ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-12-0050

DATE: 20150907

BETWEEN:

GEORGE EMMANUEL ROTHSCHILD
Applicant

– and –

MARY SARDELIS
Respondent

Thomas R. Hunter, for the Applicant

Mary Sardelis, self-represented

HEARD: May 28-29, June 1,2, 3, 4, 10 2015

REASONS FOR JUDGMENT

J. MACKINNON J.

[1] The significant issue for trial is Ms. Sardelis’s claim for spousal support. In this context, double dipping, age of retirement and health related need all come into play.

[2] This was a marriage of 24 years duration, without children. The separation took place on November 30, 2009. Mr. Rothschild is now 62 years of age; Ms. Sardelis is 56 years of age. Despite the passage of time, a divorce has not yet issued. Nor has any agreement or order for spousal support been made. On November 28, 2014 a final order did issue on consent reflecting that all property had been divided to the mutual satisfaction of the parties and no equalization payment was owing between them. The outcome of that property settlement was that each party had financial holdings of approximately $915,000, including the value of each individual’s pension.

[3] Each party retained his or her employment pension. The matrimonial home and investment properties, but one, were sold. Ms. Sardelis purchased Mr. Rothschild’s half interest in that one property and has retained it for investment purposes. She has also acquired a personal residence. Mr. Rothschild has re-partnered; he resides in a house owned by his partner. Together they have acquired a jointly owned property located in a rural area. Mr. Rothschild shows a current net worth, not including his pension, of $832,590. Of this, $529,130 is inheritance. Ms. Sardelis shows a current net worth of $898,240. However Ms. Sardelis includes a value for her employment pension. Subtracting her pension value leaves her a net worth of $801,225.

[4] During cohabitation the parties considered their retirement. Their discussion was that Mr. Rothschild would retire in March 2012, the earliest age on which he could receive an unreduced pension. Ms. Sardelis would retire at the same time. This would have been early retirement for her, but her medical condition was such that working to a standard age of retirement would be unlikely. The plan was to “live it up” using their pension income, supplemented by rental income derived from the various investment properties they had acquired. They wanted to travel. They also discussed Mr. Rothschild’s ability to earn additional income after retirement through his skills as a carpenter and cabinet maker.

[5] Mr. Rothschild did not retire in 2012. He testified that after the separation he decided he should work until June 30, 2016. This plan changed very recently. On May 12, 2015 he gave notice to his employer that he would retire on June 30, 2015. His testimony was that his vision had deteriorated to the point he does not feel comfortable performing his teaching duties in shop and class. Mr. Rothschild has a condition known as idiopathic central serous choroidopathy. He had laser surgery in April 2013 which brought about some improvement. He had another surgical intervention in April, 2015. He decided to retire on short notice when, 5 weeks post-op he did not discern any improvement in his vision.

[6] In 2010 his total income was $99,037.70. In 2011 it was $101,001.09. In 2012 his total income was $114,517.26 (of which $102,371 was employment income and the balance taxable capital gains). In 2013 his total income was $112,593.68, of which $102,359.42 was employment income. In 2014 his total income was $111,390.81 of which $103,622.49 was employment income.

[7] Mr. Rothschild has tendered actuarial evidence to show that after retirement on June 30, 2015 his pension will be $49,739 per year plus a bridge to age 65 of $10,556. Of this, the portion not already included in the equalization of net family property is $11,512 per year plus $2,756 of the bridge.

[8] Ms. Sardelis has longstanding, serious medical conditions. The most debilitating is severe, progressive S-shaped thoracic scoliosis of her spine which has had a significant impact on her pulmonary capacity. She has been described by her respirologist as having the lung capacity of an 87 year old. Ms. Sardelis has always been a well-educated, dedicated employee, who very much enjoyed her work. Her employer accommodated her disability for some time, but in March 2015 she availed herself of Long Term Disability.

[9] In 2010, Ms. Sardelis earned $55,027.14, and had rental income, for a total income of $74,555.75. In 2011 her employment income included severance pay and came to $68,804.25. With capital gains her total income was $169,878.31. In 2012 her employment income was $49,730.69; her total income was $91,440.05. In 2013 her employment income was $49,749; her total income was $76,067.11. In 2014 her employment income was $48,144.78; total income was $48,983.25.

[10] It is agreed that Ms. Sardelis is entitled to spousal support for the period of time commencing January 2010 to and including June 30, 2015. Mr. Rothschild proposes a lump sum of $53,656 to satisfy this obligation. Ms. Sardelis is asking for $152,226 for this period of time. It is also agreed that Mr. Rothschild has made payments entitling him to a credit of $33,792.91 towards his spousal support obligation during this period. However, Mr. Rothschild says the credit should be applied to reduce the balance owing to $19,865, whereas Ms. Sardelis says she has already taken the credit into account in her calculations.

[11] In terms of ongoing support, Mr. Rothschild submits there should be none. He maintains he is entitled to retire at his age, and with his years of service and vision problem. He opposes double dipping with reference to his pension income. He denies that Ms. Sardelis has established facts to bring her within an exception to the general policy against double dipping. For her part, Ms. Sardelis submits that the court should not condone early retirement by Mr. Rothschild, or should impute income to him in the same amount as his pre-retirement income. She is asking for spousal support in the monthly amount of $4,025 on an indefinite basis from July 1, 2015, forward.

Spousal Support from January 2010 to June 30, 2015

[12] Ms. Sardelis seeks $90,000 in spousal support payable as a lump sum without income tax consequences for the three years from January 2010 to the end of 2013. She seeks $41,484 for 2014, and $20,742 for the first 6 months of 2015. Ms. Sardelis did not provide a DIVORCEmate calculation. She did however submit that this was an appropriate case for the court to equalize the parties’ net disposable incomes, with a twist, namely that she should receive additional amounts from Mr. Rothschild sufficient to cover one half of her uninsured medical expenses. She is also asking for an additional $625 per month for savings. She explained the need for additional support for savings by saying she had already encroached on capital and was likely to continue to have to do so in future years because of her very high medical expenses and limited income.

[13] At present her annual income is $46,800 from Long Term Disability and net rental income. Her pension entitlement calculated as of the end of 2014 will be $16,168.92 annually, when she retires.

[14] The spousal support amounts Ms. Sardelis seeks clearly exceed the upper end of the range suggested by the Spousal Support Advisory Guidelines. That range is limited at an equal split of net disposable income as defined by SSAG. For 2014, Ms. Sardelis’ uninsured medical expenses were about $12,000. She seeks half of that, on a monthly basis, plus the $625 for savings, or $1125 per month over and above the amount that would bring her to 50 percent of their NDI.

[15] The record of evidence before me does not support the contention that Ms. Sardelis has in fact encroached on capital. When the property settlement was achieved, she had about $915,000 in net worth, including the value of her pension. Removing it, her net worth would have been about $825,500. Her net worth now, not including any value for her pension, is about $800,000. She testified that she had spent $25,000 on modifications to the house she purchased after separation to accommodate her physical disabilities. That would appear to account for the decline in net worth, and may not be a decline if the money spent has added to the value of her house.

[16] Nor were current values of her home and her other real property provided.

[17] Ms. Sardelis does have two debts totalling $42,000, for a line of credit and a credit card. As at the date of separation she had no such debt. However, Mr Rothschild did not contribute to her expenses or pay any spousal support after the matrimonial home was sold in November 2013.

[18] Both parties have health coverage pursuant to Group Plans available through employment. Ms. Sardelis testified that her coverage was for 80 percent of eligible expenses and Mr. Rothschild’s Plan covered the other 20 percent. The uninsured portion and other health related expenses not covered by the Plans are proper entries in Ms. Sardelis’ budget. However her budget does not properly reflect these amounts. She included expenses of $20,400 per year in her budget whereas as noted the uninsured amount was actually about $12,000 last year.

[19] There were other problems with her financial statement. It included all the source deductions related to her employment income, but no information about those related to her current long term disability income. She showed almost $600 per month for income taxes which were deducted at source from her paycheque in 2014. However her 2014 income tax return shows $6,959 of this was refunded to her. She no longer incurs $100 per month to park at work. She claimed a $200 per month expense for an RRSP contribution. However her testimony was that she contributed the maximum she could to an RRSP by transferring funds into it, from a non-registered account.

[20] Nor did she include her annual net rental income of $5,000 in her financial statement.

[21] In this way, the income and expense statement she filed with the court is significantly inaccurate. This finding is consistent with the consumer debt she has added since separation which totals $42,000, or on average $8,400 a year; nowhere near the annual deficit of $37,559 shown on her financial statement.

[22] Mr. Rothschild proposed his spousal support obligation for these years should be fixed between the mid-point and the high end of the SSAG range. He proposed using the parties’ employment incomes only for this purpose, in order to eliminate the capital gains and dividend income they each received arising from the sale and distribution of proceeds of sale of jointly owned capital properties.

[23] Ms. Sardelis submits that her award should be above the high end and should be treated as an exception to the SSAG because of her medical expenses and the impact of her illness on her earning capacity. Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 SCR 420 [Bracklow] is the leading authority addressing entitlement to spousal support and sick or disabled spouses. The Court posed the question 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?

The Court answered the question at para [48]:

Divorce ends the marriage. Yet in some circumstances the law may require that a healthy party continue to support a disabled party, absent contractual or compensatory entitlement.

And at para [49]:

But where need is established that is not met on a compensatory or contractual basis, the fundamental marital obligation may play a vital role. Absent negating factors, it is available, in appropriate circumstances, to provide just support.

[24] The conclusion that Mrs. Bracklow was entitled to support is set out at para [60]:

Bearing in mind the statutory objectives of support and balancing the relevant factors, I conclude that Mrs. Bracklow is 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 to care for his ex-wife.

[25] Ms. Sardelis’s entitlement to spousal support is not contested. Rather the issue for determination both before and after June 30, 2015 is quantum of support. Bracklow is not authority for the proposition that once need based entitlement is established, the quantum of the award will equal the need:

[54] It does not follow from the fact that need serves as the predicate for support that the quantum of the support must always equal the amount of the need. Nothing in either the Family Relations Act or the Divorce Act forecloses an order for support for a portion of the claimant’s need, whether viewed in terms of periodic amount or duration. Need is but one factor to be considered.

[26] Ultimately the Court in Bracklow returned the determination of quantum of support to the trial judge, and commented at para [61]:

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.

[27] As it turned out, at the rehearing the trial court ordered a five year limited term support even though it was clear Mrs. Bracklow would never be self-supporting: (1999) 1999 5311 (BC SC), 3 R.F.L. (5th) 179.

[28] Ms. Sardelis referred me to many reported decisions. Several addressed entitlement where the dependency arose from ill health or disability. She did not direct me to any case where spousal support exceeded the SSAG ranges to the significant extent she is seeking. For example, she relied on S.J.M. v. J.L.M., (2010) BCSC 154 (SC) where the court said it was setting the support at the upper end of the range, but ordered a rounded amount of $4,500 rather than the calculated amount of $4,474. Another case was Flieger v. Adams, (2012) NBCA 39, where the motion judge had ordered an amount that was $118 per month above the SSAG range. An appeal from this decision was dismissed having regard to the reasons provided for going over the range: the motion judge had insufficient evidence to accurately determine the payor’s income and would have imputed income to him; he derived a benefit from sharing expenses with a partner; she allowed double recovery from his pension.

[29] I concluded that the spousal support during these particular years should be at the high end of the SSAG range. With the adjustments noted to her financial statement I am satisfied that spousal support at or near the high end of the SSAG range will satisfy the need Ms. Sardelis has established for spousal support.

[30] There are other factors tending to the high end of the spousal support range. The length of the cohabitation, namely 24 years, is one such factor. Some financial dependency did arise during cohabitation; in particular Ms. Sardelis had the lower income and the higher medical expenses. In the years following separation Ms. Sardelis’ medical conditions resulted in her working a four day week, with reduced income, and eventually going on Long Term Disability, with a further income reduction. She had need and Mr. Rothschild had the ability to assist her, but stopped doing so after the matrimonial home was sold in November 2013.

[31] I also note that the SSAG are advisory, do recognize that there may be exceptional circumstances arising from illness or disability, and that the preference of the authors is that the amount should be fixed within the appropriate range, notwithstanding the recipient’s disability. See Aujla v. Singh 2012 CarswellOnt 11695 at [37] to [39].

[32] Ms. Sardelis also established that she did not get reimbursed from joint funds for the income taxes she paid on her share of the capital gain arising from the sale of the final investment property, whereas Mr. Rothschild did. The gain she reported was $26,605. It appears from the schedule to her return that $22,017 derived from this particular investment property. Ms. Sardelis submitted that in fairness she should also be reimbursed as part of her support claim, because the obligation to pay these taxes makes up part of her need. It is a difficult matter to quantify. Her total income for 2013 was $76,067, yet after her deductions, her taxable income was only $46,653 and with credits the tax payable was only $2,518. I observe from the return that she had made $7,135 in source deductions for income tax and was refunded $4,690. I infer both that she was taxed at least at her average rate on the reported taxable gain and that had she not had the capital gain income, her personal deductions were such that she may have had the full amount of $7,135 refunded to her.

[33] Overall I preferred Mr. Rothschild’s approach to quantum of support to that taken by Ms. Sardelis. I corrected for the actual amount of eligible medical expenses as per Ms. Sardelis’ income tax returns and trial testimony. I did not include her severance pay as income in 2011 given that it had been included in the equalization process. I adopted Mr. Rothschild’s approach of basing the lump sum portion of the award on the after tax benefit to Ms. Sardelis.

[34] Based on my findings and for the reasons given I have determined the spousal support due to Ms. Sardelis for 2010 to and including 2013 should be payable at the high end of the SSAG range. On a net to her lump sum basis this amounts to the rounded figure of $62,000. This figure includes $4,000 on account of the tax issue discussed above. After applying the agreed upon credit of $33,973, the balance owing is $28,603, which I order payable forthwith.

[35] Periodic support at the high end of the range is payable commencing January 2014 to and including June, 2015 at the rate of $2,050 each month. In setting this amount I have had regard to the fact that Ms. Sardelis was earning $48,145 until March 2015 when her long term disability started at $41,824, on an annual basis, together with her annual rental income of $5,000 throughout the period. The amount of $2,050 is the amount of support across this eighteen month period, prorated, to take into account the change in her income.

[36] These periodic payments are all in arrears and total $36,900. This sum is ordered to be paid to Ms. Sardelis by Mr. Rothschild forthwith.

Spousal Support Commencing July 1, 2015

[37] Mr. Rothschild has retired and will commence receiving his pension income of $60,295 annually as of July 1, 2015. Of this, $14,268 is referable to the undivided portion of the pension. Mr. Rothschild says no support should be payable from July 2015 forward. He says his pension income from the divided portion should be excluded for the purpose of considering spousal support. He also asks the court to terminate his spousal support obligation permanently as of July 1, 2015.

[38] Ms. Sardelis is currently in receipt of long term disability insurance through her employment in the annual amount of $41,824. She doubts that she can remain on long term disability for more than two years from March 2015. There was no first hand or documentary evidence from her employer to confirm the maximum duration of her disability coverage. However it is clear and I accept as fact that when the long term disability coverage is no longer available to her, she will have to retire.

[39] As of now were she to retire for medical reasons she would receive pension income of $16,168.92 annually. She is entitled to an unreduced pension at age 60, some 4 years from now. I do not know exactly what her pension annuity would be at that time, but it is unlikely to increase significantly.

[40] Ms. Sardelis submits the court should consider Mr. Rothschild’s retirement as premature. She disagrees that his vision problem compelled or justified his retirement. She submits that he should have asked for accommodation from his employer, before choosing outright retirement. Alternatively, she submits income should be attributed to him from other work he could obtain in carpentry or cabinet making, consistent with their pre-separation discussions that he would work after retirement to supplement their income. Ms. Sardelis also submits that income should be attributed to Mr. Rothschild based on what he could generate by way of investment income from his sizeable inheritance of $529,130. Finally, she submits this is a case where the court should include all of Mr. Rothschild’s pension income in the determination of spousal support.

[41] On the basis of these submissions, she is asking for $4,025 per month spousal support, commencing July 1, 2015, on an indefinite basis.

[42] Is Mr. Rothschild’s retirement premature? He is 62 years old, with 29.5 years of service with this employer. During cohabitation, their mutual intention was for him to retire in 2012, the first date at which he would qualify for an unreduced pension. Three years have passed since that date. After separation he decided he would need to continue to work and his intention was to retire June 30, 2016. His actual retirement date of June 30, 2015, is early in relation to that.

[43] His pension plan speaks to “normal” and “early” retirement. Normal retirement date is defined as the last day of the month in which the member reaches age 65. The Plan has early retirement options. The first requires the member to be 50 or 55 years of age, and meet other length of service requirements. An early retirement pension is unreduced if the member is 60 with 20 years of service, or has 85 points. Mr. Rothschild reached this age in March 2012. According to the terms of his pension plan, Mr. Rothschild is taking early retirement with an unreduced pension.

[44] I have been provided with the Calculation of the Family Law Value prepared by the Pension Plan and used in the calculation of Mr. Rothschild’s Net Family Property for the purposes of determining the equalization payment. The calculated value was a weighted average of three values, calculated as if Mr. Rothschild had retired on the date of separation at age 56.50 years of age (the highest value), on reaching age 65 ( the lowest value), and on the first date on which he could have retired with an unreduced pension, which was at 58.83 years of age. The weight given to each value respectively was 2.3 %, 39.1 % and 58.6 %.

[45] Applying the same proportionate weighting to Mr. Rothschild’s age at each of these valuation dates would suggest the “weighted” age used for retirement in the Family Law Value calculation was just over 61 years. This suggests that Mr. Rothschild’s actual retirement age of 62 years is not “early” in relation to the valuation of his pension used for the equalization of net family property.

[46] Mr. Rothschild explained his decision to retire in relation to his vision problem. He delivered a medical report from Dr. Desroches who is a specialist in diseases and surgery of the retina and vitreous. Dr. Desroches first saw Mr. Rothschild in 2009 when vision in his right eye had decreased to 20/60. This was due to a central serous choroidopathy. Dr. Desroches treated this with laser on July 9, 2009. This appears to have restored his vision to 20/25 in the right eye. He saw Mr. Rothschild again in March 2013 at which time another focal laser treatment was undertaken. In April 2015 a different, Visudyne treatment was done because the condition was then chronic.

[47] In his report Dr. Desroches describes the condition as ongoing, in chronic stage, with the prognosis of recurrence on and off over the next years and may or may not cause a decrease in vision in the right eye below the current 20/25. Dr. Desroches had not seen Mr. Rothschild since the Visudyne treatment. The post treatment follow up appointment was scheduled for July 29, 2015.

[48] Mr. Rothschild decided to retire before that follow up appointment. He did not say whether he had tried to accelerate his appointment in order to obtain his doctor`s opinion in time for the trial. Nor does the report filed actually speak to the issue of retirement, ability to continue to work, or address the specific issues Mr. Rothschild relied on in support of his decision, primarily visual acuity required in the shop. As Ms. Sardelis pointed out, Mr. Rothschild had not asked his employer for any accommodation that might enable him to continue to work. I was not persuaded that Mr. Rothschild had to retire as of June 30, 2015 for medical reasons. I find he made a quick decision, without consulting his doctor, and not coincidentally in my view, sixteen days before this trial commenced.

[49] Timing of retirement alone or with other evidence may support an inference of voluntary reduction of income, or of a motivation to avoid paying spousal support. Mr. Rothschild has not established a medical reason necessitating his decision to retire at the end of June 2015 rather than June 2016 as he had previously contemplated. He has established that he has a chronic eye condition that may impact on his ability to fulfill all of his work obligations. I find this was a contributing factor to his decision to retire when he did. But I infer from the timing of his decision and the fact that he made it without returning to his doctor for a post treatment follow up appointment, when he would have learned the doctor`s opinion as to the success, if any, of the procedure, that he was also motivated to a significant extent by the proximity of the trial.

[50] The specific inference I draw is that Mr. Rothschild preferred to retire a year earlier than planned in an effort to achieve a spousal support outcome based on an actual retirement date and income, as opposed to presenting a case based on an intended retirement date one year hence, that is, an event that had not yet occurred, might be regarded as uncertain, and even if accepted by the trial judge, would at least expose him to an additional year of spousal support payments.

[51] Taking retirement may be reasonable even if it is not necessitated by medical reasons. Here the timing of Mr. Rothschild’s retirement is reasonable having regard to the pension valuation included in his net family property. This is not a case where he negotiated a property settlement based on the lowest possible value for his pension, and then retired at an earlier than would be indicated age. The timing is also reasonable having regard to his age, years of service and entitlement to an unreduced pension.

[52] Accordingly this is not a case where the relevant findings all point in the same direction. Based on the findings I have made I have concluded that income should be imputed to Mr. Rothschild for an additional year until June 30, 2016, and based on his 2014 income. That is the date on which he had planned to retire after separation, in consideration of his post separation financial circumstances. I decline to impute employment income to him after June 30, 2016, since the weight of the findings I have made establish that to be a reasonable retirement date.

[53] Accordingly I order Mr. Rothschild to pay spousal support in the sum of $2,250 per month to Ms. Sardelis on the first day of July 2015 and on the first day of each month to and including June 1, 2016. This amount is the high end of the range using his 2014 employment income and her current disability and rental income.

Boston v. Boston

[54] Having determined that employment income ought not to be imputed to Mr. Rothschild after June 2016, I will consider the issues surrounding double dipping in relation to my decision as to what, if any, spousal support he should be required to pay to Ms. Sardelis after that date.

[55] The Supreme Court of Canada decision in this case is reported at 2001 SCC 43 [Boston]. The term double recovery (from which “double dipping” derived) was used to describe the situation where a pension, once equalized as property, is also treated as income from which the pension holding spouse must make spousal support payments. The Court described double recovery as inherently unfair where to a large extent the division or equalization of assets has required the one spouse to include the future right to the pension income as property, and to transfer real assets of equal value to the pension to the other spouse. The Court went on to say how double recovery should be avoided and in what circumstances exceptions might be made at paras. 64-65:

[64] To avoid double recovery, the court should, where practicable, focus on that portion of the payor’s income and assets that have not been part of the equalization or division of matrimonial assets when the payee spouse’s continuing need for support is shown (Hutchison v. Hutchison (1998), 1998 14876 (ON SC), 38 R.F.L. (4th) 377 at para. [9]). In this appeal, that would include the portion of the pension that was earned following the date of separation and not included in the equalization of net family property.

[65] Despite these general rules, double recovery cannot always be avoided. In certain circumstances, a pension which has previously been equalized can also be viewed as a maintenance asset. Double recovery may be permitted where the payor spouse has the ability to pay, where the payee spouse has made a reasonable effort to use the equalized assets in an income-producing way and, despite this, an economic hardship from the marriage or its breakdown persists. Double recovery may also be permitted in spousal support orders/agreements based mainly on need as opposed to compensation, which is not the case in this appeal.

[56] The family law value of both spouses’ pensions was included in the net family property calculations that lead to the settlement of their property issues in November 2014. This is not in dispute. Whereas Mr. Rothschild says only the income stream from his undivided pension should be considered in relation to ongoing spousal support, Ms. Sardelis says she falls into the exceptions to Boston. In my view, she has not established that she does.

[57] Ms. Sardelis has the onus to prove on balance of probabilities that she falls within an exception to Boston such that double recovery should be available to her. She has not met this onus. Ms. Sardelis has not established that she is using her share of the equalized assets in a reasonable income producing way or that having done so, an economic hardship from the marriage or its breakdown persists. It also follows from her omission to demonstrate use of her assets in a reasonable way to generate income for her own support that she has not been able to persuade me of ongoing need that she cannot meet on her own.

[58] Ms. Sardelis asked the court to impute income to Mr. Rothschild at the rate of 8 percent on his inherited funds. This rate of return was not supported by evidence and is very high in relation to the statutory rates of interest well known to the court. Ms. Sardelis did not impute income to herself based on her liquid assets. In closing submissions Ms. Sardelis wanted to provide information she said she had as to what Mr. Rothschild could earn by setting up a 25 year annuity with his inheritance. Yet she did not provide the court with evidence of the annuity income she could derive from her two sizeable funds, an investment account containing $210,977, and an R.R.S.P. containing $275,205.

[59] I formed the impression that Ms. Sardelis focussed on imputing income to Mr. Rothschild from his inheritance because it would not attract a double dipping defence. She also failed to acknowledge that Mr. Rothschild’s largest asset at the date of separation was his employment pension which he is fully utilizing for his own support.

[60] It is true that the court may consider income available from inherited funds as forming part of a support payor’s ability to pay. As the claimant for support, Ms. Sardelis may not omit an evidentiary presentation as to how she could best generate an income stream for herself for her lifetime using her own assets and successfully claim that she comes within an exception to Boston.

[61] Ms. Sardelis submitted that she must retain her capital intact because she had already encroached into it to meet expenses and would have to continue to do so on an ongoing basis. As has already been noted this was not borne out by the evidence. Her net worth has not declined significantly nor is the consumer debt incurred since separation significantly high. She will now be able to discharge that debt.

[62] For these reasons I conclude that the general rule in Boston should apply and that Ms. Sardelis has not established that she falls within an exception to that decision. It follows from this finding that I do not make any order for spousal support after June 30, 2016.

Future Need

[63] Ms. Sardelis also referred to her future need, after she retires on what she expects will be annual pension income of $16,168, reducing to $11,627 when she is 65. Since the undivided portion of his pension is $14,268 until his age 65 and then reduces to $11,512, Mr. Rothschild says her spousal support entitlement should be extinguished now, once and for all.

[64] The evidence did not clearly establish when Ms. Sardelis would no longer be eligible for long term disability coverage and would have to take her retirement pension. I was not satisfied that her own or her co-worker’s testimony was authoritative with respect to this issue. Neither could purport to speak for the employer or the plan administrator. If the disability coverage has a finite period of time this is a fact capable of proof by a qualified witness or authoritative document. I had neither.

[65] Based on the evidence I did receive I find her long term eligibility will probably not expire before March 2017, and that she will retire with an unreduced pension in June 2019. Clearly it is in Ms. Sardelis’s interest to remain on disability as long as she can. Making every effort to do so is part of her obligation to contribute as best she can to her own support.

[66] I have also decided that based on her current income and my conclusion that she has not established an exception to Boston; no spousal support will be awarded to her after June 30, 2016. To go beyond that to declare now that Ms. Sardelis will or will not have a future claim to spousal support when she is in receipt of her retirement pension, would be speculative. Nor will a court declare as asked by Mr. Rothschild that she is forever barred from seeking spousal support, irrespective of any future change in circumstances.

[67] Accordingly an order will go granting spousal support in accordance with these reasons.

Life Insurance

[68] Mr. Rothschild shall maintain life insurance coverage in an amount sufficient to secure his obligation to pay spousal support to Ms. Sardelis, as required by this order. If the parties are unable to agree to the appropriate term to be included in the order, I may be spoken to.

Divorce

[69] Both parties sought a divorce in their pleadings. They have lived separate and apart since November 30, 2009. The grounds for divorce are established and the divorce is granted.

Costs

[70] I will determine the issue of costs by written submissions. These should be no more than 5 pages in length, plus attachments of any relevant offers to settle and bills of costs. The applicant shall deliver his submissions by September 25 and the respondent by October 9. The applicant may deliver a brief reply if necessary, but no later than October 16, 2015.

J. Mackinnon J.

Released: September 7, 2015

COURT FILE NO.: FC-12-0050

DATE: 20150907

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

GEORGE EMMANUEL ROTHSCHILD
Applicant

– and –

MARY SARDELIS
Respondent

REASONS FOR JUDGMENT

J. Mackinnon J.

Released: September 7, 2015