CITATION: King v. King, 2016 ONSC 2199
COURT FILE NO.: FS-04-49847-03
DATE: 2016 03 31
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Ronald Rowe King v. Joan Marie King
BEFORE: Fragomeni, J.
COUNSEL: Ronald Rowe King – In Person
Joan Marie King – In Person
HEARD: February 23, 2016
E N D O R S E M E N T
[1] The respondent husband brings a motion for the following relief:
An order terminating spousal support;
An order to restore control of his Life Insurance Policy with verification of payments being maintained;
An order removing the applicant wife as beneficiary of his Life Insurance;
An order removing the applicant wife from his company insurance; and
An order to continue with the divorce.
[2] The husband sets out the following grounds in support of his motion:
On April 1, 2015 he retired from full time employment at Humberview Truck and accepted a part-time position. His part-time employment is now $14,400 annually;
The husband also receives $1,580 per month from CPP and OAS;
The husband’s total annual income is, therefore, $33,360;
The wife’s total annual income is $28,678.80, comprised of $1,759.32 per month from employment and $669.30 for spousal support paid to her by the husband;
The husband has paid spousal support for 14 years;
The wife’s employment income is now greater than his;
The wife is now eligible to collect CPP;
Since he is no longer working full time the wife should be removed from his company insurance, as having her on represents an additional cost to him. The additional cost for her is $22 per month; and
The husband is presently living with someone who helps with the household expenses.
Position of the Wife
[3] The wife seeks the following order in response to the husband’s position:
That spousal support continue for life as per the order of Justice Dunn, dated November 18, 2004;
Re-imbursement of $499.99 for back payments she made relating to the husband’s Sun Life Policy;
That the husband pay the arrears of spousal support in the amount of $1,914.09 as of January 4, 2016; and
That the husband keep her on his company health benefits.
[4] On September 25, 2009, Justice Lemon made the following order:
Mr. King’s request to vary the support order of Justice Dunn, dated November 18, 2004, is allowed and the support shall be payable in the amount of $600 per month, commencing October 1, 2009; and
Any arrears owing under the order of Justice Dunn shall be paid at the rate of $100 per month.
[5] In his order of November 18, 2004, Justice Dunn sets out the following, in part:
Para 5 – the spousal support payable pursuant to paragraph 3 herein is final except for a variation of a material change in circumstances which shall be deemed to include the respondent’s retirement from his employment at Meadow Mills Pontiac/Buick Limited;
Para 7 – the respondent shall maintain for the benefit of the applicant, all plans of health insurance available to him through his employment so long as such coverage continues to be available to him through his employment and the applicant qualifies for such coverage within the terms of the insurance plans;
Para 10 – the respondent shall maintain this life insurance policy as long as he is required to pay support for the applicant. Once the obligation to pay support to the applicant is terminated, the respondent may then deal with the policy of life insurance as he wishes; and
Para 14 – the applicant may obtain a divorce judgment which shall proceed on an uncontested basis upon proper application.
[6] The parties were married on September 22, 1971. They separated on January 17, 2004. The husband’s date of birth is December 17, 1948. He is now 67 years old. The wife’s date of birth is March 1, 1952. She is now 64 years of age.
[7] By letter dated June 16, 2015, Mr. Mike Lesniewski, Payroll Administrator at Humberview Chevrolet Buick GMC confirmed that the husband retired March 31, 2015 and was working only part-time at $14 per hour.
Re: Ongoing Spousal Support
[8] I am satisfied that, in accordance with Justice Dunn’s order, the retirement of the husband on March 31, 2015 is a material change in circumstances. The Financial Statement of the husband, sworn February 1, 2016 sets out a total monthly income of $2,780 comprised of part-time employment of $1,200 per month and CPP and OAS of $1,580 per month. The wife’s Financial Statement, sworn February 9, 2016 sets out a total monthly income of $2,389, comprised of $1,759.32 from employment and $669.30 of spousal support payments.
[9] The wife indicates to the court that as of 2017 she will retire and at that time will only receive CPP and OAS.
[10] There is no indication in the material before me whether the husband will continue this part-time schedule indefinitely. He is now 67 years of age.
[11] There is also no indication in the material before me whether the wife must retire next year or whether she can continue with her employment.
[12] I am satisfied in all of these circumstances that paragraph 5 of the order of Justice Dunn of November 18, 2004, has been triggered by the retirement of the husband on March 31, 2015. Considering both his financial circumstances and the wife’s financial circumstances I am satisfied that the husband’s spousal support obligations should continue.
[13] The parties were married for over 32 years. Although the husband is now only working part-time, with that income and his CPP and OAS pensions he has the ability to continue to pay spousal support. The wife’s monthly employment income is only $1,759.32 per month.
[14] The DivorceMate calculation on incomes of $33,360 and $21,108 sets out the following guideline range:
Low - $383 per month;
Mid - $447 per month;
High - $510 per month
[15] In all of the circumstances I will set the amount at closer to the middle of the range considering the length of the marriage and their respective financial circumstances. The sum of $400.00 per month is reasonable.
Re: Arrears
[16] The husband commenced his motion to change on July 31, 2015. He argues that FRO has been enforcing spousal support payments at $600 per month. This $600 amount was based on an income of $43,000 for 2009, as set out in Justice Lemon’s endorsement of September 25, 2009.
[17] The husband argues that since April 2015, he was only working part-time, so he has overpaid to FRO. As such any arrears calculated as of April 1, 2015 should be wiped out as he was only earning $1,200 per month. The difficulty with the husband’s position is that his total monthly income was $2,780 not $1,200.
[18] Considering the Court’s finding on the appropriate amount of support, the husband should have been paying $400 per month instead of $600 per month commencing April 1, 2015. As such I am satisfied that the arrears ought to be fixed at nil.
Re: Life Insurance
[19] The husband shall pay to the wife the sum of $499.99. Upon such payment being made the husband shall have control of his life insurance policy and will be at liberty to name whoever he wishes as beneficiary. The wife was content with such an order.
Re: Health Benefits
[20] Paragraph 7 of Justice Dunn’s order shall remain in place.
Re: Divorce
[21] The husband may proceed to obtain a divorce on an uncontested basis.
Order to Issue as Follows
- That the respondent husband shall pay to the applicant wife spousal support in the sum of $400 commencing February 1, 2016. Either party may proceed to have the issue of continuing entitlement to spousal support and/or the quantum of spousal support re-visited at any time on a material change in circumstances, such circumstances to include:
the husband ceasing to work part-time
the wife’s retirement from employment.
The spousal support arrears are fixed at nil.
The respondent husband shall pay to the application wife $499.99. Upon such payment being made by way of certified cheque or money order the order of Justice Belleghem, dated April 7, 2006 is varied as follows:
(a) Ownership of policy #L1-R544,513-2 on the life of Ronald R. King with Sun Life Assurance Company of Canada is hereby vested in the name of the respondent, Ronald R. King;
(b) Coincidental with the vesting of ownership in the respondent husband’s name, the respondent husband shall have absolute right to designate beneficiary irrevocably or otherwise;
(c) The respondent husband shall be responsible for maintaining the monthly premium cost related to the life insurance policy and the applicant wife will no longer be responsible to pay the $69.30 monthly premium on the policy; and
(d) The order shall be forthwith, served on Sun Life Assurance Company of Canada by the respondent husband.
The respondent husband shall maintain for the benefit of the applicant wife all plans of health insurance available to him through his employment so long as such coverage is available through his employment and the applicant wife qualifies for such coverage with the terms of the insurance policy;
The respondent husband may proceed forthwith with an uncontested divorce application; and
The parties shall file written submissions on costs within ten days.
Fragomeni J.
DATE: March 31, 2016
CITATION: King v. King, 2016 ONSC 2199
COURT FILE NO.: FS-04-49847-03
DATE: 2016 03 31
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Ronald Rowe King v. Joan Marie King
BEFORE: Fragomeni J.
COUNSEL: Ronald Rowe King – In Person
Joan Marie King – In Person
ENDORSEMENT
FRAGOMENI J.
DATE: March 31, 2016