CITATION: Fernando v. Piraisoody, 2017 ONSC 6348
OSHAWA COURT FILE NO.: FC-16-689
DATE: 20171023
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Shalini Fernando
Applicant
– and –
Balakumaran Piraisoody
Respondent
R. Shulman, for the Applicant
P. Mahdi, for the Respondent
HEARD: May 19, 23, and 24, 2017
REASONS FOR JUDGMENT
ROWSELL, J.
[1] The parties resolved many of the issues on consent. The issues remaining for trial were the Applicant’s claim for retroactive child support, and the Applicant’s claim for retroactive and ongoing spousal support.
[2] The Applicant is 42 years of age, and the Respondent is 36 years of age. The parties have two children, Josh, age eight, and Zoe, age four. The parties married August 23, 2008, and separated December 29, 2015.
[3] The Applicant was employed as a Customer Service Representative during the marriage, but left that employment in 2011. The Respondent is a First Class Constable with the Metropolitan Toronto Police Services. The Respondent earned $110,428 in 2016.
[4] At a motion on February 9, 2017, Nicholson J. made an order for support as follows:
[15] Until the matrimonial home is sold and commencing February 1, 2017, the respondent father will pay to the applicant mother child support in the amount of $1,615 per month based upon the respondent’s 2015 line 150 income of $116,285 pursuant to the Child Support Guidelines and spousal support in the amount of $1,770 per month representing the mid-range on the Spousal Support Advisory Guidelines based upon the same income. There is no present need for an order that the respondent father pay section 7 expenses for the children. No specific expenses were claimed at this point. This issue can be left until trial.
[16] The applicant mother will assume responsibility for all utility expenses of the home as of February 1, 2017. She will also be responsible for paying one-half of the mortgage payment, property taxes and home insurance as of February 1, 2017. The respondent father will be responsible for paying the other half of the expenses for mortgage, property taxes and home insurance as of February 1, 2017. He lives rent free with his current partner and can afford this presently.
[5] While Nicholson J. made an order that the Respondent pay child support in the amount of $1,615 per month and spousal support in the amount of $1,770 per month, he did not make an order for s. 7 expenses.
[6] The parties settled the issue of ongoing child support. The Respondent agreed, on a final basis, to pay the table amount for the children of $1,525 per month commencing May 1, 2017, based on his income of $108,887, adjusted according to the Child Support Guidelines, O. Reg. 391/97. The parties have agreed that the Applicant will have custody of the two children, with the Respondent having access.
[7] The issues of retroactive child support, and retroactive and ongoing spousal support remain outstanding. It is the Applicant’s position that the Respondent underpaid his share of the matrimonial home’s expenses and therefore underpaid his support obligations with respect to his share of expenses. The Applicant seeks a lump sum to cover the outstanding retroactive child and spousal support. The Respondent seeks a credit for the amounts that he has paid.
[8] The parties provided a chart of expenses, which was marked as an exhibit. Counsel agreed to most of the expenses, save and except the Fido expenses for January, February, and March, and the police line of credit payments from January and ongoing. There is an issue of the use of the Costco credit card. The Respondent also claims other expenses for which he wishes to be credited.
[9] It is the position of the Applicant that she has a strong claim to compensatory support, and that it should be between the mid and high range. The Respondent takes the position that the Applicant does not have a strong case for compensatory support, and he cannot afford to pay spousal support in the upper range.
[10] When the Applicant met the Respondent, he was focused on becoming a Police Officer and a Detective. However, the Respondent had bad credit and a poor driving record, so he needed to improve his credit history and wait three years for his driving record to improve. In the meantime, the Respondent obtained a job as a security guard, and later became a supervisor in that field. Eventually, he got a job with the Ontario Lottery and Gaming Corporation working part time in conjunction with his other security job.
[11] In 2005, he started preparing for police testing. He studied the materials and did the test in 2007. During this time, he was living with his parents. While the Applicant stated she assisted the Respondent in preparing his application for the police department, the Respondent disagreed.
[12] The Respondent and Applicant married in August 2008. After the birth of their first child, Josh, the Applicant was on maternity leave from September 2009 to September 2010. When she returned to work after the maternity leave for Josh, she found it very difficult. The Applicant had been working downtown, traveling to the Yonge and St. Clair area from Ajax, where she would drop off the child, Josh, at her parents’ for daycare before work. The Applicant subsequently left her employment on stress leave in March 2011. The second child, Zoe, was born in May 2012.
[13] During the marriage, the Applicant was home with the children for over five years. It is the Applicant’s position that she left her employment because she and the Respondent made a joint decision that her staying at home full time to take care of the children was best for the family. The Respondent had told her that he could do pay duties to make up for the loss of her income stream.
[14] It is clear from the evidence that the Applicant has had various career aspirations over the years. She did at one point prior to marriage attend York University, however, did not obtain any credits. She attended at Michener College as well to become a laboratory technician. She did not complete that course either. At one point she wanted to become a dietician. She did investigate becoming a real estate agent.
[15] During the marriage, childcare was primarily the Applicant’s responsibility, and the Respondent’s involvement with the children was limited. The Applicant described the Respondent as not having had a consistent schedule, which consisted of lots of night work and overtime. It is her position that the Respondent worked long hours, and as a result he did not equally contribute to the care of the children. The Respondent, in his evidence, stated in his view it was the responsibility of the female to take maternity leave and stay home full time to care for the children.
[16] The Applicant said that the Respondent also complained he was stressed at work, and that she supported him emotionally. The Respondent acknowledges he did not manage his stress during his marriage.
[17] It is the Respondent’s position that the Applicant did not assist him in his employment as a police officer. Moreover, he says he did not agree to the Applicant not working. He wanted her to find something she was happy to do. She had talked about advancing as a Customer Service Representative Supervisor Manager to an Underwriter.
[18] It is clear from the evidence that the parties struggled financially during the marriage. The Respondent talked about the struggle with their debt obligations. In order to pay bills, the parties remortgaged the matrimonial home in 2012, which they had purchased in 2010, and then took out a $25,000 second mortgage in 2013. In 2014, they took out a $10,000 loan from the Police Credit Union to pay debts, and he earned $10,000 in pay duties in 2016. It was the Respondent’s view that he did not have a choice about working pay duties. He needed to do that to deal with the family’s financial difficulties. In his view, the parties had decided that the Applicant needed to find a job where she earned what she would earn if she went to school. He said he decided he would do pay duties until the Applicant figured out what she could do.
[19] After the date of separation, the Applicant continued to reside in the matrimonial home. The Respondent resided first with his parents, and then with his girlfriend, who is the mother of his recently born son.
[20] After separation, the parties’ financial struggles worsened. The payment of bills for the home was frequently late. There were threats to terminate services. The Ford F-150 truck that the Applicant was driving after separation was returned by the Respondent to Ford. The Applicant was left without a vehicle.
[21] Both parties’ debts have increased after separation. The Applicant has changed the limit on her credit card several times, up to $6,500. One of the lines of credit at the Police Credit Union has increased significantly as well. The Applicant has needed help coping. She was treated by both her doctor and psychiatrist, and she is on medication for depression.
[22] Since the date of separation, the Applicant has not made any applications for employment. However, it is clear that the Applicant was in no position to plan her future until the matters of support and the home were resolved. Given the fact that the vehicle she was using was removed from her, and her childcare responsibilities, she was not able to actively search for employment.
[23] From the evidence, it appears that Josh is speech delayed and needs ongoing therapy. Sadly, the parties could not commence the speech therapy as the Applicant’s position was she could not afford to pay up front, and the Respondent did not offer to do so. This is despite the fact the Respondent’s benefit program covers up to $1200 in speech therapy per year. Josh would require two sessions per week for a total cost of $230.
[24] The Applicant did have the assistance of a retired teacher, who charged $25 per lesson, and this tutor helped Josh with his speech and his reading.
[25] The matrimonial home has been sold with a closing date of June 29, 2017. There was an issue over the delay selling the home. It did appear that the value of the home increased from the time of separation until the date of sale. Initially, the Applicant had hoped to be able to buy out the Respondent, however, that was not possible. The parties have agreed on a division of proceeds, save and except any payment for retroactive support
[26] After the sale of the matrimonial home closes, the Applicant’s plan is to purchase a home and stay in the Ajax area. She believes her mortgage would be $2,000 per month plus utilities. She hopes to rent out the basement apartment in this new residence.
[27] The Applicant’s current plan is to return to school and obtain a university degree, and then a certification as a Montessori teacher. While the Applicant had work in the insurance industry as a Customer Service Representative, she does not wish to return to that line of work. She does not believe that there is a long term future for her to advance in such a position. According to the evidence of the Applicant, she could expect an income of $50,000 as a Montessori teacher. According to her, she would not have difficulty finding employment in that role.
[28] It appeared that the Applicant had not thoroughly researched the qualifications required for entry into the Montessori Teaching Program. The Applicant has, however, been accepted at Trent University at the Oshawa campus to commence in September 2017. It is the Applicant’s plan to choose her courses around the children’s schedule, and commencing in September 2017 both children will be in school on a full time basis.
[29] During cross-examination, the Applicant was asked if she could work as a Customer Service Representative and still go to university part time. The Applicant’s response was that that would prolong the time to her becoming self-sufficient.
[30] The Respondent believes that the Applicant returning to university to obtain a post-secondary degree is a luxury the family cannot afford. The Respondent believes she could return to be a Customer Service Representative in the insurance industry and earn a good income. There is no evidence before the court, however, other than from the parties, as to any availability of employment in the insurance industry or otherwise. The Respondent stated that the first time he has heard about the Applicant wanting to be a Montessori School teacher was at trial.
[31] It is the Respondent’s position that he cannot afford to pay spousal support on the high end of the range. The Respondent stated that while he earns significant income, he has large pension contributions.
[32] The Respondent’s financial statement shows that his monthly gross pay is $9,202, or $3,446 net after all of the required deductions from his pay.
[33] He worked six days less pay duty in 2016 than he had in 2015. He says he cannot work as he used to.
[34] The Respondent does not have a car. He gets rides from his co-workers.
[35] The Respondent has a new partner, and they have a brand new child born January 3, 2017. The birth was unplanned. The Respondent resides with his partner, who earns $30,000 a year. However, she is on maternity leave presently. She has two children of her own and receives no child support.
[36] The Respondent owes money to his partner. He was paying rent at his parents’ by assisting with expenses. He believes he owes rent to his current partner, who owns her own home. His partner also took out a loan for $20,000 to help him with his legal fees.
[37] The Respondent acquired other life insurance after separation. He took out a term policy of $250,000 that costs approximately $25 per month. Children Zoe and Josh are beneficiaries of this policy, with the Applicant as trustee. His policy with the police is $180,000, and his new partner and child are the beneficiaries of that policy.
[38] The Respondent is unsure how he would be able to pay spousal support. He will have $120,000 left from the house, but the majority of that money will be used to pay debts, which he has accumulated through legal fees and other expenses. He has a proposed budget, but he says it is not realistic, and is all he can afford.
[39] The Respondent suggests that any support order be reviewed in two years.
[40] Chappel J. in Thompson v. Thompson, 2013 ONSC 5500, provided an excellent summary of the law in relation to spousal and support:
C. LEGAL PRINCIPLES RELATING TO SPOUSAL SUPPORT
- Legislative Framework
i. Statutory Factors: Section 15.2(4) of the Divorce Act
[43] Sections 15.2(1) and (2) of the Act set out the court’s jurisdiction to make either an interim or final order requiring a spouse to pay such spousal support as the court considers reasonable. Section 15.2(4) of the Act directs the court hearing a spousal support claim to take into consideration “the condition, means, needs and other circumstances of each spouse,” including:
a) The length of time the spouses cohabited;
b) The functions performed by each spouse during cohabitation; and
c) Any order, agreement or arrangements relating to support of either spouse.
[44] Section 15.2(5) establishes the principle that misconduct of a spouse in relation to the marriage is not a relevant consideration in a spousal support proceeding under the Act.
[45] Section 15.3 of the Act addresses situations where the court is considering claims for both spousal support and child support, and there is concern regarding a party’s ability to pay both at the appropriate levels. In these circumstances, section 15.3 directs the court to give priority to child support in determining the application.
[46] The court’s duty pursuant to section 15.2(4) of the Act to consider the parties’ “condition, means, needs or other circumstances” in carrying out the spousal support analysis is very broad and involves the exercise of a considerable amount of discretion. However, not every circumstance of the spouses will be relevant to the support analysis. The factors referred to must be interpreted in the context of the purpose of the spousal support provisions of the Act as articulated by the Supreme Court of Canada in Moge v. Moge, and are circumscribed by that purpose. As L’Heureux-Dube, J. emphasized in Moge, although marriage and the family provide an emotional and economic support system for family members, spousal support in the context of divorce “is not about the emotional and social benefits of marriage. Rather, the purpose of spousal support is to relieve economic hardship that results from the marriage or its breakdown,” and the focus of the analysis is therefore “the effect of the marriage in either impairing or improving each party’s economic prospects.” The condition, means, needs and other circumstances relied upon for the purposes of the support analysis must be relevant in some way to this purpose and focus.
[47] The “condition” of a spouse includes such factors as their age, health, needs, obligations, dependents and their station in life. A spouse’s “means” encompasses all financial resources, capital assets, income from employment and any other source from which the spouse derives gains or benefits. The assessment of the “needs” of a spouse should take into consideration the accustomed lifestyle of the spouse, subject to ability to pay. As the Ontario Court of Appeal stated in Rioux v. Rioux, “self-sufficiency is a relative concept; it relates to achieving a reasonable standard of living having regard to the lifestyle the couple enjoyed during their marriage.” In considering the extent of a spouse’s need from this perspective, the court should take into account the joint income which the parties anticipated they would be able to enjoy as of the time of their separation.
ii. Statutory Objectives: Section 15.2(6) of the Divorce Act
[48] Section 15.2(6) of the Act sets out the objectives of a spousal support order as follows:
15.2(6) Objectives of Spousal Support Order - An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should:
a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[49] The Supreme Court of Canada has held that all of the statutory objectives set out in section 15.2(6) of the Act must be considered, since no single objective is paramount. However, trial judges have a significant amount of discretion to determine the weight that should be placed on each objective, based on the particular circumstances of the parties. With respect to the objective of promoting self-sufficiency, set out in section 15.2(6)(d) of the Act, the Supreme Court of Canada commented in general terms on the extent of a former spouse’s obligation to work towards self-sufficiency in Moge v. Moge, Leskun v. Leskun and L.M.P. v. L.S. It noted that although one of the objectives of the spousal support provisions of the Act is to promote the economic self-sufficiency of the spouses within a reasonable time, the Act stipulates that this goal only applies “in so far as practicable.” The Court held that there is no presumed duty on former spouses to achieve financial independence, and the extent to which they are expected to do so depends on the circumstances of the parties and the dynamics of the marital relationship in each particular case. It concluded that the wording of sections 15.2(6)(d) and 17(7)(d) (relating to variation proceedings) reflects a recognition that self-sufficiency may not be possible or practicable in some circumstances.
[50] In considering the objective of self-sufficiency, the court must also recognize that this concept is a relative one which must take into consideration the parties’ standard of living during the marriage. The Ontario Court of Appeal emphasized in Fisher v. Fisher and Allaire v. Allaire that self-sufficiency is not necessarily established when a former spouse is able to meet their basic needs; rather, it refers to a spouse’s ability to maintain a reasonable standard of living taking into account the lifestyle which the parties enjoyed during their relationship. Where one spouse has suffered economic disadvantage as a result of the marriage or its breakdown, the court must consider whether the other party can financially assist them so that the spouse can enjoy a lifestyle closer to that which they enjoyed during the marriage. As the court stated in Fisher v. Fisher, self-sufficiency must be assessed “in relation to the economic partnership the parties enjoyed and could sustain during cohabitation, and that they can reasonably anticipate after separation.”
[51] The extent to which the court will consider the accustomed standard of living during the marriage in setting the benchmark for self-sufficiency post-separation will depend on the particulars of the marital relationship. L’Heureux-Dubé, J. made this point in Moge v. Moge, where she stated that “the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution.”
[52] The statutory objectives and factors referred to above inform the issues of entitlement, quantum and duration of spousal support. The issue of entitlement is the preliminary issue to determine in any spousal support claim.
- General Principles Respecting Entitlement
i. Overview of the Grounds For Entitlement
[53] As noted above, the parties both acknowledge that the Respondent is entitled to spousal support, but disagree respecting the basis of this entitlement. This issue is important to the determination of quantum and duration of spousal support, and also to the question of whether the Respondent should be able to benefit from any post-separation increases in the Applicant’s income.
[54] The Supreme Court of Canada articulated the fundamental principles respecting entitlement to spousal support in the cases of Moge v. Moge and Bracklow v. Bracklow. In Moge v. Moge, the court summarized the overall goal of spousal support as being to ensure an equitable sharing of the economic consequences for both parties of the marriage or its breakdown. However, it also emphasized that the entire burden of these consequences should not necessarily fall on the shoulders of one party. The Supreme Court held in both Moge v. Moge and Bracklow v. Bracklow that entitlement to spousal support must be determined in accordance with the terms of the governing legislation, but that the issue should be considered keeping in mind the following three conceptual models upon which entitlement to spousal support may arise: (1) compensatory support, which primarily relates to the first two objectives of the Act; (2) non-compensatory support, which primarily relates to the third and fourth objectives; and (3) contractual support. As the British Columbia Court of Appeal emphasized in Chutter v. Chutter, the court is not required to apply one conceptual model of entitlement over the other. In many cases, entitlement may be established on more than one ground.
ii. Compensatory Support
[55] The compensatory basis for spousal support entitlement recognizes that upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage. The objective of a compensatory award is to provide some degree of compensation for the sacrifices and contributions which a spouse made during the marriage, for economic losses which they experienced and may continue to experience as a result of the marriage, as well as the benefits which the other spouse has received as a result of these sacrifices and contributions. A compensatory award recognizes that such sacrifices, contributions and benefits conferred often lead to interdependency between the spouses and merger of their economic lives.
[56] Compensatory support claims arise most typically in situations where one spouse has suffered economic disadvantage and contributed to the other spouse’s income earning potential as a result of assuming primary responsibility for child care and/or home management obligations. However, a compensatory claim can also be founded on other forms of contribution to the other party’s career, such as supporting the family while the other party obtained or upgraded their education, selling assets or a business for the benefit of the family unit, or assisting a party in establishing and operating a business that is the source of that party’s income.
[57] In considering whether a compensatory claim exists, the court must undertake a broad and expansive analysis of advantages and disadvantages which each party experienced throughout the relationship as a result of the marital union. In some situations, a compensatory claim may be defeated or weakened by the fact that disadvantage suffered by the claimant spouse is offset by disadvantage of a different type experienced by the other spouse.
[58] A compensatory claim for spousal support may be established even where the recipient spouse is employed and reasonably self-supporting at the time of the parties’ separation. This situation can arise where, despite that spouse’s ability to meet their own needs, their financial advancement has been impaired as a result of subordinating their career to that of the other spouse, or from adopting a less lucrative career path in order to accommodate the needs of the family.
iii. Non-Compensatory Support
[59] Spousal support entitlement can also arise on a non-compensatory basis, as a result of the needs of a spouse. The Supreme Court of Canada discussed this basis of entitlement in Bracklow v. Bracklow. It emphasized in that case that a spouse may be obliged to pay support based on the other spouse’s economic need alone, even if that need does not arise as a result of the roles adopted or sacrifices made during the marriage. Rowles, J.A. of the British Columbia Court of Appeal summarized the general concepts underlying this basis of entitlement in Chutter v. Chutter as follows:
Non-compensatory support is grounded in the “social obligation model” of marriage, in which marriage is seen as an interdependent union. It embraces the idea that upon dissolution of a marriage, the primary burden of meeting the needs of the disadvantaged spouse falls on his or her former partner, rather than the state (Bracklow, at para. 23). Non-compensatory support aims to narrow the gap between the needs and means of the spouses upon marital breakdown, and as such, it is often referred to as the “means and needs” approach to spousal support.
- General Principles Regarding Quantum and Duration of Spousal Support
[60] The issues of quantum and duration of spousal support must be determined taking into consideration the purposes and factors set out in section 15.2 of the Act. The advent of the SSAG has provided considerable assistance in addressing questions relating to quantum and duration of spousal support. As the authors of the SSAG emphasize, the guidelines do not address the issue of entitlement to spousal support, and therefore they should only be considered after the preliminary issue of entitlement has been established. In Fisher v. Fisher, the Ontario Court of Appeal held that although the SSAG are not legislated or binding, they are a useful tool, provided that “the reasonableness of an award produced by the Guidelines must be balanced in light of the circumstances of the individual case, including the particular financial history of the parties during the marriage and their likely future circumstances.” While the SSAG are not binding, they provide a valuable litmus test for assessing the range within which spousal support should be ordered based on traditional principles, and the duration of spousal support.
[61] The SSAG formulas generate suggested ranges for both quantum and duration of spousal support. The ranges allow for accommodations for the specific circumstances of each case, taking into consideration the support factors and objectives set out in the applicable legislation. The SSAG and the case-law that has considered the guidelines outline a number of factors which the court may wish to consider in deciding the appropriate quantum and duration of support within the ranges. These include the following:
a) The strength of any compensatory claim for support. A strong compensatory claim may be a factor that favours a spousal support award at the higher end of the ranges both in terms of quantum and duration. By contrast, a weaker compensatory claim, where the economic advantage or disadvantage to one of the spouses is limited in duration or effect, may militate in favour of a lower amount of spousal support and/or a shorter duration.
b) The recipient’s needs. Where the recipient has limited income and/or earning capacity, the level of their needs may call for an award at the higher end of the quantum and duration ranges.
c) The age, number, needs and standard of living of the children.
d) The payor spouse’s needs and ability to pay.
e) The need to preserve work incentives for the payor.
f) Property division and debts. An absence of property to divide may render an award in the higher range appropriate. On the other hand, a significant property award to the recipient may cause the judge to determine that an award in the lower range is appropriate.
g) Self-sufficiency incentives in relation to the recipient spouse.
[Citations Omitted.]
[41] The parties have submitted Support Mate calculations. After review of those calculations and considering the significant pension deduction that the Respondent is required to pay, which impacts his cash flow, I find the appropriate amount of spousal support to be $1,550. This is closer to the mid-range than the high-range support. That is the appropriate method to determine the appropriate range of support in this case where the Respondent’s significant deductions impact his actual cash flow, and considering the fact that the Respondent has another child to support. He also has someone to share his expenses with, while the Applicant is on her own with the children.
[42] In Reisman v. Reisman, 2014 ONCA 109, 315 O.A.C. 333, the Court of Appeal for Ontario states:
In so far as is practicable, promoting “the economic self-sufficiency of each spouse within a reasonable period of time” is one of the four statutory objectives of a spousal support order: see the Divorce Act, R.S.C. 1985 c. 3 (2nd Supp.), s. 15.2(6). The trial judge was right to emphasize its importance in this case. However, promoting self-sufficiency cannot be the only consideration that determines the duration of a support order. The court also has to take into account the recipient spouse’s age, skills, education, opportunities for retraining and, importantly, her realistic prospects of being able to find a job that enables her to become self-sufficient: see Tedham v. Tedham, 2005 BCCA 502, 261 D.L.R. (4th) 332, at para. 33. Also, as this court noted in Allaire v. Allaire (2003), 2003 CanLII 26263 (ON CA), 170 O.A.C. 72, at para. 21, “self-sufficiency is not a free-standing concept. It must be seen in the context of the standard of living previously enjoyed by the parties.”: see also Fisher, at para. 73.
[43] The court has the ability to provide a review order to order a review of spousal support. The Supreme Court of Canada in Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920, at paras. 37-39, held that review orders are only justified where there is “genuine and material uncertainty” on a spousal support-related issue at the time of trial. In Weber v. Weber, 2008 CarswellOnt 9365 (Ont. S.C.), aff’d on other grounds 2010 ONCA 12, Herold J. was faced with a situation where the wife had been a stay-at-home mother, and at the time of trial was registered for a college course to become an Education Assistant. Herold J. concluded that given the wife’s educational pursuits, he could not estimate when the wife would have found a new career or achieve some level of economic self-sufficiency. He therefore ordered spousal support reviewable in three years, at para. 62, “to take into account her new educational achievement and hopefully education employment status.”
[44] I find this to be an appropriate case for compensatory spousal support. The Applicant has been out of the workforce for five years as a result of her parental responsibilities, which were determined by the parties during their marriage. The Applicant taking on these responsibilities permitted the Respondent to focus on his career, to her detriment. The Applicant, in cross-examination, acknowledged it would be her fault if she cannot graduate from university or find good employment.
[45] I find nothing in this matter that would require the imputation of income to the Applicant. Though there is an expectation that she needs to become self-sufficient, that cannot take place without some form of reintegration or upgrading for her re-entry into the workforce.
[46] While the Applicant suggests that this is not a case for review, the Respondent suggests the review in two years with regard to the quantum of support only. I find this is an appropriate case for review, and that review will take place after September 1, 2022. A review may take place earlier if the Applicant is employed on a full time basis for more than six months. The terms of the review shall be to determine the future quantum of spousal support, if any, on the basis of the Applicant’s ability to support herself, and the expectation that she will be earning $50,000 as a Montessori teacher or have found other appropriate employment.
[47] The Applicant sought indexing of the spousal support. While the Respondent has had increases in his income, there is no evidence before the court with regard to annual indexing for the Respondent. Accordingly, there shall be no order with regard to indexing support.
[48] The parties agreed on some and disagreed on other expenses paid by the Respondent. For the year 2016, having reviewed the evidence provided by each of the parties, the Respondent shall have credit for the following amounts: $13,179 for mortgage payments; $870 for Co-Operators home insurance; $1,441 for Veridian Hydro; $1,524 for Enbridge Gas; $709 for Durham Water; $385 for Bell TV; $85 for ADT alarm system; $700 paid for the Applicant’s CRA amount; $2,158 for the Police Credit Union loan consolidation; $2,280 for Ford Finance truck lease; $6,300 for funds paid by e-transfer; and $4,469 for a transfer from the Police Credit Union. The total amount the Respondent shall have credit for is $34,100. I find all other amounts not properly claimed by the Respondent.
[49] For 2017, the Respondent shall have credit for payments of up to April 30, 2017 of $3,015 for the mortgage; $290 for home insurance, $221 for Veridian Hydro; $285 for Enbridge Gas; $274 for car insurance; $624 for the Ford truck lease; and $1,680 for amounts the Respondent e-transferred to the Applicant. The total amount the Respondent shall have credit for is $6,389. Any other amounts claimed, the Respondent shall not get credit for. This is in part due to the fact that the police line of credit amounts are being paid from the joint proceeds of the sale of the home.
[50] Accordingly, it is appropriate that the support order in this matter be made retroactive to January 1, 2016.
[51] The Respondent should have paid $18,300 in child support for 2016, and $18,600 in spousal support for 2016. Accordingly, the Respondent owes retroactive support for 2016 in the amount of the total being $36,900. He has received credit for $34,100, therefore the total retroactive support owed for 2016 is $2,800. For 2017, the Respondent should have paid up to April 30 the sum of $6,100 for child support and $6,200 for spousal support. He has received credit for $6,389, therefore, the total retroactive support owed for 2017 is $5,911.
[52] The total retroactive support owed over the years 2016 and 2017 is $9,764.70. The Respondent should have paid his share of tutoring, and speech and language services. The total amount of his 82% share would be $840.50 of the $1025 for tutoring, and $213.20 of the $260 for the speech and language services. The Respondent shall therefore pay total retroactive support and s. 7 costs of $1,053.70. The retroactive support shall be paid from the sale of the matrimonial home. If no funds are available, they will be enforced by the Family Responsibility Office (FRO).
[53] As an incident of support, the Applicant sought life insurance security for both child and spousal support. Having reviewed the insurance available to the Respondent, the needs of the Applicant and the children, and the fact that the Respondent has another child, it is appropriate that the Respondent continue the life insurance with the Applicant as beneficiary for the life insurance policies totaling $250,000. The quantum of this life insurance may be adjusted upon review of child or spousal support.
[54] Final order to go as follows:
- Divorce judgment to issue, effective in 31 days.
- Commencing May 1, 2017, the Respondent, Balakumaran Piraisoody, shall pay to the Applicant, Shalini Fernando, child support for the two children, namely Josh Fernando-Piraisoody, born September 20, 2009, and Zoe Fernando-Kumaran, born May 31, 2013 (hereinafter “the children”) in the amount of $1,525 per month, based on the Respondent, Balakumaran Piraisoody’s 2016 income of $108,877 (2016 line 150 income of $110,428 less union dues of $1,551) and the Child Support Guidelines.
- Commencing May 1, 2017, the parties shall share the s. 7 expenses for the children, with the Respondent, Balakumaran Piraisoody, paying 82%, and the Applicant, Shalini Fernando, paying 18% of the expenses, deducting any amounts covered by the Respondent, Balakumaran Piraisoody’s insurance benefits. The Applicant, Shalini Fernando, shall not incur any s. 7 expenses without the prior written consent of the Respondent, Balakumaran Piraisoody, or a Court Order. Consent not to be unreasonably withheld.
- Upon closing of the Matrimonial Home municipally known as 21 Ainsbury Avenue, Ajax, Ontario, the following joint debts shall be paid down out of the net proceeds of sale by the real estate lawyer (with each party thereby paying one-half of the debt) and the accounts shall subsequently be closed: a. Police Credit Union Consolidation Loan #3 in the amount of approximately $2,957.31 (as at March 19, 2017); and b. Police Credit Union Line of Credit #2 in the amount of approximately $4,585.13 (as at March 31, 2017).
- Commencing January 1, 2016, the Respondent shall pay spousal support of $1,550 per month.
- The Respondent shall pay retroactive support of $9,764.70.
- The quantum of spousal support may be reviewed after September 1, 2022, or earlier if the Applicant is employed for a period of more than six months in a full time, permanent position earning in excess of $40,000 per year. The review shall be determined by the Applicant’s progress to self-sufficiency, with particular regard to her plan to become a Montessori teacher.
- As long as the children remain children of the marriage, the Respondent Father shall continue to maintain them on his extended medical/dental benefits and shall execute the necessary forms to enable the same. The Respondent shall immediately contact his administrative department to set up the benefits for the children, such that the reimbursements can be made directly to the Applicant for their expenses.
- The Respondent Father shall designate his life insurance policies in the face amount of $250,000, as security for his spousal and child support obligations. The policy shall be registered with the Applicant Mother being the owner and the beneficiary of the policy, with the Respondent Father making the payments. As long as support is payable, the Respondent Father shall continue to maintain the policy in full force and effect and will make the premium payments as due. In the event the Respondent fails to make any payments as required and the Applicant is forced to pay the premium, any such amount will be enforceable as spousal support in addition to any support already paid to the Applicant Mother.
[55] Counsel for the Applicant may serve and file cost submissions, restricted to five pages, exclusive of a bill of costs, by forwarding same to my secretary within 10 days of the release of this judgment. Counsel for the Respondent may serve and file their response, restricted to five pages, within seven days thereafter, and counsel for the applicant may serve and file their reply, restricted to five pages, within four days thereafter.
Justice A.R. Rowsell
Released: October 23, 2017