CITATION: Cammaroto v. Cammaroto, 2015 ONSC 3968
COURT FILE NO.: 1223-2010
DATE: 2015/06/29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Karen Michele Cammaroto
Monique Rae Bennett, for the Applicant
Applicant
- and -
Daniel Carl Cammaroto
Donald W. Kilpatrick, for the respondent
Respondent
HEARD: March 12, 13, 23, June 8, 9, 10, and 11, 2015
Aston J.:
[1] The issues in this case are the husband’s claims for equalization of net family property and spousal support. A preliminary issue is the valuation date for the purposes of equalization of net family property. The trial was bifurcated to address that preliminary issue first, following which a ruling was made with expanded reasons to follow. I will begin with that ruling.
Determination of the Valuation Date
[2] Mrs. Cammaroto asserts that the parties had separated with no reasonable prospect of a reconciliation of their relationship by May 27, 2008. Mr. Cammaroto claims that the separation date is two years subsequent to that, April 28, 2010. The parties agreed that the valuation date ought to be one or the other of these two dates, though they continued to reside together under the same roof until their matrimonial home was sold in 2011.
[3] Marital relationships cover a broad spectrum and it is difficult to pinpoint when spouses become “separated” while under the same roof. There is no checklist or test that precisely articulates the determination of a valuation date in a case such as this, though courts have articulated factors to consider. It is a fact-driven inquiry in any particular case.
[4] The absence of sexual relations is a factor but it is not conclusive. The degree to which spouses share or segregate income and expenses is important, particularly changes in those arrangements. Communication, social life, interactions with one another in public and behind closed doors all need to be considered. Mutual goals and expectations are relevant. The goal under the Family Law Act’s property provision is to fix a date on which the economic partnership should as a matter of fairness be terminated. The global question is when it was that the parties knew, or reasonably ought to have known, their spousal relationship was over and would not resume.
[5] Continuation of a marital relationship requires two people. Either spouse can unilaterally end that relationship without the consent of the other. There are many cases where one spouse knows there will be no reconciliation, but the other may not know. At the same time, the court must be careful to look for some objective evidence upon which to find a date of separation, rather than simply accepting the after-the-fact statements of the party who has decided the relationship is over.
[6] Karen Cammaroto was born October 12, 1955 and was 44 years of age when the parties married on June 20, 2000. Mr. Cammaroto is four years older.
[7] At the time they married, they had known one another just under two years. It was a long-distance courtship. Mr. Cammaroto was a resident of New York City. Mrs. Cammaroto resided in London, Ontario. Mrs. Cammaroto was in the process of obtaining her nursing credentials before the marriage. She graduated from the three-year nursing school course at Fanshawe College in June 2000, the same month as the wedding. Mr. Cammaroto had worked for many years in New York City at various jobs, primarily in the vacation travel business. Though Mrs. Cammaroto was willing to move to New York, he decided that it would be better for him to move to Canada, expecting that he would have no difficulty in quickly securing gainful employment here. By November of 2000, Mr. Cammaroto had tidied up his affairs in New York and moved to Canada and Mrs. Cammaroto had secured full-time employment as a hospital nurse.
[8] Throughout the entirety of the marriage, Mrs. Cammaroto worked 12-hour shifts as a nurse but with sporadic and inconsequential exceptions, Mr. Cammaroto did not work outside the home.
[9] I will return to the evidence on that point in the context of the spousal support claim, but it is sufficient on the property issue to observe that Mr. Cammaroto’s ongoing unemployment was a very significant cause of the break-down of the marital relationship. By about 2006 at the latest, Mrs. Cammaroto had run out of patience and had come to resent the fact that she was the only one putting money into their joint household account.
[10] I accept Mrs. Cammaroto’s evidence that her husband’s alcohol consumption also exacerbated the break-down of the marital relationship. Though Mr. Cammaroto denies that he is an alcoholic, he does admit that he drinks beer every day and the evidence establishes that at on two occasions he ended up in hospital as a consequence of his alcohol consumption. The first hospitalization in 2002 was a wake-up call for Mrs. Cammaroto as to just how serious her husband’s drinking was, but to this day Mr. Cammaroto denies that any hospitalization has been conclusively linked to his alcohol consumption.
[11] By 2005 communication between the Cammarotos had broken down to the point that Mr. Cammaroto began communicating in large part by giving his wife notes and lists.
[12] Mrs. Cammaroto testified that her husband’s behaviour and attitude ostracized her from her own friends and relatives. I accept her evidence. I also accept her evidence that the parties rarely ate together between 2008 and 2010 and had no meaningful social life together.
[13] By 2005, she was sleeping on the living room sofa. Mrs. Cammaroto testified that her sleeping on the sofa was triggered by her husband treating her grown sons rudely and making them feel uncomfortable in her home. He called the police to complain about one of her sons. Mr. Cammaroto does not deny her evidence that their sexual relationship ended in 2005 and never resumed after her move to the sofa. There was a second bedroom in the home which Mrs. Cammaroto wanted to use but Mr. Cammaroto would not let her set it up as a separate bedroom. However, three years later in 2008, he moved into the second bedroom and Mrs. Cammaroto moved back into the master bedroom.
[14] Sometime in 2008, or perhaps earlier, Mr. Cammaroto went to a lawyer and then presented his wife with the first page of a “draft” letter written by the lawyer dated May 27, 2008. See Exhibit 9. By this time, Mr. Cammaroto had put a lock on his room where he kept all his personal papers and his computer. Mrs. Cammaroto regarded the letter as some form of tactical maneuver by her husband.
[15] The evidence includes police occurrence reports going back to early 2009. On each occasion it was Mr. Cammaroto who called the police. A review of the police reports discloses that on several occasions Mr. Cammaroto had been drinking to excess according to the police. On none of the occasions were there any consequences for anything Mrs. Cammaroto had done to prompt the call. Mr. Cammaroto explained that the reason he called the police was because they were arguing and he was afraid that she would provoke him and that he would hit her.
[16] Mr. Cammaroto does not dispute that the police believed him to be intoxicated on occasion when they were called to his residence but he disputes the truth of that belief. He says he was never intoxicated during any police intervention because he has a “great tolerance for alcohol”. He admits that he drinks six to ten cans of beer every day, seven days a week and admits that his doctor and others might call it “alcohol abuse” even though he doesn’t think of it that way.
[17] Mrs. Cammaroto testified that she was trapped in the relationship for many years because she could not get Mr. Cammaroto to leave and she could not afford to carry two residences making her (in her words) “a prisoner” in the matrimonial home.
[18] In 2009, Mrs. Cammaroto did agree to go to counselling with her husband and they attended five sessions between February and April. Though she went, she was not interested in exploring reconciliation or even efforts to improve communication between them. In her view, the counselling was fruitless from the beginning but she participated in the hope that it might lead to a voluntary separation. I accept her evidence on that point. Mr. Cammaroto was still calling the police during the currency of the counselling.
[19] On September 24, 2009, Mrs. Cammaroto wrote a letter or note to her husband in which she suggested that they sell the condo and move to a different residence. I accept her explanation that she did not really intend to live together with Mr. Cammaroto at a new residence, but that this was a ploy to get him to agree to sell the condo so she could effect a separation.
[20] Mr. Cammaroto explained that he first saw a lawyer to get advice on separation and family law issues in 2008. He testified that it was not to initiate anything but to “forearm myself” with information.
[21] Mr. Cammaroto admitted on cross-examination that his wife stopped sleeping in the master bedroom “probably” sometime before he went to a lawyer in 2008 and that they never resumed sleeping together. He admits that his wife paid all of their expenses including the accommodation, internet service and the like from 2007 to 2011. When pressed on cross-examination as to when he first put a lock on the interior door of his room in the condo, Mr. Cammaroto was vague and evasive. He could not recall either the exact date or the exact reason except to say generally that he did not trust Mrs. Cammaroto’s son and it was to safeguard his belongings and his privacy. He also conceded that it was “to protect our marriage” because of “the possible misinterpretation” of documents which he kept in the room. He did ultimately concede that his need for privacy protection was in relation to emails and other information on his computer and that he was preparing for his wife’s initiation of a divorce when he put the lock on the door.
[22] Mr. Cammaroto admits that by the time he received the letter from his wife’s lawyer dated April 28, 2010, he had already been exploring the possibility of other relationships on a website called match.com. He described that as his “contingency plan”.
[23] Mr. Cammaroto admitted that as early as 2008 he was aware of the “rule of 65” in the spousal support advisory guidelines, referencing the principle that if a dependent spouse’s age plus years of marriage equals or exceeds 65 then recommended spousal support should be for an “indefinite” duration.
[24] It is clear from all the evidence that Mr. Cammaroto was determined to delay the inevitable separation as long as possible to maximize his entitlement to support and not because there was any realistic hope, even in his own mind, that a true marital relationship would ever resume.
[25] Mr. Cammaroto had no credible explanation for why he only gave his wife page one of the solicitor’s letter that he obtained from Mr. Kilpatrick in May 2008 and even during the trial never produced page two of that letter. He simply says he didn’t give her page two because he didn’t want to upset her or threaten her.
[26] In preparation for the trial, the parties have spent considerable time and money putting together documentation for the two dates, May 27 2008 and April 28 2010. Accordingly, they have asked the court to choose one date or the other rather than making a finding of fact that the marriage broke down at some other date which would necessitate a whole new round of discovery, another pension valuation and production of additional documents.
[27] It is clear to me on all of the evidence that this marriage broke down with no reasonable prospect of a reconciliation even before May 2008 and the draft letter that Mr. Cammaroto obtained from Mr. Kilpatrick at that time.
[28] By 2005, they ceased to have a sexual or otherwise intimate relationship. Communication between them was largely by notes to one another. They had no social life to speak of. Mr. Cammaroto had no friends and as a couple they had no mutual friends. Moreover, he objected to and interfered with Mrs. Cammaroto’s association with her own friends and even with her two sons. They had a joint bank account but only Mrs. Cammaroto was putting money into this account after 2006. Mrs. Cammaroto’s description of their relationship is corroborated in some respects by Doctor Mai’s notes and the records of the police interventions.
[29] For the purposes of calculating equalization of net family property, the valuation date is fixed at May 27, 2008.
Equalization of Net Family Property
[30] Before this trial Mr. Cammaroto had never produced copies of his account statements to prove how much he had in the way of savings or investments coming into the marriage. He finally did that at trial. I am satisfied that his U.S. savings and investments amounted to a little over $200,000 in Canadian dollars at the date of marriage. Counsel for Mrs. Cammaroto now concedes, as a result, that his net family property is zero, while expressing real suspicion that he may have some money secretly stashed away.
[31] The calculation of an equalization payment is simply half of Mrs. Cammaroto’s net family property and most of the items have been agreed upon. The only exceptions are the vehicle and household contents that the parties had on the day of separation and the value to be ascribed to Mrs. Cammaroto’s pension.
Vehicle and Contents at Separation
[32] I accept Mrs. Cammaroto’s evidence that she got very little of the household contents and almost all the contents of the matrimonial home remained with her husband. Neither party has produced any reliable evidence as to the value of the household contents.
[33] Mrs. Cammaroto owned a vehicle on the valuation date which she traded in on another vehicle in 2010, getting $1000 for the value of the trade-in. The value of the trade-in was reduced significantly because Mr. Cammaroto had an accident with the vehicle that was uninsured. Mr. Cammaroto also continued to use the vehicle between 2008 and the time it was traded on the new vehicle, in the same manner that he had used it for years before 2008.
[34] The value of Mrs. Cammaroto’s vehicle in May of 2008 is quite obviously more than the $1000 she got for its trade-in value in 2010. Mr. Cammaroto says it was worth $6000. There is no independent evidence of what it was worth in 2008 but I am not concerned about that in this particular case because a) Mr. Cammaroto had the continued use of the vehicle between 2008 and 2010 and treated it as his own even though the registered ownership was in his wife’s name; b) Mr. Cammaroto is directly responsible for a significant reduction in the value of the vehicle by virtue of the accident; and c) Mr. Cammaroto maintained significantly more in the way of household contents, furniture and furnishings than Mrs. Cammaroto.
[35] I find as a fact that the parties agreed to divide the vehicle and contents in specie and that those assets should be excluded from the net family property calculation. Alternatively, I would have given Mrs. Cammaroto a credit against the equalization payment she owes for the reduced value of her vehicle attributable to Mr. Cammaroto’s motor vehicle accident with that vehicle.
Value of Mrs. Cammaroto’s Pension
[36] The pension plan administrator for Mrs. Cammaroto’s Healthcare of Ontario Pension Plan (HOOP) prepared a Statement of Family Law Value using the prescribed method for that purpose. Mrs. Cammaroto also had her pension valued by Dilkes, Jeffrey and Associates, a well-known and highly respected local actuarial firm.
[37] There is nothing controversial about most of the assumptions made by each – terms of the plan, credited service, average annualized earnings and life expectancy. It is not surprising therefore that the values from the two valuations are quite consistent:
HOOP
Dilkes, Jeffrey
Normal retirement (age 65)
$69,330
$64,039
Earliest unreduced pension (age 60)
$96,000
$92,750
[38] The prescribed Family Law valuation method engages a formula that also includes a third value: the “greatest value”. It then gives “weighting” to each of the three values (“normal retirement”, “earliest unreduced pension” and “greatest value”) based on how many years the person would have to work between the date of separation and eligibility for an unreduced pension. In this case, that method would place a value of $86,119 on Mrs. Cammaroto’s pension. It is significant that this prescribed method does not take into account any evidence of the personal circumstances of the particular pension holder.
[39] To properly determine the value of Mrs. Cammarotto’s pension it is necessary to make a finding as to when she is most likely to retire. This is a question of fact. See Best v. Best. In making this determination, post-separation events ought not to be taken into account. Hindsight ought to be excluded. In theory the court is trying to determine Mrs. Cammaroto’s intentions and likely retirement date at the date of separation.
[40] Mrs. Cammarotto testified that she will not retire until after her “normal retirement date” at age 65, much less as early as age 60. She anticipates working into her 70’s. She explained why:
She was a stay-at-home mother and homemaker for more than two decades and only started her career in her mid-40’s. She was 46 years old when she joined HOOP.
Because the earliest date an unreduced HOOP pension may be taken is a combination of age plus years of service, she could qualify for an unreduced pension at October 31, 2015, the month she turns 60. However, she needs to work longer.
At the date of separation, she only had 6.34 years of credited service, and her average annual salary was $59,873. As a consequence, her monthly pension at age 60 might be “unreduced”, but it would be quite modest. The amount payable is a reflection of years of credited service and average annual earnings, and she needs to bolster both to achieve a pension she can live on.
Continuing her employment to age 65 would substantially increase her ability to meet her living expenses. Based on her retirement at age 60 she would receive only $1302.45 monthly. She has no savings, only debts. She recognizes the need to increase her credited service and average annualized income as much as she can to increase her pension income as much as possible.
Her earnings now, at age 59, are in the range of $90,000. Not only does she have an opportunity to boost her average annualized income (and hence her subsequent monthly pension), she has an opportunity to “get ahead” between age 60 to 65 with that level of employment income – whether or not she is required to pay spousal support.
[41] I am mindful of the fact that it is in Mrs. Cammaroto’s interests to plump for a delayed retirement date assumption. However, I do not believe her evidence is tailored to justify a lower pension value. Her reasons are financially prudent and reasonable. Moreover they do not reflect subsequent events or hindsight.
[42] In my view, there is a reasonable prospect Mrs. Cammaroto will work past age 65 so I have no hesitation in concluding her pension ought to be valued as of “normal” retirement date (age 65) as she contends.
[43] Based on the (slightly higher) HOOP valuation, the present value of the pension, without any adjustment for tax, is fixed at $69,330. The parties agree a notional reduction of 20% is appropriate to reflect the tax payable on the pension benefits to be received.
[44] The net value of the pension is $55,464.
Equalization of Net Family Property
[45] The other items in Mrs. Cammaroto’s NFP are not controversial, so the calculation is as follows:
½ proceeds of sale of matrimonial home $112,000
vehicle and household contents N.A.
BMO a/c’s ($266.15 + $272.88) 539
Pension (net of tax) 55,464
$168,003 (A)
Mortgage on matrimonial home (when sold) $ 59,937
MBNA credit card 6,941
R/E commission and legal fees on sale of
Matrimonial home 7,134
$ 74,012 (B)
Vehicle at date of marriage $ 4,000
Student loans at date of marriage (17,675)
(13,675) (C)
Net family property : (A) – (B) – (C) $107,666
Equalization payment $ 53,833
[46] Mrs. Cammaroto claims a credit against the equalization payment on account of mortgage principle that she paid off between the date of separation in 2008 and the date the matrimonial home was sold in 2011. She also claims credit for an “overpayment of spousal support”. I will return to these claims after determining the spousal support claim.
Spousal Support
[47] The parties were in their mid- to-late-40`s when they married. Mrs. Cammaroto had just graduated from a three-year nursing program, before which she had been a stay-at-home-mother and homemaker for more than 20 years. She had two independent adult children from her previous marriage. Mr. Cammaroto had been employed at various jobs in New York City after obtaining a degree from Dayton University. For the most part, his employment was in the retail travel industry. Both parties lived on modest incomes in rental accommodation before they married. Mr. Cammaroto’s income for 1999 according to his tax return was $4,466 from employment and $11,638 in unemployment insurance benefits. Mrs. Cammaroto was willing to move to New York to begin her nursing career but instead Mr. Cammaroto decided to move to Canada. He testified he fully expected to have no difficulty securing employment in the London area. The mutual expectation was that each spouse would work outside the home.
[48] Mr. Cammaroto had accumulated substantial savings and investments before marriage. Mrs. Cammaroto knew he had those savings and investments but never knew the extent of them until Mr. Cammaroto finally produced his Schwab statements a few short months ago, literally years after repeated requests for their production. At the date of marriage his savings and investments in the United States amounted to a little more than $200,000 CAD.
[49] About $47,000 from the Schwab funds went into the purchase of the matrimonial home. By about 2005 or 2006 the rest had either disappeared because of market losses or had been dissipated on day-to-day living expenses, both his personal expenses and contributions to the mutual expenses of the parties. The simple reason for this was that Mr. Cammaroto was essentially unemployed throughout the entirety of the marriage. He had sporadic and short-term jobs of no real consequence. The bottom line with respect to the Schwab accounts is that Mr. Cammaroto ran out of money by 2004 or 2005. By October of 2005, the Bank of Montreal records confirm that the only one putting money into the joint household account was Mrs. Cammaroto, about $1000 a week.
[50] Mr. Cammaroto agreed on cross-examination that all of his money from the Schwab account was gone by 2005 and that after that the only money of any consequence coming into the household account came from his wife. Mr. Cammaroto apparently juggled credit cards to generate money for his personal expenses and by the date of separation he had at least nine credit cards with unknown outstanding balances, a fact which was quite a surprise to Mrs. Cammaroto when she saw his first financial statement in this proceeding.
[51] Exhibit 29 records Mr. Cammaroto’s attempts to find employment. It illustrates a wide ranging attempt at looking into potential jobs, even low level employment such as flyer deliveries, gas bar employment and entry level sales positions. It records a range of dozens of small local employers as well as large chains such as Walmart, Staples, Rogers, Canadian Tie, Home Depot, the LCBO, several hotel chains, Zellers and Leons.
[52] The most impressive aspect of Mr. Cammaroto’s attempts to find employment are the personalized and well-written cover letters that he sent with resumes or job applications. Superficially, the documentation of Mr. Cammaroto’s employment search over the years 2000 – 2006 is impressive. However, on closer examination it is apparent that Mr. Cammaroto was “going through the motions”, documenting many contacts from ads for jobs that he must have known he could not do or would not accept even if he could get a job interview. Some of the content of Exhibit 29 is clearly an attempt to “pad” his efforts to find employment. For example, it is rather silly to include employment as a flight attendant, a short-order cook, a store manager, etcetera. The actual number of job interviews he got over the years was few.
[53] In 2001, Mr. Cammaroto applied for 17 jobs in total, never more than three in any given month. He agreed on cross-examination that it was not a “diligent” job search that year. In 2002, he made one job application and in 2003, 31. He admitted on cross-examination that many of the “applications” were for jobs he could not do anyway.
[54] In 2007 the parties discussed the possibility of Mr. Cammaroto attending the two-year law clerk program at Fanshawe College. Mr. Cammaroto had been unsuccessful in attaining any significant employment since coming to Canada and this seemed to be a viable alternative, particularly with his background in a paralegal course in New York City in 1999. He was actually admitted to the Fanshawe College program and together Mr. and Mrs. Cammaroto arranged a $20,000 line of credit to finance his studies. Mr. Cammaroto had savings and investments that he could have used to finance these studies but Mrs. Cammaroto did not object to borrowing money in their joint names to support her husband’s effort to become employable. Mr. Cammaroto unilaterally decided not to pursue the Fanshawe College course. A trial he could offer no convincing reason for his change of heart.
[55] It is also hard to escape the inference that Mr. Cammaroto deliberately sabotaged the only successes he had.
[56] He obtained a job in the travel industry in 2003 but quit the job after taking the initiative with U.S. authorities to check if he could be “in trouble” as a U.S. citizen selling trips to Cuba. He blew the whistle on himself. Then, when told it was not a problem to work for a travel agency selling trips to Cuba so long as he didn’t do so personally, he quit the job anyway.
[57] He was hired as a security guard in December 2005 or January 2006 but quit that job before his first shift to take another travel agency job that lasted only a few weeks.
[58] In April 2006 he was hired at Stock Transportation to drive autistic children in a van but quit during the training session because the children were “wild and noisy” and he was afraid he would crash the vehicle.
[59] There are other examples of how he thwarted actual employment opportunities himself or wasted his time on obviously fruitless pursuits. It is hard to know whether he was genuinely interested in working or just kidding himself. He turned looking for a job and the documentation of his efforts into a job itself. By 2006 he had given up any real effort. Perhaps even before that.
[60] At trial Mr. Cammaroto led some evidence of his health problems. There is no question he has quite a number of health issues, most significantly mental health issues. It is difficult to reconcile his efforts to obtain employment with his claim he was medically disabled.
[61] Though I do not doubt his concerns over money and financial security have exacerbated his depression, his mental health issues clearly predate the marriage. He was on medication for anxiety decades before he even met Mrs. Cammaroto.
[62] Mr. Cammaroto has no claim for compensatory support. At the same time he is clearly unemployable at the age of 64, having been out of the work force, essentially, for 15 years. I do not impute any income to him. I would not do so even if his health was better. He needs financial support and Mrs. Cammaroto has some ability to pay out of her income of approximately $90,000 as a nurse.
[63] However, need and ability to pay are not necessarily the foundation for indefinite spousal support. This is a case for time limited support.
[64] Mr. Cammaroto’s financial destiny was sealed by his own decisions over the years and by circumstances that have nothing to do with the marriage. Mrs. Cammaroto’s financial responsibility to him rests solely on her single decision to marry him. In my view, she has already fulfilled her financial obligation to him and more.
[65] The parties married in June 2000. The valuation date is April 2008. They continued to reside under the same roof out of financial necessity until the matrimonial home was sold in July 2011. From 2006 to 2011, Mrs. Cammaroto paid virtually all their mutual expenses. It is impossible to quantify the financial cost to her but it is no doubt tens of thousands of dollars. In July 2011, Mrs. Cammaroto was ordered to pay interim spousal support of $1750 per month. She claims the amount ought to be retroactively reduced and that she should be given credit against the equalization payment she owes.
[66] The Spousal Support Advisory Guidelines (SSAG’s) suggest a duration for support of 4 – 8 years based on the length of the marriage, the ages of the parties and the fact they have no dependent children. If the valuation date of April 2008 is used as a starting point, support would run until March 2012 at the short end of the suggested range and March 2016 at the longer end.
[67] A mid-point is fair in the circumstances of this case. Spousal support will terminate as of March 2014.
[68] As noted earlier in these reasons, the Cammaroto marriage ended before the 2008 valuation date. They were essentially living separately under the same roof from early 2006. If those additional two years are taken into account, years in which only Ms. Cammaroto was putting money into the joint account and paying all their expenses, a time limit ending support as of March 2014 is quite generous to Mr. Cammaroto. This duration of support, before and after the interim order of July 2011, is long enough in the circumstances of this case to reasonably and fairly reflect the factors and objectives spelled out in the Divorce Act.
[69] Duration and quantum are inseparable considerations. The SSAG’s reflect the interplay between the two. In a case such as this, where no income can realistically be imputed to the recipient and the high end of the SSAG range only achieves a standard of living for the recipient below the standard of living enjoyed during the marriage, the high end of the range is appropriate.
[70] Mrs. Cammaroto has certainly discharged her responsibility to support her estranged husband predating the interim spousal support order of July 2011, whether that obligation began in 2006 or 2008 or any date in between. Until the matrimonial home was sold in July 2011 and temporary support was ordered, she paid for everything. Though there was some evidence of what she paid over those antecedent years I do not intend to analyze it to ascertain whether she paid “too much”. It is sufficient to observe that she paid what she did on a voluntary basis and that all of Mr. Cammaroto’s needs were met, so neither spouse ought to be able to rewrite that history as a forensic accounting exercise.
[71] On the other hand, it is not unusual for an interim support order to be revisited at trial, usually for the purpose of “topping up” the amount payable. There is no principled reason refuse an adjustment based on a determination that, in hindsight, the interim award was too generous.
[72] In this case Mr. Cammaroto began to receive his Social Security in 2013 or 2014. In 2014 he received more than $14,000 CAD. He failed to disclose this change in his financial circumstances at the time. This fact alone justifies revisiting the interim spousal support order.
[73] Moreover it has taken almost five years for this case to be heard, and almost four from the date of the interim order. Much of that delay is systemic in nature, but it is also clear from the endorsements along the way that Mr. Cammaroto is responsible for much of that delay.
[74] It is also apparent that the interim spousal support order has required Mrs. Cammaroto to pay more than the “high” figure suggested by the SSAG’s.
[75] It is reasonable in these circumstances to give Mrs. Cammaroto credit for paying more than she should have paid and to use the SSAG’s to calculate that overpayment, a calculation that will also take into account the termination of her spousal support obligation as of March 2014 and the payments she made after that date.
[76] The calculation of the “overpayment” under the interim order of July 2011 is as follows:
Year
Applicant’s Income
Respondent’s Income
SSAG “high” Per month
Total Payable
2011
$91,976
nil
$1226
$7,356(6 mos.)
2012
$89,312
nil
$1191
$14,292
2013
$88,742
$1183
$14,196
2014
$88,742
$14,144
$ 995
$2,985(3mos.)
$38,829
Amount paid (July 2011 to March 2015; 45 mo. $78,750
At $1750/month)
Over payment $39,921
[77] In addition to a credit for the overpayment of spousal support after July 2011, Ms. Cammaroto should be credited for the reduction in the principle owing on the mortgage attributable to her payments between the valuation date and the date the home was sold. The mortgage was reduced from $134,523.22 to $119,873.05.
Order Granted
The net proceeds of sale of the matrimonial home will be divided equally.
The applicant shall pay to the respondent an equalization payment of $53,833 less the following credits which the respondent shall pay to the applicant:
a) $2500 paid to him as an advance on his entitlement to an equalization payment;
b) $7325 representing half the principle reduction on the mortgage
c) $35,617 representing an overpayment to him of spousal support;
d) outstanding costs order against him of $750 (April 27, 2011); and $1888.60 (April 27, 2014)
Spousal support is terminated effective March 31, 2014 and the respondent’s claim for further spousal support is dismissed.
If the parties cannot agree on costs, brief written submissions may be made within the next 30 days.
I will remain seized of the matter to address any ancillary order that may be required to effect the payment out of court of the monies paid in to the credit of this application.
Justice D. R. Aston
Released: June 29, 2015
CITATION: Cammaroto v. Cammaroto, 2015 ONSC 3968
COURT FILE NO.: 1223-2010
DATE: 2015/06/29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Karen Michele Cammaroto
Applicant
- and -
Daniel Carl Cammaroto
Respondent
REASONS FOR JUDGMENT
Justice D. R. Aston
Released: June 29, 2015