CITATION: C.C. v. P.C., 2015 ONSC 7530

COURT FILE NO.: 08-FD-335544

DATE: 20151202

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

C.C.

Applicant

• and -

P.C.

Respondent

Oudit N. Rai, for the Applicant

Theodore Nemetz, for the Respondent

HEARD: October 21, 22, and 23, 2015

STEVENSON J.

REASONS FOR DECISION

Introduction

[1] The applicant, C.C. ("Mrs. C.C."), seeks non-time limited spousal support from the respondent, P.C. (“Mr. P.C.”), in the amount of $3,000 per month, commencing January 1, 2009. She is prepared to provide Mr. P.C. with credit for spousal support payments made to her in the amount of $1,500 per month made pursuant to the order of Hoilett J., dated January 31, 2008. Mrs. C.C. also seeks $75,000 in lump sum spousal support to be paid monthly in the amount of $1,000. She seeks lump sum spousal support for what she states is compensation for Mr. P.C. being able to retain her portion of Mr. P.C.'s pension that she contends she lost as a result of Mr. P.C.'s 2008 bankruptcy. Mrs. C.C. further seeks that Mr. P.C. designate her as a beneficiary of his pension to the extent of any unpaid amount outstanding from the $75,000 lump sum spousal support. She also seeks costs.

[2] Mr. P.C. seeks an order that Mrs. C.C.'s claim for spousal support be dismissed as he contends that Mrs. C.C. is not entitled to further spousal support. In the alternative, his position is that if there is any entitlement to further spousal support, it should be based upon his gross yearly income derived from his Old Age Security Pension (“OAS”) of $6,676, his Canada Pension Plan retirement benefit (“CPP”) of $12,091 and his pension income of $51,533 all of which total $70,300 gross per year. Mr. P.C. further seeks that a minimum wage income be imputed to Mrs. C.C. of $21,000 gross per year and that spousal support be payable for not more than two years given the payments already made by him since 2008. He is not prepared to pay any additional spousal support prior to the date of trial as he contends that he solely supported the children, he has received no child support payments from Mrs. C.C. since the parties’ separation in 2005, and that Mrs. C.C. has taken no steps in this proceeding to pursue spousal support since 2008. Mr. P.C. also seeks costs.

Background

[3] The parties were married on July 11, 1990. They separated in September 2005 after approximately 15 years of marriage and were subsequently divorced on June 25, 2013. Mrs. C.C. is 57 years of age while Mr. P.C. is 73 years of age. At the time of separation Mrs. C.C. was 47 years of age and Mr. P.C. was 63 years of age. During the course of their marriage, the parties had three children, namely: C.P.C., born […], 1993; J.R.C., born […], 1995; and L.C., born […], 1997. The children are now 22, 20 and 18 years of age.

[4] When the parties were first married, Mrs. C.C. was employed as a nanny and Mr. P.C. was employed by the Toronto Transit Commission (the “TTC”) where he continues to be employed. Mr. P.C. is now also in receipt of pension income from the TTC. Mr. P.C.'s current employment income from the TTC is approximately $72,116 gross per year and he also receives gross yearly income from OAS of $6,676, CPP of $12,091 and pension income from the TTC of $51,533 for a total gross annual income of $142,416. Mrs. C.C. is presently unemployed. She receives $1,500 per month in spousal support from Mr. P.C. as indicated, pursuant to the interim order of Hoilett J. dated January 31, 2008. At the time of the order, Mr. P.C. was earning approximately $70,000 gross from his employment at the TTC although Hoilett J. indicated that it was most likely higher.

[5] At the time of separation in 2005, Mrs. C.C. went to reside with her boyfriend with whom she had developed a relationship during her marriage with Mr. P.C.. Mrs. C.C. resided with her boyfriend from the date of separation until approximately August of 2007 when she ceased residing with him due to an assault inflicted upon her resulting in several criminal charges against her boyfriend. During the time that Mrs. C.C. resided with her boyfriend, the children continued to reside with Mr. P.C.. Mrs. C.C. contends that she visited the matrimonial home frequently throughout the week in order to assist with the children by cooking and cleaning for them and taking care of them.

[6] Mrs. C.C. asserts that she had a 15-year traditional marriage with Mr. P.C. wherein she was primarily responsible for caring for the children, cooking, cleaning and maintaining the matrimonial home, as well as working in the family's janitorial business. Both parties acknowledge that Mrs. C.C. was employed as a personal support worker at a nursing home during the latter years of the marriage. Mrs. C.C. worked at the nursing home from approximately 2004 to 2007 while also working in the family's janitorial business in the evenings and on weekends.

[7] Mrs. C.C. suffered injuries as a result of the assault inflicted upon her by her boyfriend and as a result of an accident in a TTC bus in 2008. She contends that injuries to her back and neck significantly affect her ability to work at her previous employment as a personal support worker. Mrs. C.C. also suffers from significant hearing loss and other medical conditions.

[8] Mr. P.C. takes the position that Mrs. C.C. is not entitled to any further spousal support. He states that Mrs. C.C. currently resides with her present boyfriend and has been residing with him for the last two years. He also states that Mrs. C.C. has not made diligent efforts to secure employment and income should be imputed to her if any entitlement to spousal support is found. Mr. P.C. contends that he has been solely financially responsible for the children and received no child support from Mrs. C.C. from the date of separation to current.

[9] Mr. P.C. also indicates that he will soon be retiring from his employment at the TTC given his age and current state of health. He maintains that he only continued to work due to his responsibility for providing for the three children. He acknowledges that the two eldest children are now working and that the youngest child, L.C., is attending high school but residing with Mr. P.C.'s friend. He indicates that he supports J.R.C. who still resides with him. Mr. P.C. asserts that he has memory loss that is affecting his employment and he requires the use of a cane to assist him in walking.

[10] Both parties declared bankruptcy in 2008. Mr. P.C.'s pension with the TTC was exempt from the bankruptcy proceedings. Mrs. C.C. takes the position that Mr. P.C. received a significant windfall in that he was allowed to retain her one-half of the pension value accrued during the marriage as a result of the bankruptcy. She seeks compensation through the payment of lump sum spousal support in the amount of $75,000 (which she contends is one-half of the value of the pension accrued during the marriage). She is content to have this amount paid to her monthly in the amount of $1,000.

[11] It is Mr. P.C.'s position that Mrs. C.C. has no entitlement to a portion of his pension given his bankruptcy. He contends that there was no equalization of net family property as of the valuation date. He maintains that to focus solely on the pension would be unjust.

Issues

[12] The issues for determination are as follows:

(1) Is Mrs. C… entitled to spousal support? If so, should income be imputed to Mrs. C.C. and what is the appropriate income to use for Mr. P.C. to determine spousal support? What is the appropriate quantum and duration of spousal support and when should spousal support payments commence?

(2) Should lump sum spousal support be paid by Mr. P.C. to Mrs. C.C. as compensation for Mrs. C.C.'s entitlement to one-half of the value of Mr. P.C.'s pension at the valuation date?

(3) If Mrs. C.C. is entitled to a lump sum payment of spousal support, should an order be made requiring Mr. P.C. to designate Mrs. C.C. as a beneficiary of his pension to the extent of any unpaid amount outstanding with respect to the lump sum payment of spousal support?

Issue #1

Is Mrs. C.C. entitled to spousal support? If so, should income be imputed to Mrs. C.C. and what is the appropriate income to use for Mr. P.C. to determine spousal support? What is the appropriate quantum and duration of spousal support and when should spousal support payments commence?

Is Mrs. C.C. entitled to spousal support?

[13] Section 15.2 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) governs spousal support applications. Section 15.2(4) sets out that the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including the length of time the spouses cohabited; the functions performed by each spouse during cohabitation; and any order, agreement or arrangement relating to support of either spouse. The objectives of the spousal support order are set out in section 15.2(6) as follows:

(6) An order made under subsection (1) or an interim order under subsection (2) 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;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(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 spouse within a reasonable period of time.

[14] In the Supreme Court of Canada case of Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813 at para. 78, the Court held that all four of the objectives in ss. 15.2(6) of the Divorce Act must be taken into account when spousal support is claimed or an order for spousal support is sought to be varied. No objective is paramount. The fact that one of the objectives has been attained does not necessarily end the analysis. The Supreme Court of Canada reaffirmed the obligation of the court to consider all four objectives in Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420. The Court in Bracklow also described three conceptual bases for support at para. 37 of the decision, those being compensatory, contractual and non-compensatory.

[15] With the advent of the Spousal Support Advisory Guidelines (Ottawa: Department of Justice, 2008), (the “SSAGs”), the SSAGs have been used by the courts as a tool to assist in the determination of issues of quantum and duration of spousal support.

[16] As indicated, Mrs. C.C. seeks periodic spousal support in the amount of $3,000 per month. She testified that she came to Canada in December of 1989 and at the time of the parties’ marriage she was a nanny/housekeeper. After marriage, Mrs. C.C. worked part-time as a nanny and was also studying part-time to become a healthcare aid. Her son C.P.C. was born in […], 1993, J.R.C. in February of 1995, followed by L.C. in July of 1997. Mrs. C.C. indicated that during the marriage she was the primary caregiver of the children. She maintains that Mr. P.C. was the primary income earner for the family, continuing to work at the TTC.

[17] Mrs. C.C. testified that in 2003 she continued with her studies in order to become a personal support worker. In 2004 she obtained employment at a nursing home where she worked until approximately August of 2007. She indicated that from 1994 to approximately 2005 she also worked at the parties’ janitorial business. She testified that she took on greater responsibility for managing and hiring staff at this family business and often worked if there were no workers available. Her duties included vacuuming, mopping and cleaning bathrooms and other areas of the buildings. She stated that she worked full time/part time at the nursing home and often cleaned for the janitorial business in the middle of the night. Her evidence is that at the date of separation she was extremely exhausted and could not do all of these tasks anymore along with caring for the children and maintaining the household as her health was being affected.

[18] Despite these other responsibilities, Mrs. C.C. testified that she still assumed the primary caregiving role of the children to enable Mr. P.C. to continue to work without missing any time from work. She acknowledged that Mr. P.C. would assist with the children when he was home. She testified that sometimes there was a babysitter, but most of the time she continued to care for the children. She maintains that she was responsible for the cooking and cleaning in the home along with taking care of the children. She indicated that she continued to look after the children even after the date of separation when the children were residing with Mr. P.C.. Mrs. C.C. testified that she would attend at the matrimonial home on a daily basis in order to cook and clean and look after the children. She indicated that the matrimonial home was always dirty, there were many cats and she wanted to ensure that the home was clean.

[19] Mrs. C.C.’s evidence is that she was assaulted by her boyfriend with whom she resided after the date of separation until approximately August 2007. She stated that she was hospitalized as a result of the assault; she suffered much trauma and had significant injuries. She further indicated that as a result of a TTC bus accident in 2008, she suffered injuries to her neck, head and back. She maintains that as a result of these injuries, she was unable to retain her employment as a personal support worker and has been unsuccessful in finding employment since.

[20] Mr. P.C.’s position is that Mrs. C.C. is not entitled to any further spousal support. In his closing submissions, counsel for Mr. P.C. argued that when Mrs. C.C. left the marriage she was in a much better position than when she came into the marriage. He contends that at the date of marriage Mrs. C.C. was a nanny, although he acknowledges that there is no evidence as to what income she was earning. Mr. P.C. submits that he was a TTC collector and remains in the same position today. He further contends that Mrs. C.C. was able to obtain training as a personal support worker during the marriage and there is no basis for any compensatory support. He contends that there is no loss of economic opportunity sustained as a consequence of raising the children.

[21] Counsel for Mr. P.C. acknowledges that in 2004 Mrs. C.C. obtained employment in a nursing home as a personal support worker. He further acknowledges that this was the first and only time that Mrs. C.C. was working outside of the home in any significant capacity (other than for the family janitorial business) during the marriage. Mr. P.C. accepts that Mrs. C.C. was assaulted in August of 2007 by her then boyfriend. In fact, Mr. P.C. testified that he took Mrs. C.C. to the hospital after the incident. Counsel argues that Mrs. C.C.’s Record of Employment that was entered as evidence supports that the assault coincided with the end of Mrs. C.C.’s employment. Mr. P.C. acknowledges that Mrs. C.C. has not worked since 2007, but he contends that this was not an economic hardship arising from the marriage but rather an economic hardship arising out of the choices that Mrs. C.C. made. He indicates that this is further supported by the evidence of Dr. Fashho, who is Mrs. C.C.’s family physician. Counsel for Mr. P.C. asserts that Dr. Fashho testified that the bulk of Mrs. C.C.’s health concerns emanated from these two events, being the assault, which was further aggravated by the motor vehicle accident.

[22] Mr. P.C. indicates that Mrs. C.C. left the children in his care when she left the marriage to reside with her boyfriend. Eventually the Children's Aid Society became involved with the parties and the children were removed from the parties’ care. The children were ultimately returned to Mr. P.C. and Mrs. C.C. conceded custody. Mr. P.C. testified that he continued to look after the children without any financial assistance from Mrs. C.C. from the date of separation to current. Further, Mr. P.C. submits that he has paid spousal support since 2008 for a total of approximately 8 years and there is no further entitlement to spousal support. He also contends that Mrs. C.C. is capable of securing some form of employment and has been capable for some time.

Discussion

[23] As indicated, there are three conceptual bases for entitlement to spousal support. These are on the basis of need (non-compensatory), compensatory and contractual. Contractual is not relevant here.

[24] As stated by Lauwers J.A. in the Ontario Court of Appeal decision of Gray v. Gray 2014 ONCA 659 at para. 27 when speaking of need:

One of the objectives of the Divorce Act is to relieve economic hardship. Need is not measured solely to ensure a subsistence existence, but rather should be assessed through the lens of viewing marriage as an economic partnership. As stated by this court in Marinangeli v. Marinangeli (2003), 2003 CanLII 27673 (ON CA), 66 O.R. (3d) 40 at para. 74, in determining need, courts ought to be guided in part by the principle that the spouse receiving support is entitled to maintain the standard of living to which she was accustomed at the time cohabitation ceased. The analysis must consider the recipient’s ability to support herself, in light of her income and reasonable expenses.

[25] As set out in Gray, supra, at para. 38, the purpose of compensatory spousal support is “…to share the economic advantages and disadvantages that accrued because of the marriage and its subsequent breakdown.” As explained in Moge, supra, at para. 70, the principle underlying compensatory support is, in part, that a spouse who forgoes educational opportunities and opportunities for career advancement in order to care for children and maintain the household, may advance the earning potential of the other spouse and enable him or her to pursue their economic goals.

[26] Mr. P.C. argues that there is no further entitlement to spousal support on either a needs or compensatory basis. Mr. P.C. submits that Mrs. C.C.’s need is not related to the marriage and, in any event, he has paid spousal support for a significant period of time. Mr. P.C. acknowledges that Mrs. C.C. suffered injuries as a result of the assault inflicted upon her and her motor vehicle accident. Counsel for Mr. P.C. indicated in his closing submissions that Mr. P.C. concedes that Mrs. C.C. is unable to work as a personal support worker. However, he argues that most of Mrs. C.C.'s physical limitations arise after the marital breakup and she has not suffered economic hardship as a result of the marriage or its breakdown. Mr. P.C.'s position is that Mrs. C.C. was employed as a personal support worker at the time of separation and would be able to support herself if not for the assault and the motor vehicle accident.

[27] In a recent matter before Heeney R.S.J., (Schaldach v. Schaldach, 2015 ONSC 1574), the wife had ailments during the marriage but approximately 7 months after the parties’ divorce, the wife was involved in a serious car accident and sustained injuries. Heeney J. rejected the husband's argument that the wife's present need was not related to the marriage. At paragraph 51, Heeney J. discusses the “causal connection” argument of the payor husband and indicates that the approach is no longer appropriate in determining the issue of spousal support: “The Husband submits that the Wife would be self-supporting but for the 2001 car accident. Thus, he argues, it is not the marriage that gives rise to her present need for support but rather the accident. This submission resurrects the ‘causal connection’ approach that was soundly rejected by the Supreme Court of Canada in Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813….” Similarly, that approach must be rejected here.

[28] I find that Mrs. C.C. is entitled to spousal support on a both a needs and compensatory basis. Mrs. C.C. came to Canada in approximately December of 1989. The parties met and were subsequently married in 1991. Shortly thereafter, the parties’ first child, C.P.C., was born in […], 1993. During the marriage the parties had three children who were born in close proximity to one another with the second child, J.R.C., born in 1995 followed by L.C. in 1997. I accept Mrs. C.C.’s evidence that she was primarily responsible for the care of the children and that she was responsible for the cooking, cleaning and other household responsibilities during the marriage. Mrs. C.C.’s assumption of the responsibility for maintaining the household as well as taking care of the children afforded Mr. P.C. with the opportunity to continue on with his employment with the TTC relatively unaffected.

[29] Mrs. C.C.'s responsibilities with the children and for maintaining the household also prohibited her from working full time in any other capacity. I accept Mrs. C.C.'s evidence that other than the family janitorial business, Mrs. C.C. did not take on any significant outside employment until 2004 when the youngest child was approximately 7 years of age. This was one year before the date of separation and was achieved as a result of Mrs. C.C. obtaining training so that she could become a personal support worker while continuing to primarily care for the children and the household.

[30] Mrs. C.C. began to work in the family janitorial business shortly after the eldest child, C.P.C., was born in […], 1993. The parties both testified that they took in international students during the marriage and for a period post-separation. Mrs. C.C.’s evidence was that she was responsible for looking after the students by cooking and cleaning for them and doing their laundry along with the remainder of the duties for her own family.

[31] Additionally, the parties were married for approximately 15 years. The primary caregiving role taken on by Mrs. C.C. with respect to the children did cause her to suffer an economic disadvantage as a result of the marriage. She is in need of support and has suffered a hardship as a result of the marriage breakdown.

[32] It is to Mrs. C.C.’s credit that she was able to take on many roles during the marriage for the benefit of the family, most without remuneration. The income that Mrs. C.C. earned in 2005 at the date of separation as a personal support worker was not comparable to the income earned by Mr. P.C.. While she was able to obtain some training during the marriage, as of the date of separation she was not earning a significant income and her primary caregiving role had prevented her from entering the workforce on a full-time basis previously. There would always be a disparity in the parties’ incomes and a struggle for Mrs. C.C. to achieve self-sufficiency given the roles assumed during the marriage.

[33] Mrs. C.C. provided a very modest budget and none of her expenses as set out in her sworn Financial Statement are extravagant or excessive. Even with her modest budget, Mrs. C.C. shows a need for spousal support. Mrs. C.C. was not cross-examined on her budget and it was not challenged by Mr. P.C. as being unreasonable. In fact, Mr. P.C. testified that he has loaned monies to Mrs. C.C. in the past for courses, car insurance (trading it off for Mrs. C.C.’s agreement to clean his premises) and other needs, and he does not expect to be paid back. He indicated that Mrs. C.C. is unable to pay him back which also suggests that he recognizes her need for support.

Should income be imputed to Mrs. C.C. and what is the appropriate income to use for Mr. P.C. to determine spousal support?

[34] Mrs. C.C. provided a T4A statement of pension, retirement, annuity, and other income for the calendar year 2004 which states that she earned income of $24,000 gross. Mrs. C.C. testified that this was income attributed to her by Mr. P.C. and the accountant with respect to the janitorial business for the calendar year 2004. She testified that she did not receive this income. Mr. P.C.'s evidence was that any monies earned through the janitorial business were deposited into a joint account, shared by the parties and spent on family expenses. Attached to Mrs. C.C.'s sworn Financial Statement of November 22, 2007, contained within the Trial Record, is a T4 statement from her employment in 2004 at the nursing home showing a gross employment income of $9,124. She also includes her T4 statement from the nursing home for 2005 which shows a gross employment income of $26,072. A T4 statement for 2006 is also included from the nursing home showing a gross annual income of $25,536. It was acknowledged by Mr. P.C. that Mrs. C.C. cashed in her RRSP to use towards the purchase of the family home in approximately 1999. As a result, the sum of $1,131.23 has been added to Mrs. C.C.’s income for tax purposes each year since that time and continues to be added on to Mrs. C.C.’s income.

[35] Mrs. C.C.’s Income Tax Returns for 2007 through to 2014 indicate a line 150 income as follows:

Year	Line 150 Income
2007	$33,536
2008	$ 1,292
2009	$19,131
2010	$19,279
2011	$19,131
2012	$24,933
2013	$20,691
2014	$26,573

[36] There is no dispute that the majority of Mrs. C.C.’s income from 2009 through to 2014 came from spousal support payments of $1,500 per month from Mr. P.C.. There is also no dispute that Mrs. C.C. has had minimal employment and nominal income from employment from 2008 to current.

[37] Mrs. C.C. is currently unemployed. She testified that she has made attempts to find employment and that Mr. P.C. and his friend, Bruce, have assisted her in finding a job. Both parties confirmed that Mr. P.C. drove her to drop off resumes in order to assist her in finding employment. Mrs. C.C. testified that she has gone for a couple of interviews but has been unsuccessful in obtaining employment. She indicated that despite her dropping off resumes and pursuing employment opportunities, no one ever calls her back. She testified that she feels inferior at times due to her significant hearing loss ‑ a loss which was corroborated by Dr. Fashho. She stated that she has struggled with depression, but has not been able to take medication. Dr. Fashho testified that Mrs. C.C. had not been specifically treated for depression with anti-depressants that he could recall. He did indicate that Mrs. C.C. has experienced anxiety, stress and depression.

[38] As indicated, Mrs. C.C. testified that she was unable to maintain her job as a personal support worker and that she left her employment with the nursing home in 2007 due to the significant injuries inflicted upon her and the trauma she sustained after the assault by her boyfriend. Her injuries were further exacerbated by the motor vehicle accident in 2008. Mrs. C.C. also testified that at the date of separation she was experiencing physical limitations. Her health was significantly affected by both the physical work of the janitorial business and her part-time/full-time job as a personal support worker along with the stresses of the marriage. She testified that she was exhausted and felt that her health was being affected.

[39] There is no dispute, as conceded by counsel for Mr. P.C. in his closing submissions, that Mrs. C.C. is unable to work as a personal support worker given her physical limitations. Dr. Fashho testified as to Mrs. C.C.’s many physical limitations, including what he indicates are Mrs. C.C.'s chronic conditions such as neck pain, headaches and blurry vision, hearing impairment, associated tinnitus, cervicogenic headaches, neck strain, thoracic strain, temporomandibular joint dysfunction and left shoulder girdle strain. Dr. Fashho also testified that Mrs. C.C. recently had an MRI which indicates that she has a torn meniscus in her knee and will require surgery. He gave evidence as to Mrs. C.C.’s chronic anxiety, stress and depression. Dr. Fashho indicated that Mrs. C.C.’s major limitations with respect to employment would preclude more physical jobs but she is capable of working in some capacity.

[40] Section 19(1) of the Child Support Guidelines (the “Guidelines”) allows the court to impute income to a spouse if it considers it appropriate in the circumstances. Section 19 has also been applied in cases involving the imputation of income with respect to the issue of spousal support. Section 19(1) lists certain enumerated examples, including inter alia that a spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child or by the reasonable educational or health needs of the spouse.

[41] In the Ontario Court of Appeal decision of Drygala v. Pauli, 2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731 (C.A.), the Court set out at para. 23, the three-part test in applying the provision under s. 19. The first part of the test is to determine whether the spouse is intentionally under-employed or unemployed. If so, the second part of the test asks whether the intentional under-employment or unemployment is required by virtue of his or her reasonable educational needs, the needs of a child or reasonable health needs. If the answer to the second part of the test is negative, the third part of the test is to determine what income to be imputed is appropriate in the circumstances.

[42] In Drygala at para. 28, the Court determined that "intentionally" means a voluntary act. The Court also stated that: "[t]he parent required to pay is intentionally under-employed if that parent chooses to earn less than he or she is capable of earning.... The word ‘intentionally’ makes it clear that this section does not apply to situations in which, through no fault or act of their own, spouses are laid off, terminated or given reduced hours of work." The Court also found that there was no requirement of bad faith.

[43] As stated in the Ontario Court of Appeal decision of Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552, at para. 28: "The onus is on the person requesting an imputation of income to establish an evidentiary basis for such a finding."

[44] I find that Mr. P.C. has established an evidentiary basis for a finding that Mrs. C.C. is intentionally unemployed and I agree that a minimum wage income should be imputed to Mrs. C.C. as sought by Mr. P.C.. Mrs. C.C. did not testify that she was unwilling to work or that she was completely incapacitated, but rather she testified that she needed to find appropriate employment taking into consideration her physical limitations. She testified that she would work if she could find an appropriate job which may include working with children.

[45] Mrs. C.C. has taken additional training as recently as 2012 and 2015. Mr. P.C. testified that he provided Mrs. C.C. with funds for courses since separation. In April 2012 Mrs. C.C. received a certificate with respect to gerontology enabling her to work in nursing homes conducting activities with residents. She also recently completed a child care assistant program from September 2014 to June of 2015, but unfortunately was unable to pass the exam as she contends her time was spent preparing for this court proceeding.

[46] Although Mrs. C.C. has indicated a desire to find employment, she has not satisfied the Court that reasonable efforts have been made to do so. She has chosen to earn less than she is capable of earning. It is acknowledged that Mrs. C.C. experienced much stress and injuries in 2007 and 2008 that would have affected her ability to work in those years and perhaps a few years beyond ‑ certainly as a personal support worker; however, Mrs. C.C. provided little evidence that she has actively sought employment in any field in the last number of years. The only documentary evidence that Mrs. C.C. provided with respect to her attempts to find employment since she ceased her employment in 2007 included a letter addressed to Centenary Hospital dated February 1, 2012 wherein she sought employment as a personal support worker and a letter from the City of Toronto, Long-Term Care Homes and Services, dated June 4, 2014, indicating that she had not been a successful candidate for a part-time position.

[47] Mrs. C.C. did not provide a resume, a list of potential employers with whom she has sought employment, nor evidence of follow-up calls to potential employers. In addition, she provided no evidence of child care facilities to which she has applied given her evidence that she could work with children and has cared for children in the past as a nanny. It is appropriate to impute a minimum wage income to Mrs. C.C. as I am not satisfied that Mrs. C.C.’s physical limitations prohibit her from working in any capacity as confirmed by both her evidence and that of Dr. Fashho. Mr. P.C. seeks to impute an income of $21,000 gross per year to Mrs. C.C. which is reasonable and slightly less than a full-time income based on a 40-hour work week at minimum wage rates.

What is the appropriate quantum and duration of spousal support and when should spousal support payments commence?

[48] Mr. P.C. provided his Income Tax Returns for the years 2008 to 2014 which set out his line 150 income as follows:

Year	Line 150 Income
2008	Pre-bankruptcy ‑ $ 6,682
2008	Post-bankruptcy ‑ $88,886
2009	$103,778
2010	$117,102
2011	$109,533
2012	$104,190
2013	$119,513
2014	$142,416

[49] Mr. P.C.’s line 150 income for 2014 was $142,416. His employment income from the TTC was approximately $72,116 gross per year and he also received gross yearly income from OAS of $6,676, CPP of $12,091 and pension income from the TTC of $51,533. Mr. P.C. testified that his last year’s income was an exceptional year; however, as recently as September 3, 2015 he has indicated in his sworn Financial Statement that he earns the same income.

[50] Mr. P.C. also testified that he hopes to retire in a year, indicating that it may be before one year or after one year. He stated that he is run down and is now 73 years of age. He indicated that he can no longer work overtime and has difficulty with his memory. As stated above, Mr. P.C.’s evidence was that he continued to work in order to support his children and due to the fact that he received no child support at all from Mrs. C.C. post-separation.

[51] Mr. P.C. indicates that as he intends to retire soon, if entitlement to spousal support is found, only his retirement income should be used to determine the quantum of spousal support payments. I disagree. Mr. P.C. continues to be employed on a full-time basis and earns a significant income from many sources. I see no reason to limit Mr. P.C.’s obligation to pay spousal support to that of his retirement income only, as submitted by Mr. P.C.. The reality is Mr. P.C. has not yet retired and he continues to work full-time. All of his current income should be used to determine spousal support. Mr. P.C. earns a significant income and Mrs. C.C. has a need for support even imputing an annual income to her of $21,000 gross.

[52] Mr. P.C. has included in his calculations a table amount of child support for the youngest child, L.C.. Mr. P.C. testified that L.C. currently resides with Mr. P.C.’s friend Bruce. He does not reside with either parent. When questioned whether he financially assists L.C., Mr. P.C. replied, “negligibly”. Mr. P.C. also testified that L.C. is in grade 12 and he is not passing. He indicates that L.C. is “lazy”, he does not care about his schooling, he is not working at his schooling, and L.C. appears “lost.” He also stated that L.C. will often miss school, especially on a Monday. As Mr. P.C. has not claimed child support for L.C., L.C. does not reside with Mr. P.C. and Mr. P.C. only supports L.C. “negligibly”, there is no reason to include a child support amount for L.C. when determining the appropriate quantum of spousal support.

[53] Another issue raised by Mr. P.C. is that no spousal support should be paid to Mrs. C.C. as she resides with her boyfriend, Ron. Mr. P.C. testified that Mrs. C.C. advised him that she resides with Ron. He also indicated that he has dropped Mrs. C.C. off at Ron's home once or twice. However, Mr. P.C. also acknowledged that he has only met Ron once and that he has not been to Ron's home in over a year.

[54] Mr. P.C. called as a witness his son C.P.C. to support his position that Mrs. C.C. does not reside at her home, but rather she resides with her boyfriend Ron. C.P.C. testified that he is 21 years of age (now 22) and currently resides in the same building as his father. Prior to this, he resided in a two-bedroom apartment with his mother for approximately 3 to 3-1/2 years.

[55] C.P.C. testified that when he first resided with Mrs. C.C., he would see his mother on a daily basis and she would sleep in the apartment overnight. He indicated that Mrs. C.C. then began not to stay overnight at her apartment at all and he would only see his mother during the day. He indicated that from January to August of 2015 his mother never slept at her apartment, but resided with her boyfriend. He stated that if he had to find his mother he would find her at Ron's home or if he called his mother, she would be at Ron's home during the evening. He acknowledged that his mother paid the rent, but that he made financial contributions to the residence and the expenses.

[56] On cross-examination, C.P.C. denied that Mr. P.C. promised to pay for his apartment if he agreed to testify at this trial. He indicated that his lease on his apartment is in his own name and he pays for his rent. (Mr. P.C. testified that he loaned C.P.C. $2,200 for first and last month’s rent). C.P.C. also denied that he would force Mrs. C.C. out of her own apartment because he had friends over and was having parties. He acknowledged that he did have friends over once or twice every two weeks (four or five friends) and they did consume beer. He stated that he tucked the beer cases away in a small corner in the apartment.

[57] C.P.C. denied that he smoked illicit drugs in his mother's home, but admitted that he did have two dogs for which he was responsible. He acknowledged that his mother would complain about the dogs, but that he would clean up after the dogs after work. He further testified that his dogs had caused some damage to the apartment as he was shown photographs taken by his mother of some of the damage. He indicated that his mother slept in the main bedroom (which he contends she did not use), the dogs were in the second bedroom, and he slept on a pull out couch. He also acknowledged that sometimes he would leave dishes out but that he would clean them up after coming home from work.

[58] Mrs. C.C. testified that Ron is her boyfriend; however, she does not reside in a common-law relationship with him. She maintains her own residence and pays her own bills, including her own food. She indicated that she is not supported by her boyfriend Ron and is not ready to be involved in that type of relationship. She admitted that she occasionally does sleep at her boyfriend’s home.

[59] Mrs. C.C. provided pictures as evidence of what she contends is damage caused by C.P.C.'s two dogs in her apartment. This included urine and feces from the dogs in one of the bedrooms in her apartment, floors damaged, shoes chewed and damaged drywall. She further testified that C.P.C. and his friends smoked "bad cigarettes" and she is allergic to the smell. She did not want to call the police as C.P.C. is her son. She indicated that C.P.C. would tell her that she could not stay at her apartment as he was having a party. She testified that this would happen often and she felt she had no choice but to go to Ron's home or another friend's home to sleep. She testified that she asked Mr. P.C. to assist her with C.P.C. and that her son C.P.C. was disrespecting her. She indicated that eventually Mr. P.C. assisted C.P.C. in obtaining an apartment.

[60] I cannot conclude based on the evidence that Mrs. C.C. is residing with her boyfriend Ron. I accept Mrs. C.C.'s evidence that her son C.P.C. often had friends over for parties and she felt she had no alternative but to leave the premises. Additionally, C.P.C. had two dogs which he kept in the second bedroom. The photographs provided as evidence show the damage done to Mrs. C.C.'s apartment by the dogs and the filth created by the dogs. I found Mrs. C.C.’s evidence on this issue to be credible and reliable. She was genuinely upset by her treatment from C.P.C. and turned to Mr. P.C. for assistance.

[61] One might fault Mrs. C.C. for not being assertive with C.P.C. as she is the parent and this is her apartment; however, I accept her evidence that she felt that C.P.C. was not being respectful of her and she felt forced out of her own residence. C.P.C. did not deny the damage done by the dogs and the mess that the home was often left in. He downplayed these issues and did not seem to appreciate how this would upset his mother. Mrs. C.C. leaving her apartment to escape the situation or being forced out due to the situation, does not lead me to conclude that she is residing with her boyfriend Ron and being supported by him.

[62] Mrs. C.C. seeks spousal support in the amount of $3,000 per month commencing in 2009. In his closing submissions, counsel for Mrs. C.C. submits that Mrs. C.C. was unaware of Mr. P.C.’s income until he provided his Income Tax Returns in the Trial Record. He submits that the interim spousal support order was based on a much lower income of approximately $70,000 for Mr. P.C. and that Mr. P.C.’s income has increased significantly since 2008. Mrs. C.C. contends that this was a material change and support should be increased as of 2009.

[63] In contrast, counsel for Mr. P.C. submits that Mrs. C.C. took no steps from 2009 through to 2014 to move the matter forward. He contends that the only party moving the matter forward was Mr. P.C. who sought and obtained an order from Kelly J., dated April 29, 2010, severing the divorce from the corollary relief. I note that Kelly J. also made an order dismissing all matters dealing with custody and access in this Court as these issues were being pursued in the Ontario Court of Justice. Ultimately, a divorce was granted on June 25, 2013.

[64] I am not prepared to order spousal support in the amount of $3,000 per month commencing January 1, 2009. It appears that there were no steps taken in this matter by Mrs. C.C. from 2009 until 2015. There is also no evidence that disclosure was sought prior to 2015 nor is there any evidence that Mrs. C.C. was seeking an increase in support during that period of time and it was being denied. No steps appear to have been taken until just prior to May 2015 when the Settlement Conference took place. Despite an order of Backhouse J. dated February 26, 2008, Mrs. C.C. also did not take any steps to bring a motion for leave to continue with the property application or to obtain the consent of the Trustee with respect to Mr. P.C.’s assignment in bankruptcy as ordered. Although this did not affect the spousal support claim, it also evidences the fact that Mrs. C.C. took no steps to deal with this ongoing litigation at all.

[65] Mr. P.C. has paid the $1,500 per month in spousal support as ordered on an interim basis. There is no evidence that he had been in arrears or was in arrears at the time of trial. He has paid this amount since 2008 and an increase was never sought. Additionally, the children were in Mr. P.C.’s care but for a period of approximately seven to nine months as testified to by Mr. P.C. when the children were removed from his care by the Children’s Aid Society. There was also a period of time when C.P.C. lived with Mr. P.C.’s friend Bruce. Mr. P.C. received no child support for the children from Mrs. C.C. and was solely responsible for them financially. Additionally, he assisted Mrs. C.C. financially with some of her expenses when requested, including paying for some of her courses, providing her with other monies that were not repaid, and paying for her car insurance for approximately one year which appears to have been in exchange for Mrs. C.C. cleaning his home which he continued to share with the children.

[66] An appropriate commencement date for any increase in spousal support is January 1, 2015, the year in which the litigation resumed and was moved to trial. Using an income for Mr. P.C. of $142,416 gross and an imputed income to Mrs. C.C. of $21,000, this results in a range of spousal support under the SSAGs of $2,277 to $3,035 with a duration of 7.5 to 15 years from the date of separation, subject to variation and possibly review.

[67] Taking into consideration the factors and the objectives as set out in the Divorce Act and referred to earlier, the length of the parties' relationship, the disparity in incomes, and using the SSAGs as a tool, Mr. P.C. shall pay spousal support to Mrs. C.C. in the amount of $2,800 per month commencing January 1, 2015 and continuing monthly thereafter until further order of the court. Mr. P.C. shall be given credit for spousal support payments in the amount of $1,500 per month which he has paid during this same time period. I am not prepared to time limit the support payments (i.e. for no more than two years as requested by Mr. P.C.). Spousal support has been paid by Mr. P.C. since 2008; however, the marriage was of a significant duration and Mrs. C.C. remains in need. She has suffered an economic disadvantage as a result of her role during the marriage as indicated and she is unable to achieve self-sufficiency. She has suffered a hardship as a result of the marriage breakdown. The spousal support payments shall continue subject to a material change in circumstances.

Issue #2

Should lump sum spousal support be paid by Mr. P.C. to Mrs. C.C. as compensation for Mrs. C.C.'s entitlement to one-half of the value of Mr. P.C.'s pension at the valuation date?

[68] Mrs. C.C. seeks the sum of $75,000 as lump sum spousal support. She seeks this amount of support for what she states is compensation for Mr. P.C. being able to retain her portion of Mr. P.C.'s pension which she lost as a result of Mr. P.C.'s 2008 bankruptcy. She acknowledges that Mr. P.C. does not have the ability to satisfy a lump sum payment; however, she contends that he is in receipt of his pension now and a payment of $1,000 per month in order to satisfy the lump sum would be appropriate.

[69] A valuation of Mr. P.C.'s pension at the TTC was completed by Pension Valuators of Canada in a report dated April 24, 2008. Pursuant to the trial management conference endorsement of Kiteley J., on consent the report was entered as evidence at trial.

[70] In his closing submissions, counsel for Mrs. C.C. indicated that Mrs. C.C. would have been entitled to one-half of the value of Mr. P.C.'s pension which, at the age of 65, would have a value of $150,380 after tax of 21.23% was deducted. Taking one-half of this amount, counsel contends that this results in an entitlement to Mrs. C.C. of approximately $75,000. Mrs. C.C. asserts that right after the interim order for spousal support was made, Mr. P.C. declared bankruptcy. She argues that it would be unjust for Mr. P.C. to retain a significant windfall, being her one-half of the value of Mr. P.C.'s pension, as the pension was exempt from the bankruptcy proceedings.

[71] In support of Mrs. C.C.’s position, counsel for Mrs. C.C. relies upon much case law, but primarily upon the decisions of Schreyer v. Schreyer, 2011 SCC 35, [2011] 2 S.C.R. 605 (S.C.C.), Davis v. Crawford, 2011 ONCA 294, [2011] O.J. No. 1719 (C.A.), Lipinska v. Lipinski 2011 ONSC 653 and Sim v. Sim 2009 CanLII 6835 (ON SC).

[72] Counsel for Mr. P.C. contends that most of the case law relied upon by Mrs. C.C., in particular the decisions of Lipinska and Sim, involve situations where an equalization payment had already been ordered but becomes frustrated by the bankruptcy. He contends that in this situation there has been no equalization of net family property as there was no determination of the value of assets and debts of either party on the valuation date, the date of marriage and the value of excluded property that would have taken place in the equalization process. Counsel for Mr. P.C. contends that Mrs. C.C. is focusing exclusively on the pension but we do not know what the equalization payment would have been. Counsel further contends that there are three values in the valuation report presented with respect to the value of Mr. P.C.’s pension at ages 63.45 (earliest retirement date), 65 (normal retirement age) and 69 (age when commencement of pension payments is mandatory). He argues that Mr. P.C. had to continue to work as he had three children to support. He submits that the value is in contention as the retirement date was unclear.

[73] Counsel for Mr. P.C. further indicates that Mrs. C.C. was operating the parties’ janitorial business at the date of separation which was profitable. He argues that no value has been provided with respect to the business and that value would have been part of the equalization process as well. Additionally, counsel argues that Mrs. C.C. removed all of the household contents in a large cube van which was also not accounted for as there was no equalization. Counsel submits that spousal support is not intended to redistribute capital. He further contends that both parties went bankrupt, there is no history of Mr. P.C. failing to make spousal support payments, there is no antagonism between the parties and no need for a clean break. Further, he submits that Mr. P.C. would not have the ability to make a lump sum payment.

[74] As set out in Schreyer, a claim to equalization of net family property does not survive the payor’s bankruptcy unless the recipient avails herself or himself of the remedies available in bankruptcy law. A claim to spousal support does survive a discharge from bankruptcy. In paragraph 37 of Schreyer the Court discusses the use of spousal support in situations where inequities arise after a bankruptcy:

¶37 In its current form, therefore, the BIA offers limited remedies to spouses in the appellant's position. In this regard, family law may provide them with a safer harbour after the bankrupt has been discharged, more particularly through spousal support…If a support order were made in a case like this one, the Court might well aim to mitigate the inequities arising from the bankruptcy, such as the release of the debtor spouse from an equalization claim or the retention by the debtor spouse of an exempt asset (see Turgeon v. Turgeon, [1997] O.J. No. 4269 (Gen. Div.); and Sim v. Sim (2009), 2009 CanLII 6835 (ON SC), 50 C.B.R. (5th) 295 (Ont. S.C.J.)). Such determinations must be made on a case-by-case basis.

[75] In Davis v. Crawford, the Ontario Court of Appeal outlined when it is appropriate to order lump sum spousal support at paras. 60 to 63; 67, 70 and 75:

¶60 It is well accepted - and undisputed - that a lump sum award should not be made in the guise of support for the purpose of redistributing assets: Mannarino; Willemze-Davidson v. Davidson (1997), 1997 CanLII 1440 (ON CA), 98 O.A.C. 335 (C.A.), at para. 32. Moreover, the governing legislation does not recognize redistribution of assets as one of the purposes of a spousal support award.

¶61 That said, a lump sum order can be made to "relieve [against] financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home)": Family Law Act, s. 33(8)(d).

¶62 In any event, the purpose of an award must always be distinguished from its effect. Any lump sum award that is made will have the effect of transferring assets from one spouse to the other. The real question in any particular case is the underlying purpose of the order: Willemze-Davidson at para. 32.

¶63 Similarly, it is well accepted that an important consideration in determining whether to make a lump sum spousal support award is whether the payor has the ability to make a lump sum…

¶67 The advantages of making such an award will be highly variable and case-specific. They can include but are not limited to: terminating ongoing contact or ties between the spouses for any number of reasons (for example: short-term marriage; domestic violence; second marriage with no children, etc.); providing capital to meet an immediate need on the part of a dependent spouse; ensuring adequate support will be paid in circumstances where there is a real risk of non-payment of periodic support, a lack of proper financial disclosure or where the payor has the ability to pay lump sum but not periodic support; and satisfying immediately an award of retroactive spousal support…

¶70 As we have said, we do not endorse the submission that lump sum spousal support awards must be limited to "very unusual circumstances" as a matter of principle. Nonetheless, we agree that most spousal support orders will be in the form of periodic payments. To a large extent, this is for four very practical reasons…

¶75 Irrespective of whether the proposed support is periodic or lump sum, it is incumbent upon counsel to provide the judge deciding the matter with submissions concerning the basis for awarding and the method of calculating the proposed support, together with a range of possible outcomes. Further, it is highly desirable that a judge making a lump sum award provide a clear explanation of both the basis for exercising the discretion to award lump sum support and the rationale for arriving at a particular figure. Clear presentations by counsel and explanations by trial judges will make such an award more transparent and enhance the appearance of justice. Over time, this approach will undoubtedly foster greater consistency and predictability in the result.

[76] Counsel for Mr. P.C. indicated in his closing submissions that Mrs. C.C. did not seek lump sum spousal support in her Application. Counsel for Mr. P.C. contends that as this was not claimed in Mrs. C.C.'s Application, she cannot now seek lump sum support. Counsel does acknowledge, however, that the Court does have the discretion to order lump sum spousal support.

[77] Counsel for Mr. P.C. is correct that even if lump sum spousal support was not sought in the pleadings, the Court has the discretion to order lump sum spousal support. However, I decline to grant an order of lump sum support.

[78] The basis for the order of lump sum spousal support put forward by counsel for Mrs. C.C. is the fact that Mrs. C.C. contends that Mr. P.C. received a windfall as a result of having his pension exempt from the bankruptcy proceedings and thus he is able to retain the entire amount of his pension. The difficulty is that no equalization of net family property has taken place. Both parties declared bankruptcy in 2008 and there was never a determination of the value of the parties’ assets and debts on the valuation date, on the date of marriage, nor a determination of the value of excluded property. To order a lump sum spousal support payment now would result in a redistribution of assets when no equalization process took place.

[79] However, as there was no equalization of net family property, Mr. P.C. is precluded from raising the argument that to now order spousal support to be paid using the income stream of his pension results in a double dipping situation. As such, I have used the total amount of Mr. P.C.'s income, including employment income, OAS, CPP and pension income from the TTC to determine monthly spousal support payments. Mrs. C.C. benefits from an increased amount of monthly spousal support as a result of using Mr. P.C.'s entire income, including his pension income. Additionally, this bolsters Mrs. C.C.'s argument for spousal support beyond Mr. P.C.'s pending retirement date as the pension was never subject to equalization. This of course will be determined on the basis of the facts at the time of retirement and both parties’ financial situations at that time. In the meantime, periodic payments of spousal support will continue to be made.

Issue #3

If Mrs. C.C. is entitled to a lump sum payment of spousal support should an order be made requiring Mr. P.C. to designate Mrs. C.C. as a beneficiary of his pension to the extent of any unpaid amount outstanding with respect to the lump sum payment of spousal support?

[80] Having found no entitlement to a lump sum payment of spousal support, there is no need to address this issue.

Order

[81] This Court orders the following:

i) Mr. P.C. shall pay spousal support to Mrs. C.C. in the amount of $2,800 per month, commencing January 1, 2015 and continuing monthly thereafter until further order of the Court. Mr. P.C. shall be given credit for spousal support payments in the amount of $1,500 per month which he has paid during this same time period. The spousal support payments shall continue subject to a variation based on a material change in circumstances;

ii) Mrs. C.C.’s claim for lump sum spousal support is dismissed as is her claim requiring Mr. P.C. to designate her as a beneficiary of his pension if lump sum support was ordered;

iii) I encourage the parties to agree on costs; however, if they are unable to do so, any party seeking costs shall provide written costs submissions, no longer than three doubled-spaced pages, along with a Bill of Costs and any Offers to Settle by December 30, 2015. Any written reply submissions shall be provided by January 18, 2016 with the same requirements.

Stevenson J.

Released: December 2, 2015

CITATION: C.C. v. P.C., 2015 ONSC 7530

COURT FILE NO.: 08-FD-335544

DATE: 20151202

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

C.C.

Applicant

• and -

P.C.

Respondent

REASONS FOR DECISION

Stevenson J.

Released: December 2, 2015