Arthur v. Arthur, 2016 ONSC 6795
COURT FILE NO.: 5388/15
DATE: 2016-11-02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Dawn Diane Arthur Applicant
– and –
Lorne Wayne Arthur Respondent
COUNSEL:
Kathleen P.M. Bingham, for the Applicant
Self-Represented Respondent
HEARD: October 29, 2016
THE HONOURABLE MR. JUSTICE A. PAZARATZ
[1]. This was a one day spousal support trial.
[2]. The background:
a. The Applicant wife is 58 years old.
b. The Respondent husband is 55.
c. The parties were married July 21, 1979.
d. They separated on March 1, 2014.
e. It was a 34 year marriage.
f. They had two sons, Christopher now age 32 and Alexander now age 30.
g. Upon separation the parties were residing in a jointly owned home. The Respondent moved out but continued to pay carrying costs until the home was sold on May 31, 2015. He paid no separate monies as “spousal support” during this period.
h. Following separation the Respondent made three individual spousal support payments of $1,200.00 in June 2015; $1,000.00 in July 2015; and $1,100.00 in August 2015. He would not have been entitled to tax deductibility with respect to these payments.
[3]. On November 6, 2015 the parties executed a partial separation agreement which resolved all issues other than spousal support. At the outset of this trial the Respondent acknowledged that the Applicant’s entitlement to spousal support was not disputed. The only issue for me to determine was quantum of support (and retroactivity).
[4]. On April 8, 2016 Justice Lafreniere made a temporary order at a contested motion:
a. Respondent to pay to Applicant spousal support in the sum of $1,940.00 per month, commencing April 1, 2016, based upon the Applicant’s current income of $9,628.00; the Respondent’s current income of $62,837.00; and the mid-range calculation under the Spousal Support Advisory Guidelines.
b. This was without prejudice to the Applicant’s claim for support from the date of separation.
c. Respondent to pay costs of $850.00 inclusive of disbursements and HST, payable immediately and subject to a SDO as they relate to support.
d. Support Deduction order to issue.
[5]. At the outset of the trial, the Applicant’s counsel summarized the order being sought.
a. $1,944.00 per month spousal support commencing November 1, 2016, based upon the Applicant’s 2015 income of $9,628.00 and the Respondent’s 2015 income of $62,948.00.
b. Retroactive spousal support in the sum of $1,940.00 per month between March 1, 2014 and March 31, 2016, less adjustments for some monies the Respondent paid toward their home up to the date of sale; less the three voluntary support payments he made in the summer of 2015; and netted down to adjust for the loss of tax deductibility.
c. There is $25,625.23 being held in trust from the sale of the matrimonial home. Those monies are presumptively half owing to each party. The Applicant asks that she receive the entire net proceeds, which would satisfy part of the retroactive support owing by the Respondent. If this happens there would still be $6,076.88 owing, which the Applicant proposes the Respondent pay at the rate of $200.00 per month.
d. The Applicant requested that the Respondent secure spousal support by naming the Applicant as beneficiary of his life insurance.
e. An annual disclosure clause.
[6]. At the outset of the trial, the Respondent summarized the order he was seeking.
a. He did not dispute that his 2015 income of $62,948.00 should apply.
b. He did not dispute that the Applicant’s 2015 income was $9,628.00.
c. However, he proposes that income should be imputed to the Applicant in the sum of $19,000.00 per year. He said the Applicant has the ability to work more and earn more income. Really, that’s what this trial was all about.
d. He doesn’t want to pay any retroactivity.
e. He indicated there was no need to deal with life insurance because it is already provided for in the separation agreement. In this respect I note that section 6.4 of the agreement appears to deal with an ongoing life insurance obligation.
[7]. The Applicant presented two separate Spousal Support Advisory Guideline calculations, which were not disputed by the Respondent.
a. Applying the Applicant’s proposed income figures, the spousal support range (on an indefinite basis) would be:
$1,666.00 low;
$1,944.00 mid;
$2,085.00 high.
b. Applying the Respondent’s proposed income figures, the spousal support range (on an indefinite basis) would be:
$1,373.00 low;
$1,602.00 mid;
$1,726.00 high.
[8]. The Applicant proposed precisely the mid-range number for spousal support.
[9]. The Respondent proposed that he pay spousal support in the sum of “not more than $1,000.00 per month”, even though that figure is well below the low end of the SSAG range, even if he is successful in having income imputed to the Applicant.
[10]. The Applicant’s background:
a. She met the Respondent when she was 18.
b. She does not quite have her high school education. She is a half credit short of her grade 12.
c. During high school she took a dental assistant course, but this did not result in any formal accreditation. After finishing the course she worked four months in a dental office as a dental assistant/receptionist. She would not now be able to pursue employment as a dental assistant without obtaining current certification.
d. In about 1980 she worked for approximately eight months intermittently at a daycare center, 12 hours per week. She rode school buses to make sure children got off at the appropriate stops.
e. She was then a full-time housewife and homemaker, assuming primary responsibility for raising the parties’ two children.
f. She returned to the workforce in about 1993 when the children were six and four. She worked one evening a week for a chiropractor as receptionist. This was the only employment she held outside of the home until about 1999 when she went to work for a second chiropractor. Again it was a part-time reception position. It lasted about a year, entailing 13 hours per week, spread over portions of three days.
g. In 2001 she commenced her current employment at Fortinos on a part-time basis. She remained there until 2012 when she had to go off work for about one year after suffering a concussion. She returned to work in May 2013, working three shifts per week.
h. In 2013 her total income was $7,595.00.
i. In 2014 her total income was $8,328.00.
j. In 2015 she was able to take on a fourth shift, increasing her annual income to $9,626.00.
k. She works Tuesdays and Wednesdays, four hours per day. On those days she checks the dates of products in the grocery store, and removes outdated products from the shelves. It involves a lot of physical lifting, turning, and putting things away.
l. She also works Thursdays noon until 6 p.m. 6:00 p.m. and Fridays 4:00 a.m. to 9:30 a.m.. On those days she deals with advertisements and pricing of products.
m. In total, she works 20 hours per week. This is the most she has ever worked outside of home since the parties were married. She does not have additional hours available to her at Fortinos.
[11]. The Applicant and her family physician Dr. Margaret Goodacre both testified about the Applicant’s medical problems.
[12]. The Applicant has epilepsy.
a. It was diagnosed in her mid-teens.
b. She said it took a while to sort out the right medications to prevent seizures.
c. She is currently on a combination of two medications.
d. She will be seeing a hematologist this year. At some point in the future her medication may have to be adjusted. But for quite some time now her epilepsy has been under control and she has been seizure free, so long as she takes the medications.
[13]. The Applicant has experienced Post-Concussive Syndrome in relation to her April 2012 concussion:
a. Dr. Goodacre said the Applicant experienced problems with headaches, light sensitivity, dizziness, fatigue, and impaired concentration.
b. The Applicant testified she still experiences these symptoms.
c. She said she gets headaches every day. They vary in degree. The headaches are much worse on Thursdays when she has to concentrate on pricing products. She said Fridays are not good either.
d. She experiences a lot of fatigue from the 20 hours she works each week, particularly since her start times vary.
e. She continues to see a neurologist regarding her headaches.
f. Dr. Goodacre testified no further treatment for these symptoms has been offered or suggested to the Applicant.
[14]. The Applicant also experiences musculoskeletal problems:
a. Joint pain.
b. Weakness of the elbows.
c. She has been seeing a physiatrist who recently gave her an injection.
[15]. The Applicant testified she also suffers from osteoporosis and carpal tunnel syndrome.
[16]. The Respondent’s cross-examination on the medical issue was brief and yielded very little:
a. He confirmed that the Applicant has had epilepsy since childhood and with medication it has remained unchanged for a number of years.
b. He suggested the Applicant might have been able to work briefly as an extra on a TV show, during the time she said she was off from Fortinos while recovering from the concussion.
[17]. Although the Respondent vaguely challenged the Applicant’s assertion that she assumed complete responsibility for certain child-rearing functions during the relationship, he did not fundamentally challenge her assertion that during this lengthy marriage they delegated roles:
a. She was primarily a homemaker and caregiver for the children.
b. He was always the primary if not sole breadwinner for the family. At times they had help from the Applicant’s mother, who lived with them for a period of time and contributed to the acquisition of the matrimonial home.
[18]. The Applicant described the Respondent’s employment history:
a. On the date of marriage, the Respondent was still in college and they were living with her parents.
b. Between 1980 and 1993 he worked full time in a plastics factory.
c. In 1993 he switched to another full time position, making plastic pallets. He remained there until the factory closed in 2010.
d. He was off work briefly, but in either 2010 or 2011 he obtained his current job full time job where he makes plastic bottle caps for the food industry.
[19]. As stated, the Respondent acknowledges the Applicant’s entitlement to spousal support.
a. He did not dispute the Applicant’s characterization that her entitlement is both needs- based and compensatory.
b. Based upon the responsibilities the parties assumed during this lengthy relationship; the “traditional” delegation of roles; the employment and career opportunities which the Applicant sacrificed by remaining out of the workforce; and the respective economic advantages and disadvantages directly related to the marriage – I have no hesitation in concluding the Applicant’s entitlement to spousal support includes a very strong compensatory component.
[20]. The primary issue in this case is the determination of the Applicant’s income. The Respondent submits her income should be imputed at double the $9,626.00 she earned in 2015. I disagree.
a. The Applicant has limited employment experience, and limited marketability in the workforce, directly as a result of the joint decision of the parties that she would either be a stay at home mother or – at best – work on a very limited basis outside of the home.
b. Her part-time employment at Fortinos is consistent with the type and volume of work the Respondent deemed to be appropriate prior to the date of separation.
c. She has continued her employment since separation, and modestly increased her hours at Fortinos.
d. The essence of imputing income is “reasonableness”. Is the spouse making reasonable efforts to maximize their income prospects, having regard to their legal obligation to provide for their own support; and also having regard to their age, education, skills, work experience, health, and the availability of employment.
e. Even without her health limitations, I would be reluctant to impute income to the Applicant. She answered questions about her employment efforts and activities in a straightforward and completely believable manner. She has a job earning $14.14 per hour working 20 hours per week. It appears to be demanding employment, spread over four shifts per week, one of them starting at 4:00 a.m. I accept her evidence that she is unable to obtain more hours at Fortinos. I received no evidence that would suggest that in all the circumstances the Applicant would be able to find significantly more remunerative employment, working elsewhere or juggling multiple part-time jobs.
f. I accept, however, the evidence of the Applicant and her doctor that the Applicant has a combination of serious health issues which impact on her ability to even do the work she’s currently managing. While her epilepsy may be controlled by medications, her post-concussive syndrome and musculoskeletal problems remain a very real limitation in her daily life.
g. The determination of whether income should be imputed need not entail a microscopic analysis of every employment decision a person makes. All of the many relevant considerations need to be viewed in an overall context. Are we dealing with someone who is trying hard – as hard as they can reasonably be expected to try? Or are we dealing with someone who could obviously be doing more to generate an income?
h. I have no hesitation in concluding that the Applicant is making reasonable efforts to generate as much income as she can.
[21]. Neither party focussed heavily on the respective financial statements and budgets filed. Both of them are living modest lifestyles. They have liquidated their savings, and the Applicant has used up a small inheritance she received from her mother.
[22]. Upon considering all of the objectives of section 15.2 of the Divorce Act, and the relevant SSAG considerations, I find that spousal support in the sum of $1,750.00 per month is reasonable. In a long-term relationship with a strong compensatory component to spousal support, ordinarily a figure toward the higher end of the SSAG range would be appropriate. However, I have endeavoured to balance need and ability to pay, while attempting to leave both parties with similar lifestyles.
[23]. The Respondent certainly submitted no evidence which would even remotely support his suggested figure of approximately $1,000.00 per month.
[24]. With respect to retroactivity, I am not prepared to order that spousal support payments commence on March 1, 2014, the date of separation.
a. For the period between March 1, 2014 and May 31, 2015 the Respondent made significant payments in relation to the jointly owned matrimonial home. The Applicant proposes that he should only receive credit for perhaps $1,085.00 per month, since the balance of his payments should be attributed to his own obligation as a co-owner.
b. While that rationale makes sense, there are additional considerations including the fact that the Respondent received no tax deductibility for those payments; and during that period the Applicant had the benefit of residing in the matrimonial home, while the Respondent had to incur expenses securing and relocating to new accommodation.
[25]. However, once the house was sold the Respondent had absolutely no excuse for making only a handful of inadequate spousal support payments, and then paying nothing until the Applicant was finally able to secure the April 8, 2016 order.
[26]. My order:
a. The Applicant is entitled to spousal support on both a compensatory and non-compensatory basis.
b. The Respondent shall pay to the Applicant spousal support in the sum of $1,750.00 per month commencing June 1, 2015, based upon the Applicant’s 2015 income of $9,628.00 per year, and the Respondent’s 2015 income of $62,948.00.
c. The Respondent shall receive credit for having made payments of $1,200.00 in June 2015; $1,000.00 in July 2015; and $1,100.00 in August 2015; and also credit for any payments made pursuant to the temporary order of April 8, 2016.
d. The parties shall re-file their 2015 tax returns if necessary, to ensure that the Respondent is able to claim tax deductibility with respect to the 2015 payments.
e. Any retroactive payment owing by the Respondent shall be paid from the Respondent’s one-half share of the net proceeds of sale from the former matrimonial home, forthwith. If any retroactive balance remains outstanding, the Respondent shall repay the balance at the rate of $150.00 per month.
f. The Applicant’s half of the net proceeds of sale from the matrimonial home shall be released to her forthwith.
g. If any portion of the Respondent’s half of the net proceeds of sale remains after payment of the aforementioned retroactive spousal support order, those funds shall continue to be held in trust until the issue of costs is determined.
h. The parties shall exchange on an annual basis copies of their income tax returns and notices of assessment, by June 30, commencing June 30, 2017.
i. Support deduction order to issue.
[27]. If either party wishes to address any issue other than costs (including whether life insurance provisions in the separation agreement should be incorporated in an order) they should contact the trial co-ordinator to arrange a mutually convenient time to appear before me.
[28]. If only the issue of costs needs to be addressed, written submissions shall be filed on the following timelines:
a. Applicant’s submissions to be served and filed by November 21, 2016.
b. Respondent’s submissions to be served and filed by December 9, 2016.
c. Any reply submissions by Applicant to be served and filed by December 19, 2016.
d. These timelines may not be extended by the parties.
Pazaratz, J.
Released: November 2, 2016
CITATION: Arthur v. Arthur, 2016 ONSC 6795
COURT FILE NO.: 5388/15
DATE: 2016-11-
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Dawn Diane Arthur Applicant
– and –
Lorne Wayne Arthur Respondent
REASONS FOR JUDGMENT
The Honourable Mr. Justice A. Pazaratz
Released: November 2, 2016