Court File and Parties
COURT FILE NO.: FS2100-08 DATE: 2016/08/09 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Deborah L. Gennoe v. Blake Gennoe
BEFORE: Ellies J.
COUNSEL: Hugh C. McLachlan, for the Applicant Shawn Hamilton, for the Respondent
HEARD: July 29, 2016
Endorsement
[1] Mr. Gennoe moves to vary my order of April 9, 2014. Pursuant to that order, Mr. Gennoe was required to pay monthly support to his former spouse, now Ms. Laframboise, in the amount of $3,000. In addition, Mr. Gennoe was required to pay the sum of $750 per month towards arrears fixed in the amount of $30,000.
[2] Mr. Gennoe contends that there has been a material change in circumstances because his health prevents him from being able to work as an insurance broker. Ms. Laframboise concedes that there has been a material change in circumstances since my 2014 order was made. However, she argues that spousal support should be reduced as a result of that change, and not eliminated altogether. For the following reasons, I agree.
[3] The onus of proving that spousal support should cease is on Mr. Gennoe. He deposes that he is no longer able to work as an insurance broker due to his health. The medical evidence adduced by Mr. Gennoe in support of that statement consists of a one-sentence letter from Dr. Birosh to the effect that Mr. Gennoe is unable to work in that field due to the “stresses involved”. There is no evidence that Mr. Gennoe is unable to work in any other field. At present, he is employed driving buses for both students and handicapped individuals. He maintains that his income from these jobs and from a rental property he owns is presently only $15,960.24 per year. However, there is no evidence that Mr. Gennoe is unable to generate more income, either through the same employers or through others. Nor is there any reason to believe that he cannot. He is only 56 years of age.
[4] For these reasons, I believe it is appropriate to impute some income to Mr. Gennoe. On behalf of Ms. Laframboise, counsel submits that I should impute yearly income of $32,000 to Mr. Gennoe. Counsel arrives at this figure by adding the sum of $10,000 to Mr. Gennoe’s earned annual income, together with the net proceeds he receives from his rental property. However, I believe that Mr. Gennoe’s purported income of $15,960.24 includes his net rental income. Moreover, the figure of $10,000 appears to be completely arbitrary.
[5] In my view, it would be more appropriate to impute income based on minimum wage, in the absence of any evidence that Mr. Gennoe is capable of earning more than that. Mr. Gennoe spent most of his working life as an insurance broker. I have no evidence as to what transferable skills he has as a result. For that reason, I would impute income to Mr. Gennoe in the amount of $23,400, which represents the current minimum wage over 40 hours per week, for 52 weeks.
[6] That does not end the matter, however. One must still consider the means and needs of the support recipient. At present, Ms. Laframboise earns no income. She deposes that she has no ability to do so. I am unable to accept that.
[7] In support of her position, Ms. Laframboise appended letters from two physicians to her affidavit. One is from Dr. Lamont. The letter is dated September 16, 2015, and indicates only that Ms. Laframboise underwent a surgical procedure involving her “left tube (presumably her fallopian tube) and ovary”. It also says that following surgery, she feels better than she has in a long while, has healed nicely and has no abdominal findings. Dr. Lamont did not need to see her again. There is no evidence that Ms. Laframboise cannot work from a physical point of view.
[8] Ironically, like Mr. Gennoe, Ms. Laframboise also submitted a letter from Dr. Birosh. In his letter, Dr. Birosh says that Ms. Laframboise, too, suffers from anxiety. Dr. Birosh writes that Ms. Laframboise’s condition affects her ability to work in “stressful settings”. It does not say that she cannot work at all.
[9] Ms. Laframboise also relies on her age and the role she played in raising her family in support of her position that she cannot work. However, just as with the medical evidence, neither of these facts establishes that Ms. Laframboise cannot work at all.
[10] The parties cohabited for approximately 22 years, during the last 20 of which they were married. During their marriage, Ms. Laframboise stayed at home to raise the children.
[11] The parties separated in 2007. Both during the period of cohabitation and afterwards, Ms. Laframboise was able to obtain employment in a retail setting on a seasonal basis. As I set out at para. 21 of my reasons relating to my order of April 9, 2014, at the time that Rivard J. ordered Mr. Gennoe to pay $3,000 in monthly support in 2009, he found that Ms. Laframboise earned minimum wage for 15 hours per week.
[12] The last time Ms. Laframboise worked was in 2012. However, I am not persuaded that she can no longer do so at all.
[13] Ms. Laframboise is now 60 years old. While I do not believe it would be reasonable to expect Ms. Laframboise to become completely self-sufficient in light of her work history, it would be inconsistent to accept that Mr. Gennoe can work full-time at the age of 56, but that Ms. Laframboise cannot work at least part-time at the age of 60 in light of the similarities in their medical evidence. For these reasons, I would impute income to her of $11,700 per year, representing 20 hours per week at minimum wage.
[14] Based on the income I would impute to both parties, the Spousal Support Advisory Guidelines (“SSAG”) indicates a range for spousal support between $322 and $429 per month, with $375 being the midpoint. I would make an order in the low end of the range, in order to accommodate the issue of support arrears, to which issue I now turn.
[15] I was advised during argument that Mr. Gennoe has not paid anything towards the ongoing support order since approximately mid-April, 2016. This corresponds with the date upon which he received the last of the payments due to him as a result of a sale of his book of business to his former employer. Mr. Gennoe’s financial information indicates that he received the sum of $71,298 in such payments during the year 2016. I am also advised that there is probably about $16,000 remaining of the $30,000 in arrears towards which Mr. Gennoe was ordered to pay $750 per month in my 2014 order. Mr. Gennoe submits that the outstanding arrears ought to be forgiven as a result of the material change in circumstances upon which he also bases his request to eliminate monthly spousal support. Again, I am unable to agree.
[16] Although Mr. Gennoe was permitted to pay the arrears of spousal support at the rate of $750 per month by virtue of my 2014 order, he was not precluded from paying at a greater rate. It seems to me that, knowing that the payments from his former employer were coming to an end, Mr. Gennoe ought to have taken steps to retire the arrears of support. Instead, he appears to have done nothing beyond the minimum required. For that reason, I am not inclined to relieve him of his obligations. I am, however, prepared to allow Mr. Gennoe to satisfy those obligations at a rate more commensurate with his reduced income.
[17] During argument, counsel advised me that they were content that I dispose of the original motion to change on a final basis. Therefore, a final order shall issue granting the motion to change and varying my order of April 9, 2014, by:
(1) reducing the amount of ongoing monthly support payable to the sum of $325 per month, commencing on June 1, 2016, and continuing on the 1st day of each and every month thereafter; and
(2) reducing the amount to be paid monthly on account of arrears to the sum of $375 per month, commencing on June 1, 2016, and continuing until the said arrears are paid in full.
[18] Success on the motion was mixed. While Ms. Laframboise succeeded in opposing Mr. Gennoe’s request to eliminate ongoing support and arrears altogether, Mr. Gennoe succeeded at having them reduced in light of his changed circumstances. For that reason, I would not award costs to either party.
Ellies J. Date: August 9, 2016