumstances of this case: Fisher v. Fisher, 2008 ONCA 11 [2008] O.J. No.38, 2008 CarswellOnt 43,. The trial judge clearly recognized his obligations to consider the personal circumstances of Ms. Walker and Mr. Ryder, as evidenced by his consideration of the factors in s. 30(9) of the FLA.
[40] Having considered whether Ms. Walker was entitled to spousal support and the applicability of SSAG, the trial judge determined that the appropriate quantum of spousal support was $1200 monthly. This amount was less than what Ms. Walker had sought but in my view was justified given a) the economic disparity between the two litigants, b) the fact that Ms. Walker had dissipated her assets and incurred debt to pay her living expenses and c) her ability to provide for the three children of the relationship.
DURATION OF SPOUSAL SUPPORT
[41] The trial judge ordered that Mr. Ryder should be responsible for “8 years of ongoing [spousal] support.” He also ordered that Mr. Ryder should pay retroactive spousal support to August 13, 2013, rather than January 2011, as Ms. Walker suggested.
[42] The trial judge provided the following reasons for ordering payment of spousal support until December 31, 2022:
One of the reasons for the spousal support order is to address the disparity in the household incomes of these joint custodial parents. Even if the time sharing changes over the years the parties have a financial responsibility to their children until at least the time that the youngest child attains the age of 18 years and more likely for a longer period of time. The child Addison will be 11 in December 2014.
The parties’ relationship lasted 11 years. The basis of the spousal support order in this matter is non-compensatory. I find that it would not be appropriate to make a spousal support order that exceeds the length of the parties’ relationship.
For all of the above noted reasons the spousal support order will terminate on December 31, 2022 unless sooner terminated by agreement or court order due to a material change in circumstances. This is 8 years of ongoing support.
[43] I find no error in the trial judge’s decision regarding the duration of spousal support. The SSAG provide for a range of spousal support between 6.5 years and 13 years, based on the parties respective incomes, their shared custody arrangement, the child support formula, and their length of co-habitation. He opted to select a duration of support towards the lower end of the range. The fact that this court may have arrived at a different conclusion does not justify a reversal of this decision.
[44] For the above reasons, the appeal is dismissed.
André J.
Released: April 21, 2015
CITATION: Ryder v. Walker, 2015 ONSC 2332
COURT FILE NO.: FS-14-3801-00
DATE: 20150421
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Donald Hugh Ryder
Appellant
- and –
Susan Thelma Walker
Respondent
REASONS FOR JUDGMENT
André J.
Released: April 21, 2015