PEMBROKE COURT FILE NO.: 14-D-566
DATE: 2015/11/02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Wayne George Daley
Applicant
– and –
Lezlie Jane Gowan (Daley)
Respondent
M. Peter Sammon, for the Applicant
Self-Represented
HEARD AT PEMBROKE: October 19, 20 and 21, 2015
REASONS FOR JUDGMENT
Madam Justice B. R. Warkentin
[1] This application began in May 2014 when the Applicant, Mr. Daley, commenced an application for an uncontested divorce based upon the parties’ separation since 1999.
[2] The Respondent, Ms. Daley, filed an answer in which she claimed spousal support, an equalization of the parties net family properties and alleged that the parties’ separation had not occurred until May 2014.
[3] Mr. Daley has disputed the claims by Ms. Daley and argued that if their separation was in 1999 as he has submitted, then Ms. Daley’s claims are statute barred. Alternatively, Mr. Daley has claimed that the parties equalized their net family properties in 1999 when they separated, that he provided spousal support and other financial assistance to Ms. Daley from 1999 until May 2014 and that no further money is owed to Ms. Daley by him.
Background of their Marriage
[4] The parties were married on May 17, 1990. This was a second marriage for them both. Mr. Daley was born in 1939 and Ms. Daley was born in 1949.
[5] Mr. Daley was employed by the federal government throughout his career. When he retired in 1996 at around age 57, he was a systems preparedness officer with the Department of National Defence (“DND”).
[6] After his retirement from the DND, Mr. Daley worked for the Corps of Commissionaires until 2002. He has been completely retired since 2002. Mr. Daley is currently 76 years of age.
[7] When the parties married, Ms. Daley was employed at the Toronto Dominion Bank. However, within six months of their marriage, Ms. Daley stopped working because of health issues. In 1991, after ongoing medical investigations and tests, Ms. Daley was diagnosed with fibromyalgia and chronic fatigue syndrome. Ms. Daley never returned to her employment.
[8] After exhausting her employment insurance and short term disability benefits, Ms. Daley received long term disability through the Canada Pension Plan. Ms. Daley continued to be in receipt of long term disability until 2012 when she was eligible to retire from the TD Bank and collect her employment pension. Throughout her period of disability, until her retirement, the TD Bank contributed to her pension. Ms. Daley is currently 66 years of age.
The Separation in 1999
[9] By 1999, Ms. Daley’s health had deteriorated significantly. The parties had been living in Edmonton, Albert but agreed to move back to Ontario to be closer to both their families. They settled on moving to Deep River, Ontario where Mr. Daley had lived as a child and where he had a sister and brother-in-law. They moved into their home near Deep River in the late summer of 1999.
[10] In the fall of 1999, Ms. Daley informed Mr. Daley that due to her deteriorating health, she was unable to continue to reside with him.
[11] The parties together agreed to commence living in separate homes and to that end, Ms. Daley moved out of the matrimonial home near Deep River and into a condominium in the Ottawa/Gloucester area in November 1999.
[12] It was Ms. Daley’s evidence that she was forced to live separate and apart from Mr. Daley because living with him was detrimental to her health and she had to take the necessary steps to protect herself. She stated that she could not physically live the lifestyle that would have been necessary had they remained living in the same home. Ms. Daley also testified that it was never her intention to “legally separate”.
[13] Mr. Daley testified that he did not want Ms. Daley to leave the matrimonial home; nonetheless, he understood that her health was negatively affected by stress and that it was stressful for Ms. Daley to live together in the same home with him. Mr. Daley claimed that it was his hope that by living separate and apart, Ms. Daley’s health would stabilize and they would be able to resume cohabitation. He indicated he had held out hope for some time, and was disappointed when they did not resume cohabitation.
[14] In November 1999, the parties physically separated when Ms. Daley moved to the Gloucester area into a condo. The matrimonial home in Deep River was placed on the market in the spring of 2000 and sold shortly thereafter.
[15] In November 1999, the parties’ assets and debts, to the best of their recollection included:
a. The matrimonial home in Deep River worth $165,000.00;
b. an RRSP in the name of Mr. Daley in the amount of approximately $65,000.00 that was invested in a self-directed mortgage on the matrimonial home;
c. Mr. Daley’s pension from his employment that was in pay;
d. Ms. Daley’s pension from her employment that was not yet in pay;
e. A Motor Home/RV;
f. An car of unknown value;
g. Other modest bank/investment accounts that included an account in which Mr. Daley had deposited approximately $19,500.00 of an inheritance from his mother’s estate; a personal account in which Mr. Daley had about $8,500.00 and a personal account of Ms. Daley in which she had approximately $4,500.00.
h. A first mortgage on the matrimonial home that consisted of the $65,000.00 self-directed RRSP set out above together with additional financing totalling approximately $101,000.00;
i. A secured line of credit with a balance of approximately $55,000 outstanding, that had been increased in the fall of 1999 from $30,000 in order to provide approximately 17,000.00 to Ms. Daley for the purchase of her Ottawa condo; and
j. A small credit card debt in Ms. Daley’s name in the amount of approximately $2,400.00.
[16] Both parties agreed that Ms. Daley was primarily responsible for managing the family’s finances during the period after they were married in 1990 until 1999. Mr. Daley acknowledged that Ms. Daley had superior financial acumen because of her years working in banking.
[17] The RRSP was in Mr. Daley’s name and from the evidence presented at trial, was created in 1996, around the time that Mr. Daley retired from the DND, with severance funds he received for unused sick leave and holiday pay. In June of 1999 there was approximately $42,600.00 in the RRSP.
[18] When the parties moved from Alberta to Deep River they contributed the net proceeds of sale of the matrimonial home in Alberta of about $22,000.00 to the RRSP, which provided the $65,000.00 in funds for the self-directed first mortgage on the Deep River home.
[19] When Ms. Daley moved out of the matrimonial home in November 1999, the parties took steps to separate all of their personal finances as follows:
a. The motor home was sold and the best evidence available at trial was that part of the proceeds was used to purchase a car for Ms. Daley and part of the proceeds was provided to Mr. Daley in cash;
b. The contents of the matrimonial home and the motor home were divided to their mutual satisfaction;
c. Ms. Daley used $51,000.00 of the family assets for the down payment on her home in Gloucester. The best evidence at trial regarding this down payment is that it was made up of $17,000 from the secured line of credit, $4,500 or so from Ms. Daley’s personal account and the balance of $30,000.00 came from Mr. Daley;
d. The matrimonial home was put on the market in the spring of 2000 and sold in the summer of 2000. From the proceeds of sale, the first mortgage of 101,000 (including the self-directed RRSP which was then $66,000.00) and the secured line of credit of $55,000.00 were paid out together with related closing fees and real estate commission. The balance of the proceeds of sale of approximately $50,000.00 was retained by Mr. Daley and used by him to purchase his own home in the fall of 2000.
e. Both parties retained their respective pensions and bank accounts/investments in their own names.
[20] After the sale of the matrimonial home, Mr. Daley purchased a home in Ottawa to be close to one of his adult children and to be closer to Ms. Daley. Mr. Daley stayed in the spare bedroom of Ms. Daley’s condo for between four and six weeks while waiting to close the purchase of his home. Ms. Daley assisted him with searching for a home. Ms. Daley had no involvement in the financial arrangements for its purchase.
[21] In the summer of 2001 Ms. Daley sold her condo in Gloucester and moved to Cornwall. She resided with Mr. Daley in his spare bedroom for approximately two months, prior to moving into her home in Cornwall because her sale of the Gloucester condo closed prior to her Cornwall home being available.
[22] Ms. Daley continues to reside in Cornwall, although she moved two more times. In total she has owned three homes since the parties’ physical separation in November 1999. She currently resides in a rental property. Each time she mortgaged or sold one of the homes she has owned since 1999 she made the following declarations:
“I am separated from my spouse and the property charged was not ordinarily occupied by us at the time of our separation as our family residence.” and
“The property transferred was not ordinarily occupied by me and my spouse, who is separated from me, as our family residence at the time of our separation.”
[23] Ms. Daley utilized the services of a lawyer for each of her purchases and sales of property.
[24] Mr. Daley has also moved three further times since purchasing the home in Ottawa. After residing in Ottawa for close to a year, at the suggestion of his brother, he moved to Brockville. Mr. Daley lived there for a short period of time, but found the travel for his work with the Corps of Commissionaires too difficult. Mr. Daley then retired fully and moved back to Deep River in 2002 or 2003. He lived there for approximately 7 years and then moved to Pembroke to be closer to his daughter and grandchildren. Mr. Daley has lived in Pembroke for close to 6 years.
Continuing Relationship Post 1999
[25] The parties remained on good terms from the time of their physical separation until May 2014. Examples of their interaction include:
a. They spoke by telephone every day. Mr. Daley initiated the calls and they would last from between two minutes to 45 minutes, depending on Ms. Daley’s health and mood;
b. Mr. Daley would visit Ms. Daley on occasion. It was his estimate that he visited her between two and six times a year. Sometimes these visits included overnight stays but more often they were shorter visits;
c. The parties exchanged birthday and Christmas cards/gifts and spent time together on major holidays such as Christmas (typically between Christmas and New Year’s, because they each spent the holiday with their respective children) and Easter;
d. Mr. Daley would, on occasion attend medical appointments with Ms. Daley; and
e. Neither party took steps to obtain either a separation agreement or a divorce.
[26] It was noteworthy that almost all of the contact between the parties was initiated by Mr. Daley. Ms. Daley never called Mr. Daley, unless it was to return his call that she had missed; she never visited him at any of his homes, except the home in Ottawa and on one occasion in Brockville; and never attended his medical appointments or visited Mr. Daley when he was ill. An example of this was in 2005 when Mr. Daley had heart problems and was hospitalized in intensive care in Deep River for two weeks. Ms. Daley did not telephone him or his family members to ascertain his wellbeing, nor did she visit him while he was in hospital or when he was released from the hospital.
[27] The parties did not take vacations together. Ms. Daley went on at least three significant vacations, once with her daughter, then a cruise with friends and another to Hawaii on her own. Ms. Daley regularly made day trips to the United States on her own or with friends and family members, but never with Mr. Daley. Ms. Daley did not accompany Mr. Daley on any of his travels.
[28] At her request when Ms. Daley was applying for financing on approximately three occasions in the early 2000’s, Mr. Daley wrote to the TD Bank to advise that he was supporting Ms. Daley financially and that they remained married, although living separately because of Ms. Daley’s illness.
[29] From 2000 until 2011, the parties filed their income tax returns as either “separated” or “single”. In 2011, Mr. Daley realized that the parties would benefit if Mr. Daley claimed the tax credit due to Ms. Daley’s disability and at his suggestion they refiled their tax returns from the time they had separated as “married”. Mr. Daley wrote to CRA advising that they were indeed living separately but that he was financially supporting Ms. Daley and they were still married to each other.
[30] They divided the subsequent tax refund that Mr. Daley received due to this refiling.
[31] Ms. Daley resumed filing her income tax returns as “separated” after she retired from the TD Bank in 2012 and was no longer in receipt of CPP disability payments as set out in her 2012 income tax return produced at trial.
[32] On one occasion, Mr. Daley asked Ms. Daley for assistance with balancing his self-directed RRSP, mortgage account and at other times consulted her regarding various financial matters.
[33] In her evidence, Ms. Daley described their relationship after 1999 as separated due to her health issues, but that they were still married and not “legally separated”. She claimed they provided emotional support to each other and considered themselves a couple.
[34] In his evidence, Mr. Daley agreed with Ms. Daley’s description of their separation and life between 1999 and 2014; however, he described it as a friendship, more like brother and sister; amiable. Prior to May 2014 Mr. Daley had not been interested in moving forward with a divorce and considered himself married to Ms. Daley, but separated from her.
Financial Assistance Provided by Mr. Daley to Ms. Daley
[35] After the parties’ physical separation in November 1999, Mr. Daley provided ongoing, regular financial assistance to Ms. Daley. The details of this financial assistance were set out in Tab 1 of Exhibit #2, filed in the trial.
[36] When Ms. Daley moved to Gloucester, Mr. Daley began by paying Ms. Daley’s car insurance premium. He continued to pay this premium until May 2014.
[37] Sometime in 2000, Mr. Daley began transferring additional money to Ms. Daley each month. By December 2007, the earliest date that bank records were available, Mr. Daley was paying in excess of $1,000.00 per month in financial assistance to Ms. Daley. By May 2014, this amount was more than $1,200.00 per month.
[38] Between December 2007 and May 2014, Mr. Daley provided Ms. Daley with the total amount of $107,662.63.
[39] In addition to the regular monthly payments for which there are not records between 2000 and 2007, Mr. Daley provided Ms. Daley with a number of lump sum payments totalling $43,339.45 in 2002 and 2003 from his line of credit.
[40] Mr. Daley paid all of this money in after tax dollars.
[41] Mr. Daley currently receives income from his pension and RIF (the RRSP was converted to a RIF) in the approximate amount of $78,000.00 per annum. Ms. Daley currently receives pension, CPP and OAS income of between $24,000.00 and $25,000.00 per annum.
May 2014
[42] In early May 2014, Mr. Daley advised Ms. Daley that he was meeting with a lawyer to update his Will. According to Ms. Daley, the discussion was about Mr. Daley making a “living will” to designate his daughter as his health care provider should something untoward occur. She claimed the discussion was also about her need for additional funds. Mr. Daley testified that the discussion was about him changing his Will and about what Ms. Daley’s wishes after her death.
[43] They agreed to meet to discuss these issues. Mr. Daley met Ms. Daley in Ottawa on Thursday, May 8, 2014 in the parking lot of her doctor. They sat in the car to discuss these and other issues prior to and after Ms. Daley’s medical appointment.
[44] The parties disagree about the content of their discussion at their meeting. Ms. Daley claims the discussion was only about Mr. Daley’s living will and her need for money as well as her health concerns. She also testified that, either in their telephone discussion in advance of their meeting or during their meeting she sought and obtained Mr. Daley’s permission to use his current Power of Attorney naming her as the Attorney, to withdraw funds from his account.
[45] Mr. Daley testified that he told Ms. Daley that he was making changes to his Will. He claimed that they not discuss Ms. Daley’s finances and that he never would have granted her permission to use his Power of Attorney to withdraw money from his account. Mr. Daley stated that he had never given her permission to use his Power of Attorney and if she did so it was without his authorization. It was his evidence that on other occasions when she suggested she use it, that he categorically denied her permission. He agreed that they did discuss Ms. Daley’s health concerns. He also testified that if she had told him she needed money, he probably would have made arrangements to provide her with the funds she wanted as he had always done in the past.
[46] On May 9, 2014, Ms. Daley attended the TD Bank in Cornwall and using Mr. Daley’s banking Power of Attorney, transferred approximately $20,000.00 from his chequing and savings accounts onto his line of credit and then had a bank draft issued in her name in the total amount of $22,000.00 which was the entire credit available on Mr. Daley’s line of credit.
[47] Ms. Daley used the funds to purchase a new car and to pay her daughter $7,500.00.
[48] Mr. Daley discovered the withdrawal on Monday, May 12, 2014. However, by then, Ms. Daley had contacted the police and informed them that Mr. Daley was harassing her and asked the police to contact Mr. Daley to inform him he was not to have any further contact with her.
[49] Mr. Daley had contacted Ms. Daley over the weekend of May 9 through 11, 2014 to ensure she had arrived home safely and was doing alright. This was his usual practice, as previously described. Ms. Daley neither answered his calls nor returned them when he left messages asking her to contact him, which was unusual and caused him significant concern. He ended up driving from Pembroke to Cornwall to see if she was in trouble. He was unable to locate her and returned to Pembroke.
[50] Mr. Daley was shocked when the police contacted him to advise his telephone calls were no longer welcome by Ms. Daley. At this point in time, he was unaware of her actions regarding the removal of funds from his accounts.
[51] This set of events ended the relationship between the parties. Within the next two weeks following the use of the Power of Attorney, both parties had obtained legal advice and these proceedings were commenced.
Summary of Claims of Ms. Daley
[52] Ms. Daley claims that it was the May 2014 events that triggered their “legal separation”. She takes the position, opposed by Mr. Daley, that the equalization of their net family properties should occur as at May 2014. She claims that she is in debt by $95,000.00, although did not provide any documentation to support these claims.
[53] Ms. Daley seeks ongoing spousal support in the amount of $1,850.00 per month commencing November 1, 2015 together with spousal support retroactive to May 2014 in the total amount of $23,400.00. She seeks that these amounts be secured by a life insurance policy on his life and that Mr. Daley maintain health and dental coverage on her through his federal government benefits.
[54] In addition, Ms. Daley has asked that Mr. Daley provide her with a letter that the money she withdrew from his line of credit in May 2014 was a gift and she is seeking prejudgment interest and costs.
[55] Both parties are seeking a divorce.
Analysis of the Evidence and the Law
[56] A divorce may be granted to parties who have been separated for at least one year. Section 8(3) of the Divorce Act sets out the manner in which courts and parties are to calculate the period of separation. This section reads:
8(3) For the purposes of paragraph (2)(a),
(a) spouses shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other; and
(b) a period during which spouses have lived separate and apart shall not be considered to have been interrupted or terminated
(i) by reason only that either spouse has become incapable of forming or having an intention to continue to live separate and apart or of continuing to live separate and apart of the spouse’s own volition, if it appears to the court that the separation would probably have continued if the spouse had not become so incapable, or
(ii) by reason only that the spouses have resumed cohabitation during a period of, or periods totalling, not more than ninety days with reconciliation as its primary purpose.
[57] Section 4(1) of the Family Law Act defines the “valuation date” as, among other things “the date the spouses separate and there is no reasonable prospect that they will resume cohabitation.” In this case, each party seeks to have the valuation date established as at the date they allege the separation occurred; either November 1999 or May 2014.
[58] In ascertaining when parties have separated the individual circumstances of each case must be considered. There is no single formula for establishing that a separation pursuant to the Divorce Act has occurred. Some couples separate and remain living in the same home for a period of time; others physically separate but remain good friends and maintain certain ties, both financial and emotional; still others live separate and apart due to factors beyond their control without the intention to live separate and apart as defined in the Divorce Act, for example if one spouse moves to another city or province for employment or to care for a sick relative and so on.
[59] Various factors have been considered by the court to assist in the determination of the date of separation. The indicia described in the case of Oswell v. Oswell (1990) 1990 6747 (ON SC), 28 R.F.L. (3d) 10 (O.S.C.) and affirmed on appeal, (1992), 1992 7741 (ON CA), 43 R.F.L. (3d) 180 (C.A.) continue to be considered and adopted by this and other courts when ascertaining when spouses, who remained together in their home have separated as defined in the Divorce Act.
[60] In the present case, the facts are somewhat different because the parties had in fact been living separate and apart for reasons Ms. Daley claims had nothing to do with a separation as defined by the Divorce Act. In spite of these differences, I find that the various indicia set out in the Oswell case are useful for making a determination of whether or not the parties had separated. These indicia taken from paragraph 6 of Oswell are:
(1) There must be a physical separation. Often this is indicated by the spouses occupying separate bedrooms. Just because a spouse remains in the same house for reasons of economic necessity does not mean that they are not living separate and apart;
(3) There must also be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium, or of repudiating the marital relationship;
(3) The absence of sexual relations is not conclusive but is a factor to be considered;
(4) Other matters to be considered are the discussion of family problems and communication between the spouses; presence or absence of joint social activities; the meal pattern; and
(5) Although the performance of household tasks is also a factor, help may be hired for these tasks and greater weight should be given to those matters which are peculiar to the husband and wife relationship outlined above.
[61] Other factors courts have considered include the intention of one or both parties to separate and whether or not the parties have separated their financial affairs, including the method in which they have filed income tax returns or other documentation. Chan v Chan [2013] O.J. No. 5710, paras 24, 27 and 28.
[62] If a person meets the test set out in the Divorce Act, as clarified by the indicia that provide evidence of a separation, they are separated. The term “legal separation” is not used in our jurisprudence; however, as this phrase was used by Ms. Daley, seems to mean a separation that has been reduced to writing in the form of a separation agreement or some other formality. There is no requirement in either the Divorce Act or the Family Law Act for there to be this type of formality in order to conclude that parties are separated or to determine the valuation date.
Conclusion re: Date of Separation
[63] Having considered the evidence before me in this trial, I find that the parties separated in November 1999 as claimed by Mr. Daley. While much of the evidence of the parties was similar regarding their affairs post 1999, where it differed, I preferred the evidence of Mr. Daley.
[64] I found that Ms. Daley had remarkable recollections of the parties’ financial affairs and detailed information about dates and events. However, when there were difficult questions put to her about contradictory evidence, she became vague and uncertain, particularly when the evidence favoured Mr. Daley’s position.
[65] Mr. Daley, by contrast was clear and consistent in his evidence. He did not hesitate to explain the circumstances of their separation in 1999 and his desire to resume cohabitation should Ms. Daley consent to such an arrangement. Mr. Daley agreed that he remained married to Ms. Daley and it was his view that as long as he was married to her, he had an obligation to her financially and emotionally.
[66] Both parties ought to be commended for the compassionate and caring way in which they managed their affairs after separation. Mr. Daley took it upon himself to continue to maintain concern for Ms. Daley’s health and financial circumstances and they remained involved in each other’s lives to a certain degree. I accept Mr. Daley’s characterization of their relationship between 1999 and May 2014 as that of good friends.
[67] In the circumstances of this case, it was Ms. Daley who had the intention to separate. She communicated that intention to Mr. Daley and upon doing so the parties divided their marital property in a fair and reasonable fashion between November 1999 and the summer of 2000. On cross examination, Ms. Daley agreed that she was familiar with the parties’ financial affairs when the various assets were divided in 1999 and played a role in that division of assets, albeit she left most of the legwork to Mr. Daley because of her health issues.
[68] Ms. Daley did not give Mr. Daley any reason to believe that she would resume cohabitation after November 1999. In fact, it was quite the opposite. Her focus was on herself and her health issues. She accepted Mr. Daley’s financial support as well as his regular interactions with her however she did not reciprocate to any significant extent.
[69] While Mr. Daley may have held out some hope that they might reunite, there was nothing communicated by Ms. Daley to him that would have led him to believe they were other than separated and living separate and apart as defined by the Divorce Act. Except for the financial assistance and support paid by Mr. Daley to Ms. Daley after they separated in 1999, they maintained completely separate financial affairs.
[70] They filed their income taxes as separated spouses and made declarations to that effect when selling or mortgaging property. The correspondence in which Mr. Daley advised the TD Bank and CRA that they remained married and he was financially supporting Ms. Daley were written truthfully, with the objective to ensure Ms. Daley qualified for financing and to obtain a tax benefit that they believed was available to them. I do not find that these letters or the refiling of income tax returns is sufficient evidence to support Ms. Daley’s position that the parties had not separated.
Equalization Payment and Spousal Support
[71] Ms. Daley is seeking ongoing spousal support retroactive to May 2014 and an equalization of the parties’ Net Family Properties.
[72] Ms. Daley brought a motion for temporary support earlier this year. In dismissing her motion, Justice James ordered that the withdrawal of the $22,000.00 from Mr. Daley’s accounts in May 2014 by Ms. Daley might be considered by the trial judge as a set off for all or a portion of spousal support that might still be owed by Mr. Daley on and after May 2014.
[73] The parties divided their assets without the benefit of legal advice in November 1999. It does not appear that they took into consideration the values their respective pensions or the self-directed RRSP when dividing their property.
[74] I agree with the position of counsel for Mr. Daley that any claim for an equalization payment, 15 years post separation would be statute barred. Nonetheless, I have reviewed the information before me regarding the division of property on and after 1999 to ascertain if that division was or was not equitable.
[75] From my review, I would not find there to be any money owed to Ms. Daley as part of an equalization payment. I accept that the parties divided their assets to their mutual satisfaction in November 1999 and in reviewing that information, to the extent that it was available at trial, I do not find that there was an underpayment by Mr. Daley to Ms. Daley. Even if Mr. Daley received a greater share of the parties’ Net Family Properties as at their valuation date in November 1999, that amount was not significant when discounts to his assets for tax liability and pre-marital accumulation of pension and other benefits is considered.
[76] Mr. Daley also provided additional lump sum amounts to Ms. Daley in the ensuing years well in excess of any modest shortfall she may have had by the manner in which the parties’ divided their property between November 1999 and the summer of 2000.
[77] The next issue I considered was the issue of spousal support. The parties were married for approximately nine years. Within their first year of marriage Ms. Daley became disabled and for most of their marriage was in receipt of some form of employment insurance or other benefit. From the time of their separation in November 1999 until May 2014, Mr. Daley provided Ms. Daley with financial assistance every month without obtaining a tax deduction for that financial support. In May 2014 he was providing her with approximately $1,200.00 per month. There was no dispute that he had been providing her with financial support from the time of their separation, however there were only records dating back to December 2007.
[78] Ms. Daley was in receipt of approximately $17,000.00 per annum in CPP Disability benefits until 2012 when she began to receive her employment pension.
[79] Since 2012 her income has increased to between $24,000.00 and $25,000.00 per annum through her employment pension as well as CPP and OAS benefits. Ms. Daley’s employment pension is not indexed, however the CPP and OAS benefits are, and therefore Ms. Daley will receive a modest increase in income each year.
[80] Mr. Daley was retired from his employment with the Federal Government at the date of separation in 1999. His pension income and income from his RIF is in the range of $78,000.00 per annum and has been in this range for a number of years.
[81] While the Spousal Support Advisory Guidelines (SSAG) were not in effect in 1999, I used them to assist in reviewing the quantum and duration of support for parties in a nine year marriage who were 60 years and 50 years, respectively at the time of separation where the recipient spouse is disabled.
[82] The SSAG calculations suggested that spousal support should be paid for a period of between 4.5 and 9 years post separation. The maximum support to be paid in this scenario would be in the range of $915.00 per month when the recipient’s income is $17,000.00 and approximately $800.00 per month when the recipient’s income is $24,500.00. I did not discount either party’s income for pension benefits that would have accumulated prior to their marriage. Had I done so, it would have lowered the quantum of spousal support because of the larger deductions to which Mr. Daley would have been entitled.
[83] These numbers are also based upon the payor receiving a tax deduction for the payment of spousal support, something that Mr. Daley did not receive.
[84] When reviewed in this context, the money paid by Mr. Daley to Ms. Daley as financial assistance between November 1999 and May 2014 greatly outweighs the amount he would have been expected to pay had the parties sought to have this issue resolved in 1999 or in the intervening years.
[85] The trial evidence also demonstrated that Ms. Daley sold the properties she owned after separation for more than she paid for them, thus increasing her capital with each sale. Ms. Daley claimed that she is currently in debt of $95,000.00 and in need of continued support, however she provided no evidence to support that claim. In fact, she used the funds removed from Mr. Daley’s account to purchase a new vehicle for cash with a trade in.
[86] In light of these circumstances, I am not prepared to order that Mr. Daley pay either retroactive or ongoing spousal support. Ms. Daley has been more than compensated for any support that would have been owed by Mr. Daley.
Were the Funds Removed using the Power of Attorney a Gift?
[87] Ms. Daley has asked for a finding that the funds she removed from Mr. Daley’s accounts be considered a gift to her from Mr. Daley.
[88] I have not been asked to make a finding regarding the use or misuse of the Power of Attorney because that is the subject of other litigation. Nonetheless, it is necessary to consider this event in order to determine whether or not the $22,000 taken from Mr. Daley’s line of credit in 2014 was intended as a gift.
[89] I accept Mr. Daley’s evidence that he was unaware that Ms. Daley was going to use his Power of Attorney to remove money from his bank accounts in May 2014. I also accept Mr. Daley’s evidence that he never would have provided her with permission to do so, nor that Ms. Daley’s need for additional financial assistance was a topic of their discussion during the meeting of May 8, 2014 or the days preceding that meeting.
[90] The evidence at trial demonstrated that Mr. Daley was always in control of any transfer of funds to Ms. Daley from November 1999 onward. Prior to May 2014 Ms. Daley never utilized Mr. Daley’s Power of Attorney to transfer funds to herself, although her evidence at trial was that she did use his Power of Attorney, apparently without his knowledge, to review the status of his bank accounts and debts at the TD Bank.
[91] Regarding whether or not the funds removed from Mr. Daley’s line of credit were a gift, I will first comment on the purpose of granting a Power of Attorney.
[92] A Power of Attorney is a legal document that grants the person appointed, the “Attorney”, to utilize the power granted in that document on behalf of the person who executed the “Power”.
[93] Being named an Attorney in a Power of Attorney is an important fiduciary responsibility; one that suggests a high level of trust. The person so named may be entitled to utilize that authority even when the grantor (in this case Mr. Daley) remains competent. However, that authority is granted solely for the purpose of benefiting the grantor (Mr. Daley). There was nothing in either of the Powers of Attorney executed by Mr. Daley that provided Ms. Daley the authority to benefit herself. To use them for that purpose without authority is a breach of the Attorney’s fiduciary obligation to the grantor.
[94] In this case there were two General Powers of Attorney in which Mr. Daley granted that authority to Ms. Daley. The first was one prepared by his lawyer and covered all of his assets, whereas the second was a Power of Attorney prepared by the TD Bank and was limited to his assets located in the TD Bank.
[95] In both Powers of Attorney, Mr. Daley granted Ms. Daley the power to manage his financial affairs to the extent the Power of Attorney provided. These two documents were both prepared prior to November 1999.
[96] Ms. Daley has suggested that as the named Attorney in these documents, she had legal authority to use them. In that she is correct. Mr. Daley had not revoked his Powers of Attorney and therefore the authority granted to Ms. Daley remained in place in 2014; however, there is nothing in those documents that provided her with the authority to use the Powers of Attorney for her own benefit.
[97] In addition, the evidence at trial does not support the claims by Ms. Daley that Mr. Daley had provided her with authority to use his Power of Attorney to utilize his accounts for her own use.
[98] Based upon the evidence I have accepted regarding the use of the Power of Attorney, I do not find that the funds removed by Ms. Daley from Mr. Daley’s accounts were a gift.
Summary and Costs
[99] In summary, because I have rejected all of Ms. Daley’s claims, Mr. Daley is therefore entitled to costs of this proceeding. Mr. Daley shall have 20 days from the date of this judgment to submit his costs outline together with any relevant offers to settle. If Ms. Daley wishes to submit a reply to Mr. Daley’s costs submissions she shall have 10 days after Mr. Daley has served his costs submissions on her to do so.
[100] The submissions on costs shall be in writing and shall not exceed 4 pages. This does not include a Bill of Costs or other supporting documentation.
Divorce
[101] The parties both sought a divorce. Based upon the evidence before me at trial, I am satisfied that all the requirements for obtaining a divorce have been met and a Divorce Order shall issue.
Madam Justice B. R. Warkentin
Released: November 2, 2015
PEMBROKE COURT FILE NO.: 14-D-566
DATE: 2015/11/02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Wayne George Daley
Applicant
– and –
Lezlie Jane Gowan (Daley)
Respondent
REASONS FOR JUDGMENT
Madam Justice B. R. Warkentin
Released: November 2, 2015