CITATION: Pindur v. Pindur, 2015 ONSC 493
COURT FILE NO.: F828/13
DATE: 2015/03/30
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Dana Renee Pindur
Holly Watson, for the applicant
Applicant
- and -
Hughy James Richard Pindur
Scott Merrifield, for the respondent
Respondent
HEARD: January 21, 2015
LEITCH J.
[1] This is an application pursuant to s. 15 of the Divorce Act R.S.C. 1985, c. 3 (2nd Supp.). The only outstanding issues are the quantum and duration of the spousal support to be paid by the respondent to the applicant and the terms of the order relating to the respondent’s pledge of his insurance policy as security for his spousal support obligation.
[2] The applicant requests an order requiring the respondent to irrevocably designate her as a beneficiary of a $50,000 life insurance policy which the respondent now has in place. The respondent proposes a different form of order as discussed below.
Background Facts
[3] The applicant and the respondent are each 38 years of age. They married May 28, 2004 and separated September 27, 2011.
[4] The parties met in 2003 when the applicant was working as a youth pastor. The respondent was a youth leader and assisted the applicant in her work.
[5] When the parties married, the applicant was employed full-time first at a hair salon and then later in retail. She was not able to continue working after December 13, 2006. She began to receive CPP disability benefits in 2007. The reason that she is unable to work is related solely to her health and is unrelated to the marriage.
[6] The parties entered into an interim separation agreement November 6, 2012 pursuant to which the respondent has paid the applicant $650 per month as interim spousal support. In addition, it was agreed that the applicant would be covered under the respondents’ health care benefits provided by his employer.
[7] Pursuant to a consent order of Templeton J. dated October 8, 2014 the respondent’s claim for divorce was severed from the other issues in this case. The parties were divorced pursuant to the order of Marshman J. dated November 17, 2014.
The Respondent’s Financial Circumstances
[8] The respondent had been employed as a graphic designer for 14 years with the same company at a fairly consistent income over the last 5 years. ($61,000 – 2009, $67,000 – 2010, $65,000 – 2011, $65,212 – 2012, $65,208 – 2013.)
[9] As of April 12, 2014 the respondent’s employment was terminated and, as described in a document prepared by his employer filed on consent, his position was transitioned into a company/contractor arrangement. His employer indicated that in 2013 the company “began a restructuring process due to revenue loss”; reduced its full-time salaried employees from 13 to 9; and offered a couple of former employees work on contract. The employer indicated that the respondent’s position going forward would be “busy at some times but slow at other times”.
[10] The respondent testified that for 2014 his income as an independent contractor has remained about the same as prior years and is roughly $65,000.
[11] The respondent testified that as an independent contractor if he does not work he will not be paid. Up to this point in time, when off work for illness, he has been able to make up that time. Similarly if he takes a holiday he will make up that time if he can.
[12] During cross-examination it was suggested that the respondent’s friendship with his former employer resulted in the change in his employment status and the consequent loss of health benefits to the applicant. This suggestion was denied by the respondent who noted that he was “not the only victim” of the restructuring of the business. I cannot find that the restructuring of the respondent’s employer’s business was undertaken to deprive the applicant of her health benefits in order to save expenses for the respondent’s employer.
[13] Since 2009, the respondent has done freelance work for an American company which until this point in time he has not declared as taxable income. He intends to declare this income for tax purposes going forward now that he will be paying tax as an independent contractor. I accept his evidence in that regard. He has deposed in his most recent financial statement that this freelance income will be $4,000 per year in American dollars. In the past it has fluctuated from a low of $2,300 to a high of $7,550 (2009 - $2,302, 2010 - $2,730, 2011 - $5,000, 2012 - $7,550, 2013 - $6,600).
[14] It was put to the respondent on cross-examination that he had intentionally sworn an affidavit that his total income was approximately $64,000 (whereas the correct amount was $69,000) and that he was misrepresenting his income for his benefit just as he had underestimated his taxable income for his benefit. However, I am satisfied that the error on his financial statement was an inadvertent arithmetical error. The respondent accurately disclosed all the details in relation to his 2014 income by attaching to his financial statement his last paystub showing year-to-date earnings; confirmation from his employer of the amount paid to him as an independent contractor; and, documentation to support his estimate for freelance earnings.
[15] The respondent has a new life partner with whom he had a child in December 2014. She is a registered nurse, who is presently on maternity leave. Prior to her maternity leave she earned $60,000 per annum, according to the respondent’s evidence.
[16] The respondent made a consumer proposal in May 2012 under the Bankruptcy and Insolvency Act, pursuant to which he is obliged to pay $650 a month until May 2016 to resolve his debts. His largest debt related to a loan he obtained to satisfy a judgment against him arising from a motor vehicle accident.
The Applicant’s Income
[17] The applicant is in receipt of CPP disability benefits and receives approximately $8,600 a year.
[18] It was admitted by Mr. Merrifield on behalf of the respondent that the applicant is disabled and unable to work; that there is no medical evidence to suggest that she can work in the foreseeable future; and there is no prospect of future employment for the applicant.
[19] The applicant is enrolled with the Trillium Drug Program/Ontario Drug Benefit Program. She has prescription drug coverage under that program with a deductible for the period August 1, 2014 to July 31, 2015 of $461.
[20] The applicant was not impacted by the respondent’s consumer proposal and the debts he incurred.
The Relevant Statutory Provisions
[21] Section 15.2(4) of the Divorce Act R.S.C. 1985, c. 3 (2nd Supp.), provides that in making an order requiring a spouse to secure or pay spousal support, the court shall take into consideration the condition, means, needs and other circumstances of each spouse including:
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
[22] The objectives of a spousal support order are set out in subparagraph 6 as follows:
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
The Relevant Jurisprudence
[23] In the leading decision of Bracklow v. Bracklow, 1999 715 (SCC), 1999, 44 R.F.L. (4th) 1, (S.C.C.), the Supreme Court of Canada addressed the question set out at para. 1: “But what happens when a divorce – through no consequence of sacrifices, but simply through economic hardship – leaves one former spouse self-sufficient and the other, perhaps due to the onset of a debilitating illness, incapable of self-support? Must the healthy spouse continue to support the sick spouse? Or can he or she move on, free of obligation?”
[24] In Bracklow, the Supreme Court of Canada at para. 49 reviewed the three conceptual bases for entitlement to spousal support: 1. compensatory, 2. contractual; and 3. non-compensatory. In Bracklow, it was argued that Mrs. Bracklow’s need determined the minimum amount of a monthly support to which she was entitled. However, the court observed at para. 53 that “need is but one of a number of factors that the judge must consider”. The court went on to note that similarly the length of the marital relationship is also “only one of a number of factors that may be relevant”.
[25] The court concluded at paras. 60 and 61 as follows:
… Mrs. Bracklow was eligible for support based on the length of cohabitation, the hardship marriage breakdown imposed on her, her palpable need, and Mr. Bracklow’s financial ability to pay. While the combined cohabitation and marriage of seven years were not long, neither were they (by today’s standards) very short. Mrs. Bracklow contributed, when possible, as a self-sufficient member of the family, at times shouldering the brunt of the financial obligations. These factors establish that it would be unjust and contrary to the objectives of the statutes for Mrs. Bracklow to be cast aside as ineligible for support, and for Mr. Bracklow to assume none of the state’s burden of care for his wife.
I leave the determination of the quantum of support to the trial judge, who is in a better position to address the facts of this case than our appellate tribunal. My only comment on the issue is to reiterate that all the relevant statutory factors, including the length of the marital relationship and the relative independence of the parties throughout that marital relationship, must be considered, together with the amount of support Mr. Bracklow has already paid to Mrs. Bracklow. I therefore do not exclude the possibility that no further support will be required, i.e., that Mr. Bracklow’s contributions to date have discharged the just and appropriate quantum. Absent settlement between the parties, these issues are for the trial judge to resolve.
[26] The quantum of the child support in Bracklow was fixed by the trial judge at $400 per month for five years. The payor earned $71,000 per year plus benefits and the support recipient received $846 in disability pension.
[27] In Holt v. Ogglesby, 2000 21163 (ON SC), [2000] O.J. No. 4055, a support payor who earned $50,000 per year was ordered to pay to his former spouse, who relied on social assistance because of health problems, support in the amount of $1500 for a period of four years. The parties were not married, but had lived together for seven years. The support payor had provided indirect support prior to trial for three years.
[28] In Kontogiannis v. Langridge, [2009] B. C. J. No. 2257, where the support payor earned $112,000, it was noted that the non-compensatory support at the low range ($1034 per month for a period of 5.5 years) according to the Guidelines was “still inappropriately high given the defendant’s new familial obligations” and the court’s finding that the plaintiff ought to have become self-sufficient by this time. The court, at para. 38, concluded that the case was one where the Guideline amounts would be inappropriate; and the defendant had paid $36,800 to the plaintiff in interim support to date and had more than satisfied his obligation to the plaintiff. The court found that “a support order as high as mandated by the Guidelines would be inappropriate, in light of his increased financial obligations and thus decreased means and in light of this Court’s findings that the plaintiff is capable of satisfying her needs on her own. A more appropriate order is $600 per month, payable on the first day of the month over the next two years from the date of judgment, to provide the plaintiff with some support while she rebuilds her career.”
[29] Haggerty v. Haggerty, 2010 CarswellBC 332, the parties, aged 37, had cohabited for seven years, had no children; the supporting spouse had a new partner and children, the support recipient was unemployable because of a disability; the onset of the disability occurred while the parties were married, but the disability was unrelated to the marriage; and the supporting spouse was obliged to pay support on a non-compensatory basis. The supporting spouse was ordered to pay spousal support for a period of seven years in the amount of $900 per month so that the support recipient would have additional income of $10,800 and a total annual income of $16,800.
[30] In Aujla v. Singh, 2012 ONSC 5217, [2012] O.J. No. 4395, after five years of marriage during which the wife was diagnosed with a disability which rendered her unemployable, the husband who earned $48,000, an amount attributed to him by the trial judge, was ordered to pay $300 per month in spousal support for an indefinite period, subject to variation in the event of a material change in circumstances.
[31] In Aujla, D. K. Gray J. made considerable reference to the spousal support advisory guidelines, which as he noted are advisory in nature and not binding. He also noted the Court of Appeal in Fisher v. Fisher, 2008 ONCA 11, 2008 88 O.R. 3rd 241 stated that the Guidelines “are an important tool that should guide courts in arriving at a sensible range of support. Ordinarily, the selection of a particular amount for a particular duration, within the range, will be selected based on the particular circumstances of the case. If the trial judge is to select an amount or duration that falls outside the Guidelines, then the judge should explain why”.
[32] In the new and improved User’s Guide to the Final Version of The Spousal Support Advisory Guidelines, it is noted:
Three approaches to disability cases can be identified in the decided cases, with the first and second being the most common:
Increase amount, Extend Duration: Many courts respond to the greater need in disability cases by increasing the amount and extending the duration of support [citations omitted].
No Exception: Disability cases should be resolved within the formula ranges, for both amount and duration, according to a slightly-smaller group of cases. [citations omitted].
Lower Amount, Extend Duration: Some courts will extend the duration of spousal support, even to be “indefinite”, while keeping the amount within the range, often at or near the low end [citations omitted]
The Position of the Applicant
[33] The applicant seeks a spousal support order of $1,000 per month of indefinite duration. Her position is that she is entitled to live with some dignity and comfort.
[34] The applicant emphasizes that the respondent was aware of her medical diagnosis prior to their marriage.
[35] In relation to the respondent’s financial circumstances, the applicant submits that the respondent’s current expenses have to be considered in light of the fact that he has a new partner who ought to be contributing to household expenses. The applicant suggests that the respondent’s financial statement does not reflect any such contribution.
[36] The applicant also seeks an order that she be designated a beneficiary of the respondent’s life insurance policy.
The Position of the Respondent
[37] The respondent requests an order of $400 per month to December 17, 2018.
[38] The respondent emphasizes his responsibilities to his newly born child; that the applicant’s spousal support claim is non-compensatory; the marriage was of short duration; and he has paid support since October 2012 in the sum of $650 per month.
[39] The respondent is agreeable to maintaining his life insurance policy in the sum of $50,000 to secure his remaining support obligation to the applicant and proposes to irrevocably designate Helena Rea trustee, as the sole beneficiary under the policy. He seeks an order requiring the trustee of his policy to receive the insurance proceeds in the event of his death in trust and apply so much of the income and/or capital of the insurance proceeds to meet his obligations to pay spousal support. He has filed a proposed form of order which contains further details in relation to the proposed terms of the trust.
Analysis
[40] As previously set out, I am satisfied that the respondent will now declare all of his income for tax purpose and therefore find that the formula resulting from the input of net self-employment income for the respondent most reflects my factual findings.
[41] The divorce mate calculations provided by counsel for that fact scenario indicate that according to The Spousal Support Advisory Guidelines the “without child support” formula results in a range for spousal support of $533 at the low end of the range, $622 mid-range, and $711 at the high end of the range for a duration of 3.5 to 7 years from the date of separation.
[42] I agree with the following observations of Gray J. in Aujla:
50 These cases are very difficult. This is recognized by the authors of the Guidelines, but they suggest that notwithstanding the difficulty, the Guidelines should be adhered to even in the case of a disabled recipient.
51 As recognized in Bracklow itself, the maintenance of a totally disabled spouse requires a delicate balancing of interests. To the extent that he or she is able, the disabled person must contribute to his or her own welfare. The family of the disabled person may be called upon to assist. Society at large will likely be required to contribute. As held in Bracklow, the healthy spouse will also be required to contribute.
52 However, as noted by McLachlin J. at para. 54 of Bracklow, it will not necessarily be fair to require the healthy spouse to satisfy the entire need of the disabled spouse, any more than it would be appropriate to require anyone else to satisfy the entire need.
[43] The applicant’s health condition predated the marriage. She was employed during the marriage as long as her health allowed. The applicant will be unable to earn income in the future and has indefinite needs.
[44] However, the parties were married seven years, a relatively short marriage. They are only 38 years of age. The respondent now has obligations to a child. He paid interim support for two years and three months by the time of trial. His income is not high, but I am satisfied he is earning as much income as he can – making up hours during sickness and vacation and continuing to do free-lance work.
[45] In these circumstances, I cannot agree with the applicant’s submission and order spousal support that ignores the duration proposed by the Guidelines and significantly increases the respondent’s support obligation beyond the Guideline range.
[46] On the other hand, I find the respondent’s submission too limited in terms of quantum and duration.
[47] After balancing all of the relevant interests as described above, I order the respondent to pay to the applicant the sum of $622 per month on the 17th day of each month commencing February 17, 2015 and ending on December 17, 2021.
[48] The respondent’s life insurance shall secure his spousal support obligation in accordance with the terms proposed by Mr. Merrifield on behalf of the respondent. I have signed the form of order presented by Mr. Merrifield with the necessary revisions to reflect the quantum and duration of the support ordered.
[49] If the issue of costs cannot be resolved, counsel may make brief submissions on costs within 45 days.
Justice Lynne C. Leitch
Released: March 30, 2015
CITATION: Pindur v. Pindur, 2015 ONSC 493
COURT FILE NO.: F828/13
DATE: 201503
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Dana Renee Pindur
Applicant
- and -
Hughy James Richard Pindur
Respondent
REASONS FOR JUDGMENT
LEITCH J.
Released: March 2015