COURT FILE NO.: FS-14-0139-0000
DATE: 2015-07-13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SUSAN WHITEHURST
Martha Petryshyn, for the Applicant
Applicant
- and -
JOHN WHITEHURST
Mary Ann Currie, for the Respondent
Respondent
HEARD: June 25, 2015,
at Thunder Bay, Ontario
Mr. Justice W.D. Newton
Decision on Motion
Background
[1] In this motion, Susan Whitehurst seeks temporary relief arising from the breakdown of her marriage with John Whitehurst. During the course of argument I ordered, by endorsement, certain relief. Subsequent to argument, the parties filed a consent relating to other relief. The remaining issue to be determined is entitlement to, and quantum, if any, of spousal support payable by Mr. Whitehurst to Mrs. Whitehurst.
[2] For reasons that follow I conclude that Mrs. Whitehurst is entitled to spousal support on a temporary basis from Mr. Whitehurst in the amount of $342 monthly retroactive to April 30, 2015.
Facts
[3] Mr. and Mrs. Whitehurst were married on May 13, 1999. They separated on December 31, 2013, after 14 1/2 years of marriage. This is a second marriage for both. There are no children of this marriage but each have children from their prior marriage.
[4] Mrs. Whitehurst is 57. She was Director of Nursing at Pinewood Court until her retirement in July 2014. Prior to retirement she earned approximately $94,000 annually. Since retirement she has pension income of $44,571 annually.
[5] Mr. Whitehurst is a police officer with the Thunder Bay Police Services. Currently he is on long-term disability. His long-term disability is $50,557 annually. These benefits are not taxable. The "grossed up" equivalent is $64,130.
[6] With respect to her retirement, Mrs. Whitehurst deposed that she and Mr. Whitehurst discussed her retirement in June 2013, and that both agreed that she would retire as of July 1, 2014. Mr. Whitehurst does not deny that assertion and deposed that from December 2013, Mrs. Whitehurst knew that the future was uncertain and that she should not retire. It is not clear from the material when Mrs. Whitehurst actually gave notice to her employer. Her replacement was hired by April 2014. Mrs. Whitehurst deposed that she believed that there was still a possibility of reconciliation until April 2014.
Positions of the Parties
[7] Mr. Whitehurst argues that each was self-supporting during marriage and that there is no entitlement to support. Further, he argues that Mrs. Whitehurst must bear the financial consequences of her decision to retire in uncertain times.
[8] Mrs. Whitehurst argues that she is entitled to support and that she requires support at this time to meet necessary living expenses.
[9] Counsel did not provide any authority on the issue of entitlement other than s. 15.2 of the Divorce Act R.S.C., 1985, c.3.
Analysis
[10] Even if the parties were self-supporting during their working life as argued by Mr. Whitehurst, decisions made by them during marriage regarding retirement and funding of retirement may become "economic advantages or disadvantages to the spouses arising from the marriage or its breakdown" in accordance with s. 15.2(6)(a) of the Act. I conclude that a decision regarding a plan of retirement for one or both spouses is sufficient, in this case, to trigger entitlement to spousal support.
[11] The more difficult issue to resolve is the competing evidence and argument over the timing of retirement. I agree that Mrs. Whitehurst could not simply retire and expect she should not have to continue to work as if the marriage breakdown did not occur. I find as a fact that she would have had to give notice at her employment at the time very close to the marriage breakdown. One must not judge decisions made during that tumultuous time with the clarity of hindsight. She acknowledges that she must secure other employment. For these reasons, on a temporary basis I conclude that she is entitled to spousal support from Mr. Whitehurst payable at the rate of $342 per month retroactive to April 30, 2015. This is based on her income of $44,571 and his nontaxable income of $50,557. In recognition of her obligation to be self-supporting I fix the support payable at the low end of the Spousal Support Advisory Guidelines.
Order
[12] It is ordered that:
The Respondent shall pay to the Applicant temporary spousal support retroactive to April 30 the 2015 in the amount of $342 per month payable on the first day of each month based on the respondent's nontaxable income of $50,557 and the applicant's income of $44,571.
The Respondent is to provide forthwith irrevocable direction authorizing insurer to add Applicant retroactive to date of insurance to Policy #60-CC-M337-7.
In the interim, pending that action, the Respondent is to hold any monies received in the future pursuant to claims under said policy in trust by depositing said funds with Counsel for the Respondent.
It is understood that Applicant may need to return to Court for further Orders or directions should the policy change not occur.
On an interim basis, the Respondent shall maintain the Applicant on any extended healthcare coverage available to her through his employment or as otherwise may be available to him.
The Applicant shall be entitled to continue to submit claims to the Respondent’s insurer for extended health coverage, obtain claims forms, and be reimbursed directly by the insurer.
In the event the insurer does not comply with the provisions in paragraph 2, the Respondent shall provide to the Applicant claim forms, and shall submit to the insurer any claim forms provided by the Applicant. The Respondent shall forward reimbursement of any claims paid for the Applicant to her immediately upon receipt of the funds.
On an interim basis, if permitted by the plans, each party shall designate the other as the beneficiary their employment pensions, related benefit plans, R.R.S.P.s, LIRA accounts, and other such plans. The parties shall not change such designations except on consent of both parties or further Order of the Court.
On an interim basis, each party shall designate the other as the beneficiary of $80,000.00 of life insurance currently available and shall maintain the said designation until further agreement or Court Order.
Each party shall provide to the other their income tax returns with all schedules and attachments and Notice of Assessment when available, for 2014 and additional years as may be required.
The Respondent shall release to the Applicant or her designate a tent, if located, the pink floating chair, and the Applicant’s aluminum snowshoes.
If necessary, the parties can make submissions on costs in writing limited to three pages each within 21 days of the release of this decision. If costs submissions are not received within 21 days then costs will be deemed to be settled.
“original signed by”___________
The Hon. Mr. Justice W.D. Newton
Released: July 13, 2015
COURT FILE NO.: FS-14-0139-0000
DATE: 2015-07-13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SUSAN WHITEHURST
Applicant
- and –
JOHN WHITEHURST
Respondent
REASONS
Newton J.
Released: July 13, 2015
/cs