COURT FILE NO.: FD1703-13
DATE: 2015/08/12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Toni Anne Silver
William Doran, for the respondent
Respondent
- and -
Daniel Arthur Silver
William Clayton, for the applicant
Applicant
HEARD: June 12, 2015
ASTON J.:
[1] The parties began living together in 1992, were married July 29, 1995 and separated November 1, 2013. They have three children, Rachel (July 22, 1998), Morgan (November 26, 2000) and Brandon (May 14, 2004).
[2] The children have resided with their mother since the separation.
[3] Though Ms. Silver worked as a hairdresser in the first six years the parties were together. She was essentially a full-time mother and homemaker from the time Rachel was born in 1998 until the parties separated; a period of 15 years or more during which her main responsibility was to take care of the children and the household.
[4] Throughout most of the marriage, Mr. Silver was steadily employed in construction as a labourer or bricklayer leaving for work early in the morning and working long days. Immediately before the separation, Mr. Silver had been residing and working in Fort McMurray, Alberta. From the time he left for Alberta in January 2011 until the separation in November 2013, he deposited his pay cheque (approximately $7200 per month) into a joint account. The parties each had access to the joint account for their bills and expenses. After November 2013 he stopped those deposits but voluntary support was paid by Mr. Silver from the separation date until a temporary order in this proceeding, made on consent July 8, 2014. More on that to follow. The order requires Mr. Silver to pay $2249 per month for the support of the three children, a table amount reflecting his income at that time, and an additional $651, for spousal support, a total of $2900 per month. He has faithfully complied with that order..
[5] Mr. Silver claims “joint custody” but does not seek any change in the residential arrangements that have been in place since January 2011. He is content to arrange his time with the children directly with them given their ages but would like to be more involved in their lives. He wishes to have his status as a responsible parent recognized, not diminished. Though Mr. Silver admits that he has not been actively engaged in raising the children since he moved out west, he asserts that he has been a responsible parent when it comes to financial support.
[6] Property issues have been settled. That settlement includes Mr. Silver transferring his interest in the matrimonial home to Ms. Silver.
[7] The evidence supports the claim for dissolution of the marriage. Apart from a disagreement over “joint custody” versus “sole custody”. The contested issues are child and spousal support, including ancillary issues of income determination and a retroactive increase in the amount payable. The order will include a divorce and the support claims are determined under the Divorce Act.
[8] At the time of trial the children were 11, 14 ½, and almost 17 years of age but Ms. Silver asserts that their needs still interfere with her ability to become self-supporting. Ms. Silver testified that Rachel suffers from depression and Brandon has difficulty at school due to ADHD. There is no evidence to corroborate her testimony. Since Mr. Silver moved out west in January 2011 he has only seen the children sporadically and, except financially, he has not assisted Ms. Silver in any significant way with parenting responsibilities. Rachel will be in her last year of high school starting this September. She may not continue full-time studies a year from now, but for the present she is a dependent eligible for child support. Ms. Silver has had significant assistance from her parents particularly with respect to transportation of the children. They are ready, willing and able to continue that assistance.
[9] Ms. Silver graduated from high school and began employment as a hairdresser at the age of 19, a job that she continued for about 10 years until Rachel was born. She has not looked into resuming employment as a hairdresser. She believes she would need to re-train for that kind of employment. More importantly, she has been able to earn better money at her present job, which she says she enjoys. Her current part-time employment is at Leisure World, a long-term care facility, as a housekeeper. Her hours vary from week to week. In 2013 she earned $10,427 and in 2014 $11,293. Her employment income in 2015 will probably be reduced because of a lengthy period of unemployment due to a badly broken wrist. She was off work at the time of trial but hopes to be back to work by September. She has an outstanding claim for employment insurance which had not be resolved at the date of trial.
[10] Though Ms. Silver has applied for alternative employment at Walmart, Tim Hortons and Fanshawe College, she has been unsuccessful. She did admit during cross-examination that she has not diligently sought alternative full-time employment or supplementary part-time employment because she hopes to get on full-time with her present employer.
[11] Ms. Silver is a member of a union. Based on her seniority, she is next in line for a full-time job with her present employer. There is little turnover however, and it is far from certain when that full-time employment might be available. For the time being it is reasonable for Ms. Silver to continue part-time employment and maintain her seniority in the hope of full-time employment. She would receive a salary of almost $19/hour for a 40 hour week, plus benefits, a very substantial improvement on any other apparent prospects that she now has. That said, she needs to have a backup plan.
[12] Ms. Silver did testify on cross-examination that her alternative plan to full-time employment at Leisure World is to go back to school to study medical terminology and OHIP billing in the hope that it would lead to full-time employment in the health care field, specifically in a doctor’s office or clinic. Ms. Silver has already signed up for online courses through Fanshawe College, starting in August and through to October or November this year, in ‘medical terminology’. This will open the door to other courses, each taking three or four months, so that she would be eligible or qualified to work in a doctor’s office or medical clinic by June 2016. She can continue her present part-time employment with Leisure World while taking these online courses.
[13] Mr. Silver drives a heavy hauler in the oil fields in Alberta. He lives in Fort McMurray in a mobile home that he shares with a buddy. He is transported by bus 50kms each way to and from work. He works 12-hour shifts but with the transportation to and from the job site he works 15 hours door to door, longer when overtime is available. Mr. Silver puts in for all available overtime on a sign-up list. When overtime is available he works the extra time. He then goes back to the bottom of the list. In the latter part of 2014 there was less overtime available to him, and in 2015 it has diminished further.
[14] Mr. Silver currently earns $40.65/hour with a 10% bonus for overtime hours. Though he makes a good income, Mr. Silver has little discretionary spending available to him because of the high cost of living in Fort McMurray and the support payments he has been making under the interim order.
[15] Mr. Silver testified that the oil industry, and in particular Syncrude, has been going through difficult times. He testified that Syncrude has announced its need to cut costs by 100 million dollars by reducing overtime and new hiring. He estimates his 2015 income will not exceed $100,000.
[16] After completing Grade 12, Mr. Silver worked at various construction and labour jobs until eventually becoming a bricklayer in 2010. In 2010 his main employer went bankrupt. He was never able to collect approximately $30,000 owing to him by that employer. This was a financial disaster for the family. Ms. Silver was aware of the situation and supported Mr. Silver in a decision to temporarily take on employment in the oil fields, which he did. After two months of training as a heavy equipment operator, he obtained lucrative employment in 2011. In order to maximize the financial support he was contributing to the family back home, he lived with his sister and did not pay rent or incur any expenses for a vehicle. To this day he does not have his own vehicle.
[17] In November 2013, after several attempts to encourage Ms. Silver to join him in Alberta with their children, Mr. Silver realized that the situation was unlikely to change. Mr. Silver acknowledges that the children wanted him to come home. He had applied for jobs back in Ontario through the union hall but found that there were as many as 400 people on a waiting list for brick laying jobs. He decided the only option that would enable him to financially support the family was to continue his employment out west.
[18] Mr. Silver estimates that he will “probably” earn between $90,000 and $100,000 this year. He does not expect the second half of 2015 to be significantly different from the first five months when he earned $46,661 according to his paystub. His overtime so far this year only amounts to approximately $2,500. This is less than his income last year of $128,379 when significant overtime was still available to him, particularly earlier on in that calendar year. Mr. Silver’s income for 2013 was $121,561.
[19] Ms. Silver testified that she is not expecting spousal support for her lifetime but is claiming support based on her current need and her husband’s ability to help her financially.
[20] Mr. Silver testified that he is willing to pay spousal support but is concerned about the duration of his obligation, and from his perspective his wife’s apparent lack of effort in doing what she can to help herself financially.
[21] Mr. Silver testified that Ms. Silver had an $18/hour job at Chelsea Park as a dietary aid before the separation in November 2013, a full-time job which she quit. She did not refute that evidence.
[22] Ms. Silver has a lackluster record of trying to improve her own financial situation since the separation. She has not diligently made an attempt to contribute to her own self-sufficiency. On the other hand, income cannot be imputed to Ms. Silver absent actual evidence of what she is capable of earning. At the present time, she is not earning very much and the evidence of what she will be earning in the next six to twelve months does not rise above the level of hopeful speculation. The order for support, in a case like this, needs to encourage an actual and realistic plan by the dependent spouse and needs to offer some hope to a payor who is maintaining a spartan existence and lifestyle and working long hours in order to support his family.
[23] The family’s standard of living before Mr. Silver moved out west was modest, based on his income in Ontario. Ms. Silver’s financial statement clearly is not much more than a “wish list” with unrealistic spending aspirations. Ms. Silver’s proposed budget reflects a level of spending that is no doubt considerably higher than the level of spending this family was able to maintain before Mr. Silver went out west. She is not prepared to join him in the sacrifices he has made, and continues to make, but wishes to have the benefit of his increased income.
[24] Section 15.2(6) of the Divorce Act sets out the statutory objectives of a spousal support order, under the umbrella provision in s. 15.2(1) that the order should reflect what the court “thinks reasonable” in the particular circumstances of the case.
[25] In this case, Ms. Silver’s assumption of responsibility for the day-to-day parenting of the children has not caused her any proven long term economic disadvantage. There is no evidence the 10-year career she had as a hairdresser before Rachel was born amounts to a lost opportunity today. I am not prepared to assume her years as a fulltime mother and homemaker have necessarily interfered with her ability to eventually achieve the level of employment income she might otherwise have achieved. She does have a temporary economic disadvantage. It will take time, but her economic disadvantage is not permanent. On the other hand, her assumption of those parenting responsibilities after January 2011 allowed Mr. Silver the economic advantage of securing his present level of employment out west. It is reasonable to recognize that economic advantage and to share it through an order for spousal support without now placing a fixed time limit on the duration of that support.
[26] Ms. Silver emphasized her view that present parenting responsibilities continue to have a negative financial consequence, interfering with her ability to work fulltime. That may have been true in the past, but given the ages of the children and the available assistance of the maternal grandparents, I find that the factor referred to in s. 15.2(6)(b) of the Divorce Act deserves only modest weight now and in years to follow.
[27] With respect to “economic hardship” it is quite obvious that both spouses will feel the constraints of their present combined income. They will only have room for greater discretionary spending when Ms. Silver is working fulltime.
[28] This leads to the last objective spelled out in the Act; that a spousal support order should “in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable time”.
[29] This is the most salient consideration in determining what is fair and reasonable for both Mr. and Mrs. Silver on the facts and circumstances of this case.
[30] In my view, the factors and objectives set out in the Act are best met by an order which: 1) recognizes that Ms. Silver may need as much as a year to obtain fulltime employment; 2) fixes the quantum of spousal support at the lower end of the appropriate range to encourage her to make a more concerted effort to support herself; 3) anticipates that within a year she will secure fulltime employment either at Leisure World or as a result of her Fanshawe College courses; and, 4) recognizes that even when she does obtain fulltime employment the disparity in incomes of the spouses and the economic advantage for Mr. Silver, arising from his move to Alberta before the separation date, will justify ongoing indefinite spousal support, perhaps closer to the middle of the appropriate range of support.
[31] With this framework in mind, I make the following additional findings and the following order.
[32] In the next 12 months, Mr. Silver will earn approximately $112,000; Ms. Silver about $12,000.
[33] Before she broke her wrist Ms. Silver earned $3182.21 in 14 weeks, an average of $227.23 per week. Since then her hourly rate has increased from $17.59 to $18.54. Projected for 50 weeks at $239.50 for an average week her annual income would be $11,975. Thereafter, Ms. Silver will have an actual or imputed income of $30,000. When she obtains fulltime employment, Ms. Silver would earn more than $37,000 per annum at Leisure World. She would probably start at a lower income in a doctor’s office or clinic. Imputing an income to her of $30,000 annually will provide an incentive to her that is not an unrealistic expectation.
[34] So far as Mr. Silver is concerned, his paystub for the period ending May 30, 2015 shows an income of $46,660.89, including $2561 for overtime. That income will likely be replicated in the remaining seven months of the year and into 2016. The annualized figure is $111,984.
[35] At $112,000 annually, the table amount for the support of the three children is $2079 per month using the Alberta tables. Mr. Silver is to pay that amount on the first of each month commencing August 1, 2015.
[36] There is no evidence to support an additional amount under s. 7 of the Guidelines. In any event, if there were to be additional child support under s. 7 the spousal support would need to be lower.
[37] Using the Spousal Support Advisory Guidelines, the range of spousal support using incomes of $112,000 and $10,975 is: $428 (low), $701 (middle), $998 (high). The range using incomes of $112,000 and $30,000 is: NIL (low), $458 (middle), $928 (high).
[38] In addition to the child support, Mr. Silver will pay to Ms. Silver spousal support of $450 per month commencing August 1, 2015 and on the first of each month thereafter, to and including July 1, 2016. Thereafter the payments will continue on the first of each month in an unreduced amount. The unreduced amount is higher within the SSAG range but gives Ms. Silver an incentive to earn more without fear it will reduce her spousal support.
[39] Mr. Silver does not oppose an order requiring him to maintain his healthcare and dental coverage through his employment for the children so long as it is available to him through his employment. The order will include such a provision. The order will also include a provision that Mr. Silver’s group life insurance through his employment is charged as security for his support obligations. Because this order is under the Divorce Act, there is no automatic provision for annual income disclosure. However, s. 15.1(4) of the Divorce Act allows the court to impose terms and conditions. The order will include a provision that each party is to provide to the other no later than May 31 each year a copy of his or her income tax return and notice of assessment for the prior year.
[40] I agree with Mr. Silver that the appropriate message to send to the children is to preserve his status as a parent by a joint custody order. There is no evidence that the parents have ever had a significant disagreement with respect to the decisions made for the children or that a joint custody order would cause any conflict within the family. Given the ages of the children, Mr. Silver will be able to work out his time with them in the same manner he had done up to now and as time goes by in a more direct manner with the children themselves. Mr. Silver has done nothing to forfeit his legal rights as a parent. In fact, if there is a polar opposite to a “deadbeat dad”, Mr. Silver is the model.
[41] Ms. Silver claims additional support for the period from November 1, 2013 to the trial.
[42] In 2013, Mr. Silver earned $121,561, Ms. Silver $9,489, excluding her RRSP income. Child support for two months using the Alberta tables amounts to $4498 and spousal support at the low end of the SSAG is $1616 for a total payable of $6114.
[43] In 2014, Mr. Silver earned $128,379, Ms. Silver $11,298. Child support using the Alberta tables amounts to $2369 per month and spousal support at the low end of the SSAG range, $862 per month, a total of $3231 per month. The amount payable for 12 months would be $38,772.
[44] For 2015, I have found Mr. Silver’s annualized income to amount to $112,000, Ms. Silver’s annual income $11,975. Child support using the current Alberta tables amounts to $2079 per month and spousal support at the low end of the SSAG range, $428 per month, a total of $2507. For the seven months up to and including July 2015, the total payable is $17,549.
[45] The total payable for the period predating the trial is $62,435.
[46] I accept the husband’s position that the $500 paid in March 2014 ought to be credited to the other payments that he made before the interim order giving him credit for $17,231, in addition to 13 payments of $2900 per month payable under the interim order ($37,700), a total of $54,931.
[47] Mr. Silver’s ordered to pay the difference of $7,504 as additional support.
[48] If counsel are unable to agree on costs within the next 30 days, brief written submissions may be made.
“Justice D. R. Aston”
Justice D. R. Aston
Released: August 12, 2015
COURT FILE NO.: FD1703-13
DATE: 2015/08/12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Toni Anne Silver
Applicant
- and -
Daniel Arthur Silver
Respondent
REASONS FOR JUDGMENT
ASTON, J.
Released: August 12, 2015