Citation: Wright v. Lavoie, 2016 ONSC 3909
COURT FILE NO.: FS-12,266-11-01
DATE: 2016-06-21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Cheryl Wright
Applicant
– and –
Gary Lavoie
Respondent
Cheryl Wright, acting in person
Gary Lavoie, acting in person
HEARD: June 10, 2016
REASONS FOR JUDGMENT
Del frate, J.
[1] The respondent Gary Lavoie (“Lavoie”) brings a motion seeking to terminate the spousal support ordered by Gauthier J. on November 19, 2014, whereby he was to pay the sum of $1,597 per month commencing January 1, 2014, continuing on the first day of every month thereafter.
[2] The applicant Cheryl Wright (“Wright”) opposes the claim on the basis that she still has need and that Lavoie has the ability to pay.
Background
[3] The facts of this long standing litigation are outlined in Gauthier J.’s decision and thus I will not repeat them. However, for the purposes of this motion the following facts are important.
[4] Lavoie is 58 years of age and as of December 1, 2014, is on a pension whereby he receives $5,723.09 per month for the yearly sum of $68,677.
[5] Wright is 60 years of age and continues to be employed with the Greater Sudbury Police Service and her 2015 income was $59,165.36.
[6] Lavoie submits that the spousal support ought to have terminated as of December 1, 2014, since his income was reduced substantially as a result of his election of his pension. When one factors in his loss of benefits through his employment, the income disparity between himself and Wright is very minimal and accordingly no amount should be ordered.
[7] Lavoie further contends that since January 1, 2015, he has overpaid in his support payments and the overpayment should be reimbursed.
[8] Wright submits that the support payments should be reduced but not terminated. She is still entitled to support in view of the 22 year common law relationship. Further, Lavoie has now remarried and his spouse is contributing some $12,000 to their household income meaning that the Lavoie household is enjoying lifestyle of $80,000 as opposed to her lifestyle of $59,000. She further contends that since the separation her lifestyle has decreased substantially in view of the disparity in incomes.
[9] Wright also submits that since she will be retiring in January 2017, her income will be further reduced since her pension until age 65 will be $39,000 and after age 65 it will be $29,000. These two amounts however do not factor in what she might be receiving from the Canada Pension Plan or Old Age Security Pension. No evidence was led as to those amounts.
Discussion
[10] The parties separated in October of 2010 after a 22 year relationship. Litigation commenced shortly thereafter and intensified with time. It has been a rather acrimonious six years with no foreseeable abatement. Both parties have taken unrealistic and unreasonable positions towards resolving the numerous motions and counter-motions brought throughout this lengthy litigation. This motion is no exception.
[11] Wright contends that a reduction is in order and that support ought to be reduced from the present amount of $1,597 monthly to $800 monthly. Further, it ought to continue for an indefinite period of time.
[12] Lavoie contends that the support should be terminated as of December 1, 2014, and that any payment he made since then should be reimbursed except for the $15,000 attributed to the arrears. Accordingly, he is owed $16,766.48.
[13] The length of the relationship, the respective incomes of the parties, their lifestyles and need and ability to pay are some of the factors that must be considered in assessing these cases.
[14] In my view Wright has succeeded in convincing me that she still needs some support. Lavoie has also convinced me his circumstances have changed and he should no longer be obligated to pay what was ordered by Gauthier J.
[15] Lavoie’s request that no payment ought to be made after December 1, 2014, is totally unrealistic considering that this was a 22 year relationship.
[16] In my view, spousal support out to be varied as of December 1, 2014, to the mid-point suggested by the Guidelines with Lavoie’s attributed annual income $68,677 and Wright’s attributed annual income of $59,165.36. The mid-point is $319.00 monthly. Accordingly, commencing January 1, 2015, Lavoie’s payment out to have been $319.00 monthly. For 2015 his yearly amount would be $3,828.00. For the period of January 1, 2016, to June 1, 2016, his responsibility is $1,914.00 for a total of $5,742.00.
[17] The overpayment for this period of time is $16,766.48. The sum of $5,742.00 will be deducted leaving an overpayment of $11,024.48.
[18] The sum of $2,000 awarded as costs by Gauthier J. must also be factored in and should be deducted from the overpayment meaning that Lavoie’s overpayment is $9,025.48.
[19] Lavoie’s ongoing payments are not to commence until such time as the sum of $9,025.48 has been exhausted by his ongoing support obligations. In other words, he has a credit of $9,025.48 towards his support obligations.
[20] Lavoie requested costs in the sum of $2,000 should he be successful. In view of the mixed success, no costs are ordered in this motion.
[21] Order to issue as per reasons.
[22] A copy of my reasons and the order ought to be forwarded to the Family Responsibility Office as soon as possible so as not to create any further challenges to the parties.
The Honourable Mr. Justice Robert G.S. Del Frate
Released: June 21, 2016
CITATION: Wright v. Lavoie, 2016 ONSC 3909
COURT FILE NO.: FS-12,266-11-01
DATE: 2016-06-21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Cheryl Wright
Applicant
– and –
Gary Lavoie
Respondent
REASONS FOR JUDGMENT
Del Frate, J.
Released: June 21, 2016