ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS 12,117/10
DATE: 20150923

BETWEEN:

SHARON IRIS PORTEOUS
Applicant

– and –

JANE CONWAY
Respondent

Rejean Parise, for the Applicant.

Patricia Meehan, for the Respondent.

HEARD: June 22, 23, 24, 25, 26 and August 5, 2015

R. D. GORDON, R. S. J.

Overview

[1] The Applicant and Respondent lived together for more than 13 years before separating in April of 2010. This trial was held to determine the following issues: (1) The Applicant’s entitlement to spousal support; (2) If entitlement is established, the quantity and duration of support; and (3) The Applicant’s entitlement to a monetary award based upon unjust enrichment of the Respondent.

Background Facts

The Applicant

[2] The Applicant is currently 56 years of age. She was married previously for a period of about nine years and has three children from that marriage: Joseph, Amanda and Ashley. All three children live independently of her. Since her separation from the Respondent she has lived alone.

[3] After her separation from her husband in 1986, the Applicant attended Cambrian College in Sudbury and completed a two year course in Ambulance and Emergency Care and began her career as a paramedic. She also had many community interests. She volunteered extensively in a local search and rescue organization, became a volunteer firefighter, was elected to council of her municipality and was a member of the OPP auxiliary force. In addition to this volunteer work she also worked as a guard at the Espanola detachment of the Ontario Provincial Police on a casual basis.

[4] In 1997, the Applicant was injured on the job and was unable to continue her work as a paramedic. She was granted WSIB benefits and retrained by completing a four year Honours Bachelor of Arts program at Laurentian University in 2002. In the fall of that year, she accepted a position as a paramedic instructor at Confederation College in Thunder Bay, Ontario but due to a disagreement with her supervisor left that position in the spring of 2003. By the fall of that year, she secured new employment as an air ambulance medic out of Thunder Bay, working a rotation of four days on followed by four days off.

[5] In October of 2005 the Applicant had the misfortune of suffering another injury while on the job. Unfortunately, this injury (to her lower back) was more serious and resulted in fusion surgery in the spring of 2009. She was again granted WSIB benefits which she continues to receive today. In the intervening years her benefits were stopped or reduced from time to time, and she undertook several appeals. As of the date of separation she was receiving WSIB benefits of $496 bi-weekly.

[6] In July of 2010 she obtained work with North Shore Victim Services. She went on stress leave from that position at the end of October 2010. In 2011 she worked for a period of three weeks as a health and safety officer at a mine in northwestern Ontario before being advised that she would not be hired on a permanent basis. In the fall of 2011 she obtained work as a flight attendant with WestJet. She continues to be an employee of WestJet, but has been on stress leave since August of 2014. She is in receipt of long term disability benefits and continues to collect WSIB benefits as well. In March of 2011 she received a decision on a WSIB appeal that resulted in her receiving just over $64,000 in retroactive payments.

[7] As of the date of trial, her annual income was $46,935, all of which is non-taxable.

The Respondent

[8] The Respondent’s background is much less varied than the Applicant’s. She is currently 44 years of age. She has never been married and has no children. Following high school she completed a three year Bachelor of Arts program at Carlton University. She decided to pursue a career in law enforcement and has been a member of the Ontario Provincial Police since 1994. She is currently based in Peterborough and holds the rank of Detective Sergeant. Her income varies depending on the amount of overtime she puts in and whether she assumes any “acting positions” in a given year. On average, it would be reasonable to expect her to earn approximately $120,000 in any given year.

[9] A few months following separation she began living with another person who earns about $50,000 per year.

The Applicant and the Respondent Together

[10] The parties met in 1996 when the Respondent was an OPP officer in Espanola, Ontario, and the Applicant was a volunteer on the OPP auxiliary. On either December 31 of 1996 or January 1 of 1997 they began living together at the Applicant’s home in McKerrow, a small town outside of Espanola. Also living at the home at that time were the Applicant’s two daughters.

[11] The house in McKerrow was owned by the Applicant and was mortgaged to the local credit union. The Applicant generally paid the mortgage payments and certain utilities and the Respondent paid the taxes, cable and certain other utilities. Each paid for their own vehicles and insurance. They shared the purchases of groceries. Together they consulted a financial planner and began planning their future together. Although they did not merge their finances by establishing a joint account into which their income was deposited and their expenses paid, it can be fairly said that they shared the expenses pertaining to the home.

[12] Although the Applicant’s daughters saw their father regularly, they came to accept the Respondent as a member of their household and became quite close to her. They all travelled together from time to time, exchanged gifts at Christmas and birthdays, spent time with the Respondent’s extended family, and generally conducted themselves as a family.

[13] In the spring of 2002 the Respondent was given an opportunity to assume greater responsibilities with the OPP and accepted a posting to Red Rock, a small community in northwestern Ontario. Upon completion of her degree at Laurentian University that same year, the Applicant moved to Red Rock to join the Respondent. Ashley and Amanda also made the move to start the school year in September.

[14] The Applicant initially retained her home in McKerrow, renting it out for enough money to cover the expenses associated with it.

[15] Together the parties purchased a home in Red Rock in 2002 for $82,000. They could not have foreseen the ultimate financial consequences of that purchase. Although they knew before buying that certain repair work needed to be done to the home, they were surprised to discover significant leaking in the basement that needed to be addressed. It became clear that one bathroom would not be sufficient for the four female occupants of the home and so another one was constructed. They completed several upgrades to the home and had a garage built to accommodate their vehicles during the cold winter months. In all it is apparent that some $40,000 or more was spent on repairing or renovating the home. Unfortunately, the housing market was not keeping pace with those expenditures. To the contrary, due to the closure of the two mills that employed the majority of the residents of the community, the housing market plummeted.

[16] In the fall of 2006, the Respondent had to consider whether she wished to extend her posting in Red Rock or pursue a move elsewhere. When she learned that her job in Red Rock was being relocated to the community of Geraldton, an hour or two drive away, she and the Applicant decided they would look to relocate elsewhere. Eventually they settled on Peterborough, a community which would also afford the Applicant greater access to medical services. The Respondent began the new posting on November 5, 2007. The Applicant followed once the house had sold in December. The parties elected to use the OPP relocation program rather than taking their chances listing the property on the open market. They received just $60,000 on the sale – at least $60,000 less than they had invested in the property.

[17] While living in Red Rock the parties continued to integrate their finances. They opened a joint account. They took out joint lines of credit. They purchased the house together and together bought a trailer. Although they did also maintain their own separate accounts and credit cards, they both contributed to the expenses of the household. I accept that after the Applicant’s second work injury, the Respondent assumed a greater share of the household expenses. However, it is also clear that the Applicant dedicated much more time supervising and contributing labour to the home renovations and improvements.

[18] When the parties moved to Peterborough, the Applicant was still unable to work due to her back injury. In an effort to contribute some additional income to the household, she worked under the table for their landlord doing repair work on his rental properties. As a result of consultation with her new doctors, the Applicant was come to be seen as a suitable candidate for back surgery and had a back fusion completed on April 9, 2009. Prior to her surgery, she and the Respondent signed Wills in which they left their entire estates to one another.

[19] Fortunately, the Applicant’s surgery was a success. Unfortunately, during the course of her recovery, the Applicant’s brother died of cancer. She was appointed executrix of his estate and spent considerable time looking after his affairs and ensuring that his immediate family was looked after. When she eventually found time to grieve his loss, she found that his death had affected her deeply.

[20] During this time the parties’ financial circumstances were deteriorating. Not only had they suffered a significant financial loss on the sale of the house in Red Rock, the Applicant’s WSIB benefits had been reduced significantly. The Respondent was forced to surrender RSP’s to pay down debt. The Applicant oversaw the refinancing of certain joint debts to reduce their monthly obligations.

[21] With all of these pressures coming to bear, the parties’ relationship began to suffer. That there were problems between them was apparent to the Respondent. The Applicant, on the other hand, did not appreciate the depth of the Respondent’s unhappiness. On April 8, 2010 the parties separated when the Applicant was asked to leave their home. They have not reconciled.

(Decision continues with the same wording and paragraph numbering as the source judgment.)

R. D. GORDON, R. S. J.

Released: September 23, 2015