CITATION: Martin v. Dayman, 2016 ONSC 6622
COURT FILE NO.: (Welland) 9418/14
DATE: 2016-11-25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Kimberly Ann Martin
Michael S. L. Roberts, Counsel for the Applicant
Applicant
- and -
Peter William Dayman
Self-represented
Respondent
HEARD at Welland, Ontario:
August 10, 11, 12, 2016 and
September 29 and 30, 2016
REASONS FOR JUDGMENT
Introduction
[1] In April 2014, after a 30 year relationship, the applicant, Kimberly Ann Martin and the respondent, Peter William Dayman, separated. The applicant claims spousal support and equalization of net family property. The respondent resists the application for spousal support.
Overview
[2] The parties commenced cohabitation in October 1983, when the applicant was 20 and the respondent 17. They were married on October 21, 1995. There are no children of the marriage. They separated in April 2014. Throughout the course of their relationship, the parties lived in many different places – normally renting. The parties also worked at several different jobs.
[3] The applicant worked for her father in the family business, she went to school and became a travel agent. She studied massage and reflexology. The respondent worked for the applicant’s father and her brother. He was a millwright.
[4] In 1999 the respondent took a course to become a helicopter pilot. From 2000 to 2003 the couple lived in Alberta. The respondent flew helicopters. The applicant worked as a travel agent. In 2003 they moved back to Ontario.
[5] The respondent earned good money as a helicopter pilot. In August 2011 the couple purchased the matrimonial home at 63399 Concession 6, RR #1, Wellandport, Ontario (“the matrimonial home”) for $300,000. In 2011 the applicant obtained certification as a personal support worker (“PSW”). She has since returned to school to become a registered practical nurse (“RPN”). In April 2013 the applicant began flying helicopters in Nigeria. This was high risk work for which he was paid approximately $10,000 per month. After the date of separation, the applicant ceased working flying helicopters and has since undertaken a course in aviation technician-aircraft maintenance program at Mohawk College. He has not worked since August 2014.
Issues
[6] There are two main issues which are to be determined by me. These are:
(1) Equalization of net family property, and
(2) Spousal support.
[7] It is appropriate to first make a determination with respect to the equalization of net family property and then once that has been determined to address the issue of spousal support.
Equalization of Net Family Property
[8] The parties each prepared net family property statements. In this case there are no exclusions and the parties owned no property on the date of marriage. The main asset owned by the parties after this 30 year relationship is the matrimonial home. In addition, the applicant has a life insurance policy with the value of $39,195 and the respondent has a pension in the amount of $15,891.08.
[9] There was an issue with respect to the valuation date. The applicant asserts the valuation date to be April 24, 2014 which was the day she moved out of the matrimonial home. The respondent asserts the date of separation was April 21, 2014 when the applicant sent him an email advising him of her desire to separate. The definition of valuation date is found in the Family Law Act, RSO, 1999, c.F.3. The relevant portion is paraphrased as follows:
“Valuation date” means the earliest of the following dates:
- The date the spouses separate and there is no reasonable prospect that they will resume cohabitation.
Parties can live separate and apart in the matrimonial home. The date one party moves out is not determinative. Given the email from the applicant, I am satisfied that the valuation date is appropriately April 21, 2014.
Assets Owned on the Valuation Date
[10] I have reproduced below a chart which sets out the assets and debts and liabilities on the valuation date. I will review certain items.
[11] I fixed the value of the matrimonial home at $300,000 on the valuation date. The amount of the matrimonial home does not, in fact, make any significant difference because it was jointly owned and accordingly the value equally attributed cancels out in the final analysis.
[12] With respect to the Honda motorcycle, I fixed that amount at $1800 based on the initial financial statement prepared by the respondent. It is a used motorcycle and the applicant provided no additional evidence with respect to its value. The used snowmobiles were also fixed in the amount of $600. The parties agreed that the freezer was worth $200. The applicant initially included in her financial statements the value of the truck, lawnmower and vehicles at $3500. I have set the value of the truck at $1500 and the value of the lawnmower at $2000 as claimed by the respondent. Hunting equipment I’ve fixed at $2000. The applicant asserted significant value for tools, however, she admitted in her evidence that she has no knowledge with respect to the value of tools. The respondent claimed the value of the tools to be $500. The chainsaw is put in at the value of $520 which is the value of the receipt.
[13] The applicant has Westjet stock which she claimed at $2000 in her initial net family property statement. With respect to jewelry, she acknowledged the value of a ring at $400.
[14] With respect to the respondent’s bank accounts, I have reviewed the exhibits and I fix the balance of the respondent’s e-savings account as at April 21, 2014 at $1161.95. The US dollar account as at April 21, 2014 is $11,420.53.
[15] It is now acknowledged by the parties that the applicant’s life insurance is valued at $39,195. The respondent had a pension with Bristow. The applicant sought further details about the pension. The respondent requested a valuation but none was received before the trial. The respondent only worked for a little over one year at Bristow. In the circumstances I fix the value of the pension at $15,891.08. In addition, the respondent had a $500 RRSP which was claimed.
Total Debts and Liabilities on the Valuation Date
[16] The mortgage debt as of the valuation date is split evenly between the parties. The line of credit was approximately $15,000 on April 21, 2014. On the line of credit, I note the applicant took $15,390.17 and an additional $5,000 on April 22; $5,000 on May 22; and, $1,389.28 on November 19, 2014. The respondent took $15,787.22 for income tax and $5,000. The income tax was a personal debt of the respondent and accordingly must be credited to him in determining who took what from the line of credit. Following the date of separation, the applicant took $21,779.45 and the respondent took $20,787.22. Therefore in the final analysis the applicant owes the respondent $992.23 as the additional amount that she took from the line of credit.
[17] In addition to the line of credit, the applicant had an OSAP debt of $10,000 on the valuation date. The respondent had an RBC Visa due of $408 on the valuation date. Based on this analysis, the equalization payment is calculated as follows:
TOTAL ASSETS ON VALUATION DATE
Applicant
Respondent
Matrimonial Home
150,000.00
150,000.00
Motorcycle
1,800.00
Snowmobiles
600.00
Freezer
200.00
Dodge Truck
1,500.00
Lawn Mower
2,000.00
Hunting Equipment
2000.00
Tools
500.00
Chain Saw
520.00
WestJet Stock
2,000.00
Jewelry (ring)
400.00
Bank Accounts
E-Savings
1,161.95
USD Account
11,420.53
Pension – Bristow
15,891.08
RBC – RRSP
500.00
Life Insurance
39,195.00
Value of Property Owned on VD
191,595.00
188,093.56
TOTAL VALUE OF DEBTS AND LIABILITIES ON VALUATION DATE
Mortgage
90,053.95
90,053.95
Line of Credit
7,649.21
7,649.21
OSAP
10,000.00
RBC – Visa
408.00
Total Value of Debts & Liabilities
107,703.16
98,111.16
NET VALUE OF PROPERTY OWNED ON VD
83,891.84
89,982.40
[18] On the basis of the values as I have found them to be, the respondent owes the applicant an equalization payment of $3,045.28.
Procedural History
[19] The application was issued July 17, 2014. An answer was filed on November 3, 2014. On January 15, Maddalena J. ordered the matrimonial home to be sold for $325,000 either to the respondent or it be listed for sale if he could not purchase. On February 4, 2015, Ramsay J. ordered the respondent to pay spousal support to the applicant on an interim without prejudice basis in the amount of $1,000 per month based on an imputed income of $40,000 to the applicant and $64,000 to the respondent. Costs were fixed in the amount of $1,500 payable by the respondent. On April 15, 2015, Maddalena J. dismissed a motion by the respondent and awarded costs of $400 payable by the respondent to the applicant. On March 7, 2016 Ramsay J. found the respondent in contempt for failing to list the home as ordered. On June 1, 2016 Ramsay J. made an order dealing with the contempt and allowing the applicant to amend the application. Costs were fixed in the amount of $750 payable by the respondent. On June 30, 2016 Maddalena J. awarded costs of the motion before her of $565 all inclusive, payable by the respondent. On July 20, 2016 I ordered the costs of a motion dealing with the sale of the matrimonial home left to the discretion of the trial judge. Therefore, the respondent is liable to pay costs in the amount of $2,715 as a result of motions in this matter to date.
Sale of the Matrimonial Home
[20] There was a significant delay on the part of the respondent in facilitating the sale of the matrimonial home. He was found in contempt by Ramsay J. for failing to list the home. On June 30, 2016 Maddalena J. made an order dispensing with the respondent’s signature to complete the sale of the property because the respondent had failed to sign the closing documents. The transaction did not close. On July 20, 2016 I made an order dispensing with the respondent’s signature for judicial sale of the property.
[21] The property was sold for $365,000. I have been provided with a trust ledger statement with respect to the sale (Exhibit 38). The trust ledger statement erroneously shows $360,351.83 received from the purchaser. There was a $5,000 deposit and the total amount received was $365,351.83. After payment of legal fees associated with the transaction (not including the legal fees for the transaction which did not close on June 30), outstanding taxes and real estate fees, the net proceeds of sale, before deductions were paid to the Ontario Legal Aid Plan and the Family Responsibility Office, was $97,909.51. Therefore, each party would notionally receive $48,954.76 from the sale.
[22] The Legal Aid lien in the amount of $23,892.54 should be deducted from the applicant’s share because no costs have been awarded as yet. The $1,763.37 for legal fees related to the transaction that did not close is the responsibility of the respondent. The $17,193.82 paid to the Family Responsibility Office for arrears of spousal support made pursuant to the order of Ramsay J. should also be deducted from the respondent’s share.
[23] The equalization of net family property is designed to share equally the economic benefits of the relationship to the date of separation. Both spouses share equally in the economic success (or failure) of the relationship. In this case, there was only a modest economic success. The net family properties of each is modest.
Spousal Support
[24] Orders for spousal support under the Family Law Act are addressed in section 33(8) and (9) which read, as follows:
(8) An order for the support of a spouse should,
(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;
(b) share the economic burden of child support equitably;
(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and
(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home). R.S.O. 1990, c. F.3, s. 33 (8); 1999, c. 6, s. 25 (5); 2005, c. 5, s. 27 (9).
(9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,
(a) the dependant’s and respondent’s current assets and means;
(b) the assets and means that the dependant and respondent are likely to have in the future;
(c) the dependant’s capacity to contribute to his or her own support;
(d) the respondent’s capacity to provide support;
(e) the dependant’s and respondent’s age and physical and mental health;
(f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;
(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
(h) any legal obligation of the respondent or dependant to provide support for another person;
(i) the desirability of the dependant or respondent remaining at home to care for a child;
(j) a contribution by the dependant to the realization of the respondent’s career potential;
(k) Repealed: 1997, c. 20, s. 3 (3).
(l) if the dependant is a spouse,
(i) the length of time the dependant and respondent cohabited,
(ii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,
(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,
(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,
(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support,
(v.1) Repealed: 2005, c. 5, s. 27 (12).
(vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and
(m) any other legal right of the dependant to support, other than out of public money. R.S.O. 1990, c. F.3, s. 33 (9); 1997, c. 20, s. 3 (2, 3); 1999, c. 6, s. 25 (6-9); 2005, c. 5, s. 27 (10-13).
Entitlement to Support
[25] The issue of entitlement requires an analysis of the factors set out in section 33(8) of the Act. There are three categories of support:
(1) Compensatory,
(2) Non-compensatory (needs based), and
(3) Contractual.
[26] The compensatory nature of support is recognized as the spouse’s contribution to the relationship and the economic consequences of the relationship with the spouse. In this case, there is no economic burden associated with child support. The court is to make fair provision to assist the spouse to become able to contribute to his or her own support and also to relieve financial hardship.
[27] It is necessary to examine the circumstances of each party.
[28] The applicant worked for her father in the family business for 10 years. She studied to be a travel agent. She has now obtained the designation of a PSW. She has enrolled in the RPN course. The applicant has not continued with the course, as a result of her involvement in these court proceedings. She has studied massage and reflexology. She has also worked in retail.
[29] In the last four years, the applicant’s reported income was as follows: 2011, no income; 2012, $7,028.61; 2013, $2,076.10. The applicant was attending school in 2011 and has been in school in 2014 again for her RPN course. She has not been working full-time for some significant period.
[30] The respondent had a varied work experience. He worked for the applicant’s father and then for her brother. In 1999, at the age of 33, the respondent decided to become a helicopter pilot. He took the necessary flight training. It cost about $35,000. It was his evidence he borrowed the money and it was repaid. He also worked during the time he was taking the training. The applicant indicated that she was working at that time and also assisted in paying the $35,000 fee. The course was four months. Following the initial course, the couple moved to Alberta. While in Alberta, the applicant worked for a travel agency. The respondent flew helicopters.
[31] The financial information provided shows that the respondent’s income was as follows: 2011, $94,418; 2012, $36,759; 2013, $80,817; 2014, $54,509; 2015, $1,666.
[32] It is clear on the evidence that from 2000, the respondent was earning more income than the applicant.
[33] The respondent’s income in the last few years was significant. However, the respondent was doing high-risk work for good pay.
[34] After the separation, the respondent ceased working. His evidence was that he felt it was unsafe for him to fly given the stress and anxiety he was experiencing as a result of the marriage breakdown. He visited a doctor and was advised, based on his psychological condition, that it would not be appropriate for him to fly. The respondent requested a leave of absence from Bristow which was denied.
[35] The respondent received counseling commencing in August 2014. He produced a report from Dennis J. Walker, M.S.W., who described the situation in which he found the respondent in November of 2014. Mr. Walker stated:
Mr. Dayman is not making much progress in dealing with this separation. He is not sleeping, obsesses and gathers documentation about what is happening, chain-smokes and is at a complete loss as he sees himself as having little control over the outcome of the separation. One positive aspect is that he has not used alcohol to deal with all this...
He has dealt with me in an undefended, open manner – constantly asking if he is on the right track. He is not at all insightful and has not formally completed high school [although he does have a high school equivalency diploma]. He is psychologically naïve with an unsophisticated, rigid, black and white view of the world. With this, he sees himself as being treated unfairly and his undertaking of extremely high-risk work as having come to nothing. As a result, he obsessively goes over the details of what went wrong.
[36] In dealing with his having left his job, Mr. Walker noted:
He is exhibiting agitation, sleeplessness, obsessive thinking and an overwhelming sense of futility and betrayal. Based on that information, it was determined by medical authority that Mr. Dayman ought not to fly a helicopter. At the present time, he no longer has a licence.
[37] Having observed Mr. Dayman for five trial days and also in the context of a pretrial motion, it is evident that the assessment of Mr. Walker is apt. He does appear obsessed with this matter. He has difficulty organizing his thoughts. He appears distracted and disorganized. However, over the course of the trial he was able to adequately present his case, lead evidence, cross-examine the applicant and make submissions. Given his state of mind, I am satisfied that Mr. Dayman could not safely operate a helicopter at this time. I am also satisfied that after this case is resolved, Mr. Dayman could either go back to flying helicopters or do maintenance on helicopters after he finishes his course.
[38] Mr. Dayman’s position was he undertook the high-risk work of flying helicopters in Africa to earn money to allow the applicant the opportunity to go back to school and complete her RPN training. He made significant payments on the matrimonial home mortgage. Once that was accomplished, he could do less risky work and fly in the area earning approximately $50,000 per year. She could earn $50,000 per year. They would have the house and he could have a dog. The breakdown of the marriage does not allow the scenario to unfold.
[39] In this case, there is not really a basis for compensatory support. The applicant and the respondent both worked and went to school during this long relationship. There were no children. When they moved to Alberta, the applicant continued to work in her chosen field as a travel agent. This has been a long-term relationship and since at least 2000, the respondent has earned significantly more money than the applicant. Given the long-term relationship and the needs of the applicant, I am satisfied that it is appropriate for spousal support to be paid by the respondent to the applicant for an indefinite period.
Quantum of Support
[40] The applicant has asserted the respondent worked for the Region of Niagara. The respondent denies working for the Region. This is based on entries in the joint bank account from the Region of Niagara. I note the applicant received social assistance. There was no evidence which could clarify the amounts of these payments into the joint account. It is likely that the payments were for the applicant’s social assistance. I make no findings with respect to these payments in this decision. In my view, they are not appropriately considered in determining the income of the parties or their ability to earn income.
[41] I am satisfied it is necessary to impute income to both the applicant and the respondent in order to calculate the appropriate spousal support award. This is necessary because neither party is presently working. Each could work. Each is attempting to retrain by going back to school. The applicant hopes to earn significant income as an RPN. It was suggested she could earn up to $65,000 per year as an RPN. I am satisfied that the applicant has a present ability to earn income with a combination of her PSW work and the other skills that she has in the amount of $35,000. This is based on the evidence provided with respect to income from PSWs and also an understanding that the applicant has some additional skills for which she could receive compensation.
[42] The applicant was working in a high risk environment in Nigeria. He is not required to continue in high risk work after separation. The high risk work was undertaken as part of a plan which will not now happen. The applicant is retraining to work maintaining helicopters. I am satisfied the respondent could earn $50,000 per year flying helicopters locally. This is based on the evidence about his potential income as a pilot. It is also based on his potential income as a mechanic. It is also the amount he said he could earn by flying helicopters locally as part of the plan.
[43] The calculation for spousal support, based on the spousal support guidelines, on the basis of $50,000 for the respondent and $35,000 for the applicant ranges from a low of $469 to a high of $580 per month. In my view, it is appropriate to award spousal support near the low end of the range. The applicant can work. The respondent’s income is not extremely high. The respondent shall pay to the applicant spousal support fixed in the amount of $500 per month.
[44] It is appropriate to award spousal support retroactive to the date of separation. The support would commence on May 1, 2014. The respondent acknowledged the need for support and made payments to the applicant immediately after the date of separation. He will receive credit for those payments. The total of support for May 1, 2014 to November 1, 2016 – 31 months is $15,500.
[45] Justice Ramsay ordered interim support in the amount of $1,000 per month commencing March 1, 2015. The order of Justice Ramsay was on an interim basis made without the benefit of a full trial. The order of Justice Ramsay is set aside. The applicant has received $17,193.82 on account of spousal support. The spousal support has been overpaid. The applicant acknowledges that the respondent paid $4,000 to her in June and July 2014. This will be credited to the spousal support arrears. Therefore, the applicant must repay $5,693.82 to the respondent on account of overpayment of spousal support.
[46] In the final result, there will be an order which distributes the proceeds of the sale of the matrimonial home, which takes into account the amounts owing between the parties. The respondent owes the applicant an equalization payment of $3,045.25, and the costs award of $2,715 for a total of $5,760.25. The applicant owes the respondent for overpayment of spousal support the sum of $5,693.82 and also $992.23 as the additional amount that she took from the line of credit, for a total of $6,686.05. Therefore the applicant owes the respondent a net amount of $925.80.
[47] Proceeds of the sale of the matrimonial home are notionally $48,954.76 for each of the parties. The applicant is entitled to receive, after the deduction for the Legal Aid lien of $23,892.54, the sum of $25,062.22. After deduction for the spousal support of $17,193.80 and the legal fees of $1,763.37, the respondent is entitled to receive $29,997.59. However, as outlined above, the applicant must pay to the applicant $925.80. Therefore, the applicant is to receive from the proceeds of the matrimonial home $24,136.42 and the respondent is to receive $30,923.39.
Order
[48] In the result, there will be an order as follows:
(1) The respondent shall pay to the applicant spousal support in the amount of $500 per month commencing May 1, 2014 based on an imputed income of $35,000 per annum for the applicant and $50,000 per annum for the respondent.
(2) The applicant shall receive $24,136.42 from the proceeds of the sale of the matrimonial home held in trust by Donald K. Johnston.
(3) The respondent shall receive $30,923.39 from the proceeds of the sale of the matrimonial home held in trust by Donald K. Johnston.
(4) The arrears of spousal support to November 1, 2016 have been satisfied by this order and there are no outstanding arrears as of the date of this order.
(5) Support deduction order to issue.
[49] If the parties are unable to agree on costs, or if there are any issues arising out of my calculations as contained in these reasons, the parties may arrange a date to appear before me through the trial coordinator in Welland.
Sweeny J.
Released: November 25, 2016
CITATION: Martin v. Dayman, 2016 ONSC 6622
COURT FILE NO.: (Welland) 9418/14
DATE: 2016-11-25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Kimberly Ann Martin
Applicant
- and -
Peter William Dayman
Respondent
REASONS FOR JUDGMENT
PRS:jl
Released: November 25, 2016