CITATION: Squires v. Crouch, 2015 ONSC 6050
COURT FILE NO.: 634/12
DATE: 2015Oct2
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TIMOTHY JAMES SQUIRES
Self-represented Applicant
Applicant
- and -
LINDA CHRISTINE CROUCH
Self-represented Respondent
Respondent
HEARD: January 21, 22 and 23, 2015
Harper J.
REASONS FOR JUDGMENT
[1] Issues
a) Should Income be imputed to either party;
b) Determination of child support, retroactive and ongoing;
c) Determination of S. 7 expenses contribution by each party
d) Whether the Applicant should be responsible for medical benefits for the Respondent.
Background
[2] The Applicant, Timothy James Squires (Timothy) and the Respondent, Linda Christine Crouch (Linda), were married on July 2, 1994. They had two children of the marriage, namely, Jeremy Squires, born February 24, 1998 and Matthew Squires, born May 28, 1999. Jeremy resides primarily with Timothy and Matthew resides equally with both parents on a week about schedule.
[3] Timothy and Linda separated on November 11, 2011. Their marriage lasted approximately 17 years. Divorce and Equalization was settled in June 2014. The only issues remaining are set out above.
Linda’s Background
[4] Linda graduated from Niagara College in 1981. She took various upgraded courses and she started to work in Toronto as a title searcher at a large Toronto law firm.
[5] She was a title searcher when she married Timothy. She then worked in her own business doing title searching and did very well with a software program in title searching that she had developed. By the date of marriage she drew a salary form her own business in the approximate amount of $130,000. However, changes in the law put an end to that business.
[6] During the course of the marriage, Linda’s parents gave her approximately $220,000. Linda used that money to pay down all of the family debt. She claimed that part of the reason she did that was in order for her to be a stay at home mom while Timothy worked and upgraded his career. During the marriage, Linda did not work outside of the marriage for approximately 15 years. She primarily cared for the children and devoted most of her time to child care and household management.
[7] At the time of separation in November of 2011, Linda was struggling with depression and alcohol abuse. She went to a 35 day program at Homewood in Guelph Ontario on November 22, 2011. After that program Linda stated that she stopped drinking altogether. She attended Alcoholics Anonymous and she felt that she was now handling life much better. She left Homewood on December 29, 2011. However, in 2012 she had a number of setbacks. She required knee surgery. Subsequent to that she attempted to retrain in order to restart in a different career path. She attended OREA College and obtained her real estate licence in March of 2013. She started to work for a real estate firm in St. Catharines on March 26, 2013. She was just learning the business and developing some contacts.
[8] According to Linda, she was served with divorce papers by Timothy on the day she started at OREA College. She struggled with that and tried to cope with everything until November 2013 when she stated that she was to the point of collapsing. She went to her family doctor. She told her doctor that she was not sleeping and was having problems with nausea and depression. She was sent for a mental health assessment on January 20, 2014 at the Mental Health Unit of the St. Catharines Hospital.
[9] She was diagnosed with depression and anxiety. She was off work until June 2014. In September of 2014, Linda was in a motor vehicle accident.
[10] Linda’s health assessment of August 2014 showed that she was still having mental health issues of depression. She also needed further knee surgery in the future.
[11] Linda was terminated from her real estate firm. She was told that she was simply not making quotas necessary for her to be profitable to the firm.
[12] Linda did a lot of volunteer work. She felt that this was a very good challenge for her and it was also good for her mental health. She was a good organizer and could dedicate herself to community causes. Linda ran for the position of School Board Trustee and was successful in the 2014 election. This is a part time position that earns her approximately $7,000 per annum.
[13] Linda states that she wants to see if she can restart a career in real estate and is willing to make the necessary efforts in that regard.
Timothy’s Background
[14] At the time of marriage, Timothy had a high school education. He was working at GM in St. Catharines on the assembly line. He made a reasonable income at that time. However, he wanted to advance his career. In 1992, GM had announced that they were going to downsize and there may be layoffs in the St Catharines plant. Both Linda and Timothy felt that Timothy was vulnerable as he did not have much seniority. They decided that he should go back to school in order to upgrade and make himself more marketable in an uncertain economy.
[15] Linda assisted Timothy in applying to school. He applied for Occupational Engineering Technology. This was a 4 year program that he started in September 1992. Timothy obtained his diploma in 1996.
[16] After Timothy received his diploma, he went to work for a company (EDS). EDS was taken over by HP and Timothy worked there until April 2010. From 1997, Linda stayed at home to care for the children. She did some part time work in or around 2006/7. She devoted a substantial amount of time to obtaining variances that were needed to a home that she and Timothy bought in 2007.
[17] Timothy went back to school in 2003. He enrolled at Brock University. He took a fulltime BSc course. He graduated with a degree in 2007. Timothy was earning approximately $100,000 at HP when he quit that job and obtained another job earning only $78,000 with the school board of the Niagara Region.
The Law and Analysis
[18] Section 15 of the Divorce Act authorizes the court to order reasonable spousal support. The relevant provisions provide:
15(4) The Court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions, in connection therewith as it thinks fit and just.
(5) In making an order under this section, 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 the spouse during cohabitation, . . .
(7) An order made under this section that provides for the support of a spouse should:
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(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.
[19] L'Heureux-Dubé J. said the following in Moge at pp. 848-49 S.C.R., p. 373 R.F.L.:
The second observation I wish to make is that, in determining spousal support, it is important not to lose sight of the fact that the support provisions of the Act are intended to deal with the economic consequences, for both parties, of the marriage or its breakdown. Marriage may unquestionably be a source of benefit to both parties that is not easily quantified in economic terms. . . .
. . . marriage and the family often require the sacrifice of personal priorities by both parties in the interests of shared goals. All of these elements are of undeniable importance in shaping the overall character of a marriage. Spousal support in the context of divorce, however, is not about the emotional and social benefits of marriage. Rather, the purpose of spousal support is to relieve economic hardship that results from "marriage or its breakdown." Whatever the respective advantages to the parties of a marriage in other areas, the focus of the enquiry when assessing spousal support after the marriage has ended must be the effect of the marriage in either impairing or improving each party's economic prospects.
[20] Recent decisions of the Supreme Court of Canada have made it clear that absent indications to the contrary, a mutual duty of support is created by marriage. In s. 15 of the Divorce Act, Parliament has set out the objectives a support order should serve. No single objective is paramount.
Parties sometimes argue that the economic disadvantage of their spouse was not caused by the marriage or its breakdown, or that her economic hardship was not caused by the termination of the marriage. Shades of these arguments surfaced in this case. It was said that Mrs. Moge voluntarily elected to be the primary homemaker and caregiver, that it was her choice and not the marriage that caused the resultant economic disadvantage. Similarly, it was suggested that her present need and lack of self-sufficiency was not the product of the marriage but of her failure to choose to upgrade her education so she could earn more money.
A formalistic view of causation can work injustice in the context of s. 17(7), as elsewhere. The question under s. 17(7)(a) is whether a party was disadvantaged or gained advantages from the marriage, as a matter of fact; under s. 17(7)(c), whether the marriage breakdown in fact led to economic hardship for one of the spouses. Hypothetical arguments after the fact about different choices people could have made which might have produced different results are irrelevant, unless the parties acted unreasonably or unfairly. In this case, for example, Mrs. Moge, in keeping with the prevailing social expectation of the times, accepted primary responsibility for the home and the children and confined her extra activities to supplementing the family income rather than to getting a better education or to furthering her career. That was the actual domestic arrangement which prevailed. What Mrs. Moge might have done in a different arrangement with different social and domestic expectations is irrelevant.
Similarly, in determining whether economic hardship of a spouse arises from the breakdown of the marriage, the starting point should be a comparison of the spouse's actual situation before and after the breakdown. If the economic hardship arose shortly after the marriage breakdown, that may be a strong indication that it is caused by the family breakdown. Arguments that an ex-spouse should be doing more for herself must be considered in light of her background and abilities, physical and psychological. It may be unreasonable to expect a middle-aged person who has devoted most of her life to domestic concerns within the marriage to compete for scarce jobs with youthful college graduates, for example. Even women who have worked outside the home during the marriage may find that their career advancement has been permanently reduced by the effort which they devoted to home and family instead of their jobs, whether the woman be a janitor like Mrs. Moge or a well-trained professional. Sometimes the breakdown of the marriage may have left the woman with feelings of inadequacy or depression, which make it difficult for her to do more. In short, the whole context of her conduct must be considered. It is not enough to say in the abstract that the ex-spouse should have done more or be doing more, and argue from this that it is her inaction rather than the breakup of the marriage which is the cause of her economic hardship. One must look at the actual society and personal reality of the situation in which she finds herself and judge the matter fairly from that perspective.
[21] Justice Chappel stated in Thompson v. Thompson, 2013 ONSC 5500, at para. 47:
The “condition” of a spouse includes such factors as their age, health, needs, obligations, dependents and their station in life.[18] A spouse’s “means” encompasses all financial resources, capital assets, income from employment and any other source from which the spouse derives gains or benefits.[19] The assessment of the “needs” of a spouse should take into consideration the accustomed lifestyle of the spouse, subject to ability to pay. As the Ontario Court of Appeal stated in Rioux v. Rioux,[20] “self-sufficiency is a relative concept; it relates to achieving a reasonable standard of living having regard to the lifestyle the couple enjoyed during their marriage.” In considering the extent of a spouse’s need from this perspective, the court should take into account the joint income which the parties anticipated they would be able to enjoy as of the time of their separation.
[22] In considering the economic consequences of the marriage breakdown and emotional distress as a result of the breakdown, the Supreme Court of Canada made the following comment in Leskun:
A break-up in the circumstances found here will perhaps inevitably precipitate a period of shock and emotional trauma for the jilted spouse, but Parliament has concluded that the attempt to get to the bottom of all the rights and wrongs that contributed to the break-up is likely impossible and in any event irrelevant to the task of sorting out the financial consequences. As to the “legal tsunami”, I agree with the amicus curiae that, for the most part, parties will realize “that the only way out [of the financial difficulties consequent on the break-up] is if they pull themselves up by their own bootstraps”
. . . Mrs. Leskun is now 57 years of age and her affidavit evidence points to various family difficulties and to her medical problems and those of her family. A court cannot ignore these difficulties, which have been exacerbated by the breakdown of the Leskuns’ marriage. For this reason, and not because of any self-imposed disability, I would reluctantly uphold the order of the Court below and dismiss the appeal.
[23] In this case Linda’s ‘legal tsunami” must be viewed together with her life issues. She did interrupt her career while, at the same time, Timothy made significant advancements in his. She cared for the children and managed the household while he devoted many hours to work and schooling. I find that Linda made significant contributions to Timothy’s career and his ability to earn the income he is presently earning.
[24] Not only did she play the home and child care role, she also paid off all of the family debt with money gifted to her by her parents. I find that the gift was made to her by her parents in order to make her family life better. It was their intention to free her daughter up in order to be able to look after their grandchildren as a stay at home mom. She is entitled to compensatory support. She is also entitled to needs based support having regard to the context of the standard of living that the parties had developed.
Self Sufficiency
[25] The Ontario Court of Appeal in Fisher v. Fisher stated:
Self-sufficiency is often more attainable in short-term marriages, particularly ones without children, where the lower- income spouse has not become entrenched in a particular lifestyle, or compromised career aspirations. In such circumstances, the lower-income spouse is expected either to have the tools to become financially independent or to adjust his or her standard of living.
In contrast, in most long-term marriages, particularly in traditional long-term ones, the parties' merger of economic lifestyles creates a joint standard of living that the lower- income spouse cannot hope to replicate, but upon which he or she has become dependent. In such circumstances, the spousal support analysis typically will not give priority to self- sufficiency because it is an objective that simply cannot be attained. See Linton at p. 27 O.R.
The relevance of standard of living as a measure of dependency in long-term marriages is best encapsulated by L'Heureux-Dubé J. in the following passage from Moge (p. 870 S.C.R.):
Although the doctrine of spousal support which focuses on equitable sharing does not guarantee to either party the standard of living enjoyed during the marriage, this standard is far from irrelevant to support entitlement (see Mullin v. Mullin (1991), supra, and Linton v. Linton, supra). Furthermore, great disparities in the standard of living that would be experienced by spouses in the absence of support are often a revealing indication of the economic disadvantages inherent in the role assumed by one party. As marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to [page257] equal standards of living upon its dissolution (see Rogerson, "Judicial Interpretation of the Spousal and Child Support Provisions of the Divorce Act, 1985 (Part I)", supra, at pp. 174-75).
[26] I find that Linda has made appropriate efforts to jump start her career given the roles she played in her marriage and the significant impact on her of the marriage breakdown at a time when she was attempting to overcome significant health challenges. However, I accept her counsel’s submissions that her income should be imputed for support purposes as follows:
2012 $16,000.00
2013 $21,638.00
2014 $20,000.00
[27] Timothy is now settled in a position with the Niagara School Board. The choice he made to take that position is reasonable under the circumstances. I decline to impute income to him over that shown from this employment. As a result I find his income to be in accordance with his L 150 of his income tax returns as follows exclusive of RRSP draws:
2012 $82,282.00
2013 $82,282.00
2014 $86,626.92
[28] Given the incomes and the present child residency scheme, the SSAG Calculations would suggest a mid-range of spousal support and child support:
2012 Spousal Support $1,334.00
Child Support $515.00
2013 Spousal Support $$2,092.00
Child Support $$882.00
2014 Spousal Support $2,092.00
Child Support $882.00
2015 Spousal Support $2,092.00
Child Support $882.00
Support owing for 2012 $16,008.00
Child support owing 2012 $ 6,180.00
Total owing $22,188.00
Total Paid $23,400.00
Overpayment $ 1,212.00
Support owing for 2013 $35,699.00
Total paid for 2013 $14,400.00
Underpayment $21,288.00
Support owing for 2014 $35,699.00
Total paid for 2014 $21,180.00
Underpayment $14,519.00
Support owing for 2015
to August 31, 2015 ($2092x8) $16,736.00
Total paid for 2015 $12,000.00
Underpayment $ 4,736.00
TOTAL ARREARS
To August 31, 2015 $39,331.00
[29] Linda had to withdraw RRSPs and reduce her assets that she obtained as a result of her equalization payment in order to pay her living expenses.
[30] In addition to the base amount of support owing, I accept the submission of counsel for Linda that Linda paid for expenses that I find to be extraordinary expenses such as:
Music lessons consisting of drum and guitar
7 weeks of training camp for Matthew
Driving lessons for Jeremy
Chiropractic expenses and hockey registration for Matthew
[31] I find that the evidence supports my finding that the above expenses were necessary and in the best interests of the children. Matthew is passionate about playing the drums and he excels in it. He also needs the training camp activity in order to effectively deal with his self-image.
[32] I find that Linda paid a total of $7,110.00 for the above expenses. Timothy is responsible for 75 per cent of those expenses. That amounts to $5,332.50. He has paid a total of $85.00. He shall pay arrears of extraordinary expenses in the amount of $5247.50.
[33] On a go forward basis, Timothy shall pay spousal support in the amount of $2,092.00 per month and child support in the amount of $882 per month commencing September 1, 2015.
[34] Timothy shall also continue to cover Linda on his extended health benefits from his employer. If such benefits are not covered, a motion to vary support may be brought.
[35] The parties may provide brief written submissions on costs within 30 days.
Harper J.
Released: October 2, 2015
CITATION: Squires v. Crouch, 2015 ONSC 6050
COURT FILE NO.: 634/12
DATE: 2015Oct2
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TIMOTHY JAMES SQUIRES
Applicant
- and -
LINDA CHRISTINE CROUCH
Respondent
REASONS FOR JUDGMENT
Harper J.
Released: October 2, 2015