ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: Trucido and Trucido, 2015 ONSC 665
COURT FILE NO.: FS-12-76176-00
DATE: 20150130
B E T W E E N:
SANDRA TRUCIDO
Self-Represented
Applicant
- and -
JOSE TRUCIDO
Elena E. Mazinani, for the Respondent
Respondent
HEARD: January 15 & 19, 2015
REASONS FOR JUDGMENT
Justice Thomas A. Bielby
INTRODUCTION AND OVERVIEW
[1] The applicant has before the court a claim for spousal support and it is the only issue in this trial.
[2] The parties are husband and wife and were married on June 24, 1990. They separated from each other on April 28, 2012.
[3] There are two adult children of the marriage, Daniel, born March 12, 1991 and Natasha, born January 6, 1994. Both reside with their mother, the applicant. Neither is a child for support purposes.
[4] The applicant is currently 46 years of age and the respondent 60 years of age.
[5] The court only heard from two witnesses, being the parties themselves.
[6] On September 11, 2013, Baltman J. made an interim spousal support order requiring the respondent to pay to the applicant $1,900.00 per month. The evidence revealed that the respondent was employed full time as an auto body technician earning approximately $80,000.00 per year.
[7] As was noted in the endorsement of Van Melle J., dated January 23, 2014, the respondent had not voluntarily made any support payments pursuant to the outstanding order and, in February 2014, the Family Responsibility Office (FRO) commenced garnishing the respondent’s wages. The respondent, soon thereafter, declared bankruptcy.
[8] In July 2014, the respondent stopped working and claims that for health reasons he was no longer able to work. Thereafter, he collected Employment Income Benefits and in January 2015, started receiving long term disability benefits.
[9] In an endorsement dated October 23, 2014, Andre J. noted that the respondent earned, in 2013, $78,000.00 and that the respondent claimed he was depressed after learning the bankruptcy did not relieve the wage garnishment.
[10] In 2012, shortly after the separation, the respondent was diagnosed with prostate cancer and underwent surgery in the summer of 2012. He returned to work in the early fall of 2012.
[11] The applicant submits that throughout the 22 year marriage the respondent was the major breadwinner and that she was dependant on him.
[12] The respondent does not deny this but submits that, as a result of his prostate surgery and his mental health issues, he has been unable to work since July 2014 and that it is unlikely he will return to work.
EVIDENCE
[13] The applicant is a self-employed office and house cleaner. At the time of the marriage she had a contract cleaning a private school. She also cleaned the homes of a number of clients.
[14] In December 2012, the applicant lost the school contract but approximately six months later she received a contract to clean the premises of Applewood Chevrolet.
[15] The applicant testified that, in 2013, she earned $13,634.88 and expects the same reported income, after expenses, for 2014. The evidence suggests she earns somewhat more income.
[16] The applicant rents an apartment where she lives with her two adult children. Neither child provides her any financial assistance on a regular basis. The applicant testified that the children help out when they can.
[17] Natasha works part-time in retail and is in the process of upgrading her academic credits to return to school in the fall of 2015. Daniel works in construction and is currently laid off. There is some evidence that he helps his mother with her cleaning jobs.
[18] The applicant testified that after the separation she had to beg the respondent for money. She testified that the respondent may be going through tough times but so is she. The applicant believes the respondent is able to work and noted he immediately went bankrupt when his wages were garnished. In her opinion, the respondent does not wish to pay her anything.
[19] The applicant, without providing any real evidence in this regard, believes the respondent is working and is being paid in cash which he does not declare.
[20] The applicant worked throughout the marriage, only taking time off when she had her children. She operated a daycare service taking care of two or three children other than her own when Natasha was one year old.
[21] On cross-examination, the applicant acknowledged that her first company was called Full Cleaning but now operates under the name of Just Cleaning.
[22] The income tax returns of the applicant reflect the following line 150 income for the years set out:
2009 $9,190.00
2010 $9,401.00
2011 $2,189.00
2012 $11,520.00
2013 $13,635.00
[23] In her financial statement, sworn October 9, 2012, the applicant claimed a monthly income of $1,700.00 and monthly expenses of $49,936.00. She could not explain how she made up the deficit or how her lawyer at the time came up with these numbers.
[24] The applicant’s financial statement, sworn August 20, 2014, sets out an income of $34,400.00 per year but includes in that figure $916.00 per month in spousal support. This amount was only received for four or five months as a result, I presume, of the garnishment. Her income as shown on this financial statement, without spousal support, was $1,950.00 per month. The applicant’s monthly expenses total $34,270.20.
[25] The applicant, on cross-examination, denied having an annual income of $40,000.00 or more, or even an income of $34,000.00.
[26] As a result of receiving monies from the sale of the matrimonial home, the applicant was able to pay off her car loan, an RRSP loan, and her son’s school loan. She continues to have a visa debt of approximately $2,500.00, a little more than it was at the date of separation.
[27] The parties’ joint line of credit was also paid from the proceeds of sale from the matrimonial home.
[28] The applicant testified that currently she can count on receiving $1,300.00 per month from the car dealership cleaning contract. The balance of her income, for any given month, is never the same. It depends on how many homes she is asked to clean and how often.
[29] The applicant works at the car dealership five hours each evening. If she is asked to clean a house she starts at 9:00 am. She admitted her son may help her clean but testified that she does not pay him.
[30] In the applicant’s opinion, she works more than 40 hours per week.
[31] In regards to the monies she received from the sale of the house, the applicant testified that it went to pay off debt, as noted above, and to pay her lawyer. At Tab 9 of the trial record is the trust ledger from July 2013, which sets out the disbursement of the sale monies to both of the parties.
[32] Counsel for the respondent suggested to the applicant that she could live in a bachelor apartment and pay less rent. She testified that she needed a place large enough for her and the children.
[33] The respondent testified on his examination-in-chief with the assistance of an interpreter. He chose not to use an interpreter for his brief cross-examination.
[34] The respondent started work in the auto body industry in 1982 and remained with the same employer for 25 years.
[35] Shortly after the date of separation, as noted, the respondent was diagnosed with prostate cancer and had surgery in July 2012. He returned to work in the fall of 2012 and continued working until July 2014.
[36] The respondent testified that his health deteriorated after returning to work. He suffered from headaches, panic/anxiety attacks and testified that he could not concentrate.
[37] Physically, the respondent testified that he felt weak after his surgery and his job involved heavy lifting.
[38] In July 2014, the respondent attended a doctor’s appointment wherein he provided his doctor, Dr. Garcia, with a note indicating he was contemplating suicide because he had no reason to live. Apparently, he wrote the note while in the doctor’s waiting room. His doctor had him admitted to the hospital for 72 hours for a psychiatric assessment.
[39] The respondent remains on medications which include anti-anxiety medication and testified that the medication makes him sleepy, causes headaches, diarrhea, and dry throat. He has no appetite and has a fear of becoming incontinent.
[40] The respondent testified that he feels abandoned as a result of his family issues. He had no family support in regards to his surgery and recovery. He does not see his children and believes the applicant has negatively influenced the children in that regard.
[41] The respondent testified that he and the applicant argued with respect to the children. The respondent thought the children should be more independent and work part-time to cover some of their expenses. The applicant did not share that opinion.
[42] The respondent testified that the family had a large debt and that he could not cope with the stress associated with the debt.
[43] His doctor has provided him with notes that he is unable to work and it is unknown as to when he will be able to return to work.
[44] The respondent is also under the care of Dr. Pilowsky, a psychiatrist, who prescribes the anti-depressant, anti-anxiety medication and who has diagnosed the respondent as suffering from a major depressive disorder. The prognosis is indefinite. His report can be found in Exhibit 1.
[45] The respondent sees Dr. Pilowsky twice a month. He also attends physiotherapy each month in regard to some pelvic floor issues.
[46] The respondent testified that he cannot return to work and it is unlikely he ever will. He testified that he is incapable of working. He is unable to cope and is always depressed. He continues to follow his doctors’ instructions.
[47] In 2013, the respondent earned $78,000.00. In 2014, the respondent’s income was a combination of six months employment income and six months of employment insurance benefits and totalled approximately $45,000.00.
[48] The respondent has qualified for long term disability benefits from Great West Life (GWL) and, commencing in January 2015, will receive $3,475.00 per month ($41,700.00 per annum). The doctor’s note to GWL, dated October 21, 2014, states that the respondent will return to work when he feels more stable and able to concentrate.
[49] In his financial statement, sworn December 17, 2014, the respondent claims a debt to “Grace” of $27,300.00 which was incurred post-bankruptcy. He testified that was used to pay his lawyers and doctors and to assist him to obtain an apartment. It was also used to pay the costs awarded against him in this litigation.
[50] In responding to my questions, the respondent admitted that the garnishment was part of the reason he declared bankruptcy. It was the “last straw”. Of course, the bankruptcy did not relieve the respondent from the support order and the arrears that accrued under it.
[51] The respondent admitted he never voluntarily made any support payments pursuant to the order. He testified that he gave the applicant $500.00 on one occasion.
ARGUMENT
[52] The applicant submitted that her financial circumstances are desperate. She denies abandoning the respondent and submitted that she and the children were pushed out of the house.
[53] On her own behalf, the applicant asks the court for what is just and fair. While she believes the respondent is working on a cash basis, she did not offer any proof in that regard.
[54] Counsel for the respondent submits that the applicant operates her own cleaning company and submits that an income of at least $40,000.00 should be imputed to the applicant. At the very least, it is submitted that the applicant admits to earning $30,000.00.
[55] Counsel for the respondent submits that her client is unable to work for physical and mental reasons and that his return to work is uncertain.
ANALYSIS
[56] At the time of separation and historically, the respondent earned significantly more income than did the applicant. The applicant was financially dependent on the respondent. The marriage had lasted for 22 years and, in my opinion, the applicant was, at the time of separation, entitled to spousal support. In this regard, I am cognizant of section 15.2(4) of the Divorce Act, RSC 1985, c. 3 (2nd Supp).
[57] The applicant worked hard throughout the marriage as an office/home cleaner and continues to do so. She has never earned an annual income equal or more than the income attributed to the respondent.
[58] The timing of the respondent’s bankruptcy and his termination of work in the summer of 2014 does raise suspicions. As noted, the bankruptcy occurred when the respondent’s wages were garnished. It could be argued that he stopped work when he realized his bankruptcy did not relieve him of his support obligations as set out in the interim order of Baltman J., dated September 11, 2013.
[59] However, I am satisfied, on the undisputed medical evidence presented and the fact that the respondent has qualified for long term disability benefits that the respondent has mental and physical health issues and is currently unable to work. I am not convinced, however, that he can never return to work.
[60] The respondent has a current income of $41,700.00. I reject the argument that a comparable income should be attributed to the applicant. For spousal support purposes, I believe that the applicant has an annual income of between $20,000.00 and $30,000.00 and I will attribute an income of $30,000.00 to the applicant. It is likely that the applicant is paid in cash for a number of her house cleaning jobs. Further, it seems reasonable to me that the applicant could require her children, especially her son, to contribute monies to the household expenses on a regular basis.
[61] Having regard to section 15.2(6) of the Divorce Act, I find that the applicant suffered and continues to suffer an economic disadvantage arising out of the marriage and that spousal support is required to relieve the economic hardship resulting from the breakdown of the marriage. From the date of the separation until now the applicant’s earnings were significantly less than those of the respondent.
[62] Given the ages of the parties and the length of the marriage, the parties should experience comparable standards of living. As noted above, the respondent has an obligation to pay spousal support and has, to varying degrees since separation, the financial ability to do so. This obligation will continue indefinitely.
[63] In Exhibit 1, the respondent’s exhibit book, Tab 9 and in the respondent’s written closing arguments are a number of Spousal Support Advisory Guideline (SSAG) calculations. For 2013, the SSAG calculations on incomes of $78,089.00 and $30,000.00 attributed to the respondent and the applicant respectively suggest a midrange of support of $1,473.00 per month and I will order for spousal support at that level, commencing January 1, 2013.
[64] The SSAG calculations for the year 2014 use an income of $47,917.00 for the respondent, which, as noted, are made up of employment income for approximately one half of the year and employment insurance benefits income for the balance of the year.
[65] An income of $30,000.00 is attributed to the applicant. The SSAG midpoint for spousal support, payable by the respondent to the applicant for 2014, is $549.00 per month.
[66] For 2015, the SSAG calculations attribute an annual income to the respondent of $41,700.00 from long term disability benefits payments and an income of $34,600.00 attributed to the applicant, a number I do not accept. The midpoint for these calculations is $217.00 spousal support per month.
[67] Attributing an annual income of $30,000.00 to the applicant, my SSAG calculations, which I attach to this judgement, indicate midrange support to be $358.00 per month.
[68] In summary, I order, on a final basis:
Commencing January 1, 2013 to December 31, 2013, the respondent shall pay to the applicant spousal support in the amount of $1,473.00 per month.
Commencing January 1, 2014 to December 31, 2014, the respondent shall pay to the applicant spousal support in the amount of $549.00 per month.
Commencing January 1, 2015, the respondent shall pay to the applicant spousal support in the amount of $358.00 per month.
The order of Baltman J., dated September 13, 2013, is rescinded and replaced with the above.
The respondent shall advise the applicant, in writing, of any return to work or change in income, within ten days of his return to work or change in income.
On or before June 1 in each year, commencing June 1, 2015, the parties shall exchange income tax returns together with the notices of assessment.
A Support Deduction Order is to issue.
[69] In regards to costs, the parties may make written submissions to me, of no more than five pages in length, within 21 days of the release of this ruling.
Justice Thomas A. Bielby
Released: January 30, 2015
CITATION: Trucido and Trucido, 2015 ONSC 665
COURT FILE NO.: FS-12-76176-00
DATE: 20150130
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SANDRA TRUCIDO
Applicant
- and –
JOSE TRUCIDO
Respondent
REASONS FOR JUDGMENT
Justice Thomas A. Bielby
Released: January 30, 2015