CITATION: Leitch v. Graham-Leitch, 2017 ONSC 7197
COURT FILE NO.: FS-16-0007
DATE: 2017-12-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Mathew Leitch
Self-Represented
Applicant
- and -
Kelly Graham-Leitch
S. Bachinski, for the Respondent (Moving Party)
Respondent (Moving Party)
HEARD: November 28, 2017, at Thunder Bay, Ontario
FITZPATRICK J.
Decision on Motion for Interim Spousal Support and Sale of Matrimonial Home
[1] The Respondent, Kelly Ann Graham-Leitch (Kelly), brings a motion for interim spousal support and an order for sale of a matrimonial home which she owns as a joint tenant with the Applicant Mathew Adam Leitch (Mathew).
[2] Prior to commencement of the motion, the parties agreed to certain relief requested by Kelly. Order will go on consent as follows:
Pending trial or further Court order Mathew will maintain Kelly as the sole beneficiary of any life insurance policy offered to him as a term of his employment; and
Pending trial or further Court order Mathew will maintain Kelly as a beneficiary of any extended health benefits offered to him as a term of his employment; and
Both parties shall not deplete their assets pending trial or further court order.
Background
[3] The parties were married April 10, 1999. They separated November 25, 2015. There are no children of this marriage. Kelly is currently 48 years old. Mathew is 52 years old.
[4] There is a dispute about when the parties began to cohabit. Kelly claims it was in January 1996 when she went with Mathew to Australia where Mathew was pursuing a post-graduate degree. Mathew claims in his affidavit that cohabitation commenced in December 1996, but in oral argument he claimed that it was in 1998 because Kelly was going back and forth from Australia to Canada until immediately before the parties were married.
[5] Kelly did not work outside the home in anything approaching a full-time capacity during the marriage. She has an arts degree which she obtained from St. Thomas University in Fredericton, New Brunswick in 1995. She had a series of part-time jobs while the couple was in Australia. The parties moved back to Canada in 2003. They moved to Thunder Bay in August 2003 when Mathew obtained a position as an assistant professor at Lakehead University. He has held that position to this date. Kelly had a series of part time jobs while the couple lived in Thunder Bay.
[6] The circumstances surrounding their separation are in dispute. Kelly asserts she was "tricked" to leave the matrimonial home. Mathew asserts the separation was agreed upon. In any event, Kelly went to Fredericton in late November 2015 to visit her parents. She has remained there to the date of this motion.
[7] Mathew commenced a simple application for divorce claiming no corollary relief in January 2016. Kelly was served with this process on March 3, 2016. On March 7, 2016, Kelly filed an answer claiming various forms of relief, much of which is sought on an interim basis on this motion.
[8] A case conference was held on May 27, 2016. The endorsement on the case conference provided only that "parties may proceed with motions for temporary relief".
[9] The notice of motion for this proceeding was served and filed almost a year later in late May 2017. Apparently, the parties spent the year attempting to negotiate a global resolution of all outstanding issues but were not successful.
Preliminary Issue on Motion
[10] Kelly filed two affidavits and a financial statement in support of her motion dated May 15, 2017. Mathew filed a responding affidavit on September 11, 2017. Kelly served a reply affidavit on September 15, 2017. Mathew, by then self-represented, attempted to serve two further affidavits, one dated November 6, 2017 and one dated November 10, 2017. The November 10 affidavit was more in the nature of a statement of position or a request for certain relief rather than a proper affidavit.
[11] Kelly moved at this hearing to strike out both these affidavits as they were not served in accordance with Rule 14(20). In the event the court permitted these affidavits to be used, Kelly herself sought to file an additional affidavit dated November 15, 2017.
[12] Also, Kelly sought to have filed an affidavit of Faye Cooke, a secretary in the office of her counsel. The affidavit, sworn November 6, 2017, deposed to errors that were made in the course of preparing DivorceMate Software calculations to determine the appropriate quantum of temporary spousal support. The secretary entered the years of cohabitation in error (too low) which, when corrected, yielded significantly higher monthly amounts in all three ranges of the calculation.
[13] Having briefly reviewed all of this impugned material, it seems to me much of it (with the exception of the Cooke affidavit) was a restatement of what the parties had deposed to earlier in affidavits which were properly filed. Mathew did not specifically refer to the paragraphs of these impugned affidavits during oral argument but, interestingly, counsel for Kelly did, albeit only with respect to the circumstances of the break-up which occurred in November 2015.
[14] In all, I did not find any of this material particularly useful. I agree it should not have been allowed to have been filed and it is considered to be struck out for the purposes of this decision.
[15] The affidavit of Faye Cooke seemed to me to be in the nature of argument and I will address it in my decision concerning the quantum of support.
Issues for the Motion
[16] There were three main issues to be determined on this motion, with some corresponding subordinate issues. The main issues are:
A. The quantum of spousal support payable and the date of commencement of payment of same;
B. Whether Mathew should be required to maintain Kelly as a beneficiary on his pension benefit pending trial or further Court order; and
C. Whether the Court should order that the parties' matrimonial home be sold and whether Mathew should pay occupation rent from the date of separation to the date the house is sold or otherwise disposed of to the parties' mutual satisfaction.
Issue A. Spousal Support
[17] There was no dispute on this motion that Kelly was entitled to an award of temporary spousal support. There was no issue that Kelly has a need for support and that Mathew has the ability to pay. The only issue was the quantum of support and the date of commencement of same.
[18] There is no dispute that Mathew's 2016 line 101 employment income was $132,146.51. No current income information was provided for Mathew by either party.
[19] Kelly projects she will earn $8,547.00 in 2017.
[20] There is a serious dispute about Kelly's income. Since July 2016 she has been self-employed cleaning apartment buildings. She did obtain part-time minimum wage work from March to July 2016 in Fredericton. Her remuneration from this employment was minimal. Her affidavit material deposed to a litany of reasons why she is unable to work even at a full-time minimum wage job. Reasons included her personal health situation, her lack of experience as she did not work for the majority of the time that she was with Mathew, and the lack of job opportunities in Fredericton.
[21] Kelly has provided both an actual budget and a proposed budget in support of her interim claim. Her actual budget showed very minimal expenses. An affidavit filed by Kelly's aged mother (most of which I discounted as unhelpful oath-helping and hearsay) deposes that she has loaned Kelly $30,000.00 to allow her to survive.
[22] Kelly argued for an ongoing mid-range award based on a 20 year marriage, Mathew's undisputed income of $132,145.51 and her 2016 income of $5,992, which would yield an ongoing sum of $3,680 per month.
[23] Kelly also argued that this temporary award should be made retroactive to the date of separation. This retroactive period, accepting Kelly's suggestion on quantum, would leave arrears owing by Mathew (once credit is given for amounts he did pay) in the order of $3,680 for 2015, $38,000.00 for 2016 and $18,400.00 for 2017.
[24] Mathew acknowledges that he must pay spousal support. However, he argues for a quantum of $2,000.00 per month. He vigorously contests Kelly's position that she is unable to find regular full-time work at a decent wage. He argues that her attempts to find work have been minimal. He disputes her medical condition. He notes his own serious medical condition which he nevertheless is able to work through in order to continue his employment. He submits Kelly is hiding money and was able in the past to run a successful under the table cash business making and selling women's garments, purses and handbags.
[25] Mathew submits no retroactive spousal support should be ordered at this time and any interim order should commence on December 1, 2017.
Disposition of Spousal Support Issue
[26] The various disputed issues on this motion highlight the difficulty caused by delay in bringing matters forward on an interim basis. Interim motions dealing with spousal support are supposed to address short term hardship. Yet Kelly waited over a year to bring this motion. While Kelly's hardship seems to have been going on for two years, clearly there are several significant issues of dispute, all of which require a trial to resolve. Also, as time has gone on, things have changed, which makes disposing of this issue more difficult.
[27] There is a live issue as to the date of cohabitation. Apparently, this date would impact the quantum of support that would be indicated by DivorceMate Software. Kelly's original affidavit material contained calculations premised on a 16 year marriage. She now seeks to characterize the relationship as being 20 years in length. This is disputed by Mathew. There are serious factual assertions about the length of cohabitation which cannot be resolved on the material before me.
[28] There is also a serious issue about Kelly's effort to obtain employment and whether or not income should be imputed to her. I am alive to the weight of the authorities that have held that interim motions are not the place for the Court to be imputing income to either party: see for example Lamb v. Watt, 2017 ONSC 5838, at para. 34.
[29] However, almost two years have passed from the date of separation. Kelly has stayed in New Brunswick the entire time. Her lack of funds is one reasonable explanation for this. However, I observe that her material does not show any real plan for the future or that she is making any serious attempt to use her education to obtain some kind of long-term employment that will assist her in becoming financially self-sufficient. While this is but one goal of a s. 15.2(6) Divorce Act temporary spousal support award, it seems to me to take on a greater significance when one considers how the quantum of support payable will be effected by her exact income, particularly when one considers her request for retroactive support. I am concerned that the delay in prosecuting her claim calls into question her actual need and the reasonableness of her position. Again, the material on this motion is not sufficient to draw any definitive conclusions but her claims for retroactive support are significant.
[30] Mathew has been making all the payments on the mortgage, the line of credit and the debt for the couples' RV. These are not insignificant but clearly something he has been able to handle given his income. These payments may be subject to credits when the issue of equalization is considered but again, that will only happen at a trial or perhaps earlier if the parties seriously entertain settlement following the release of this judgment. It is a piece of the puzzle which does, in my view, impact on the quantum of support that needs to be awarded at least on an interim basis.
[31] There is also the impact that fixing a cohabitation date has on the calculation of quantum. Kelly's position on quantum does call for a speculative decision on the date of cohabitation. Also, in order to accept her position on quantum, there must also be an acceptance of the proposition that a university-educated person whose career was not interrupted by the necessity to provide child care, has, for two years, been unable to obtain any kind of employment that would begin to set her on the path to some kind of financial stability.
[32] At the same time, I do not find Mathew's position on quantum to be particularly realistic. I appreciate that negotiations were ongoing for almost a year after leave was granted to bring this motion. However, he only began to pay support in June 2017, 18 months after separation. The couple's debt is not particularly onerous, and he has no other people to whom he has any support obligations.
[33] Considering all of this, in this case, it is not so simple to plug in numbers to the DivorceMate calculator and expect a just result. Certainly on a full record, where a lot of these economic variables can be resolved on the evidence, a guideline calculation will likely make perfect sense. However, on this motion, I am left to piece together a number of different considerations to come up with an appropriate quantum.
[34] I think the situation here is exceptional. Too many factors cannot be resolved without a trial or an agreement on the facts. While the Guidelines are a useful tool, in this case I am taking them as only one factor to consider in setting a quantum of temporary support.
[35] Accordingly, I am fixing the quantum of temporary, ongoing and retroactive support at $3,100.00 per month. On a very rough basis, this amount would be toward the low end of the Guideline calculations assuming a relationship in the range of 17 to 20 years and assuming no income is imputed to Kelly. To me, in this case, the Guidelines serve as a reference point as to a reasonable quantum I am prepared to fix at this point in the proceedings. It has the practical effect of taking Kelly where I find her in terms of her reported income. An award that is at the low end of the Guideline range for the amounts Kelly is suggesting reflects an expectation that, in the long term, Kelly's economic prospects should improve. This gives her an amount of support that should allow her to start the process of seriously moving on, and which at the same time reflects the fact she has not been required to service the family debt and will not be required to do so at least until trial or until the matter is resolved through negotiation.
[36] I also order that this amount should be payable commencing January 1, 2017. This will create arrears of support in the order of $22,100.00 once Mathew is given credit for the $2,000.00 per month he has paid since June 2017. I have decided to award partial retroactive support because it seems to me likely that ultimately Kelly will be successful on a claim for support to the date of separation. However, making such an order at this point will impose an inordinate short term economic burden on Mathew. Partial retroactive support is a compromise position that is reasonable in my view given the way this case has evolved to date.
[37] I chose January 1, 2017 as the date for the temporary order to begin as this was the date that was mid-way during the apparent "one year negotiation process" that followed the first case conference. Based on the submissions of the parties, it was not until six months later, in June 2017, when it was apparent that negotiations could not resolve matters, that Kelly finally brought a motion for which she obtained leave almost a year previously. In my view, this equally shares the effect of the delay in the bringing of this motion. It will also allow the parties to most effectively deal with the tax consequences of these retroactive payments as they will be filing their 2017 returns in the next three months or so.
[38] Clearly the issue of retroactivity from the date of separation to December 31, 2016 is a live issue for trial. It will also be a term of this order that Mathew is to continue to make payments on the joint line of credit and to continue to pay the loan on the couple's R.V..
Issue B. Designation of Pension Beneficiary
[39] I also think it fair and reasonable that Mathew maintain Kelly as the beneficiary of his pension benefit pending trial or further court order. Clearly she has a claim on this asset in some manner through the equalization process. Mathew has no other dependents. It seems to me to be a fairly neutral decision as far as he is concerned.
Issue C. Sale of the Matrimonial Home
[40] The parties entered into an interim separation agreement dealing with this issue dated May 30, 2017. It contemplated Mathew buying out Kelly's interest on or before the end of September 2017. That did not occur.
[41] Kelly's counsel suggests that Mathew did not oppose her request for sale in his reply to Kelly's answer. My review of his reply pleading leads me to disagree with this assertion. Paragraph 3 of the reply indicates disagreement with a number of paragraphs in the answer, including paragraph 8 which includes the claim for interim sale.
[42] Kelly is on title to the matrimonial home. She owns it as a joint tenant. Prima facie she has a right to have the property sold pursuant to the provisions of the Partition Act. It is trite law that an application for sale under the Partition Act can only be resisted if the application is vexatious, malicious or oppressive. In my view, the evidence on this motion would not support any such a finding.
[43] Mathew strenuously resists an order for interim sale. However, other than his professed love of the property, which is completely understandable, he offers no cogent reason why the property should not be exposed to the market for sale in the near future. Apparently, Mathew has determined, and it was his oral submission, that the Municipal Property Assessment Corporation (MPAC) market value assessment is the true market value of the property. With respect, that value is prepared solely for the purpose of obtaining an equitable assessment of the property for property tax purposes under the Assessment Act and the Municipal Act, and not for purposes of the Divorce Act, the Family Law Act or even the Income Tax Act.
[44] In my view, given the length of time that has passed since separation, the decision I have made about interim spousal support and the merits of Kelly's claim for an order for sale, it is just and equitable to order that the matrimonial home be listed for sale. However, I expect the terms of the sale will require some negotiation. Given the time of the year, I am going to order that the property be listed for sale on or after April 2, 2018, unless the parties agree to some earlier date. Mathew is to continue to pay the mortgage, taxes and insurance on the property pending sale.
[45] I am also going to order that the parties schedule a case conference continuation to occur sometime between February 1, 2018 and March 30, 2018. In the event that they have not worked out the details of the sale, the case conference can be utilized to set parameters for a motion or some other method to resolve the issue. If possible, this case conference should be scheduled before me as I now have a thorough understanding of the respective positions of the parties and it will eliminate the need to waste further resources on new briefs. The parties shall draw this particular paragraph of the judgment to the attention of the trial coordinator at Thunder Bay when they are seeking to schedule the conference.
[46] Even if the terms of sale or all other issues regarding the matrimonial home are resolved, failing a global settlement of all outstanding issues by February 1, 2018, the parties shall nevertheless schedule a case conference continuation as noted above. This is because it is my view that, absent a global settlement, it is now time for this case to have a trial so that both parties can get on with their lives. A case conference will assist in achieving that goal.
[47] Although Kelly was asking that Mathew pay occupation rent on an interim basis, this issue was not vigorously pursued at this motion. As Mathew has been paying all the interim expenses on the home, I saw this as a wise tactical decision by Kelly's counsel. The claim for interim occupation rent is dismissed.
Costs
[48] In my view, success on this motion has been divided. However, Kelly had to incur the costs of bringing it in order to move the matter forward and obtain both an ongoing award and retroactive payments in excess of what Mathew was proposing. I would expect that she would be awarded some costs of this motion on a partial indemnity basis. If there is no agreement on costs the parties may make written submissions, not to exceed two type-written pages. Kelly shall make any submission on or before December 8, 2017. Mathew may respond on or before December 15, 2017.
[49] Accordingly, order to go as follows:
[50] On Consent:
Pending trial, mutual agreement or further Court order, Mathew will maintain Kelly as the sole beneficiary of any life insurance policy offered to him as a term of his employment; and
Pending trial, mutual agreement or further Court order Mathew will maintain Kelly as a beneficiary of any extended health benefits offered to him as a term of his employment; and
Both parties shall not deplete their assets pending trial or further court order.
[51] Following determination on this motion, order to go:
Mathew Adam Leitch shall pay temporary periodic spousal support to Kelly Ann Graham-Leitch in the amount of $3,100.00 per month commencing January 1st, 2017;
Mathew shall be given credit in respect of any arrears of spousal support owing to November 30, 2017 in the amount of $12,000.00;
Pending trial, mutual agreement of the parties or further Court order, Mathew shall continue to pay the mortgage, taxes and insurance on the matrimonial home as well as continue to make payments on the joint line of credit and the loan on the couple's R.V.;
Pending trial, mutual agreement of the parties or further Court order, Mathew shall maintain Kelly as the beneficiary of the pension benefit that is available to him as a term of his employment;
The matrimonial home known municipally as Fire #7 Alppila Road, Kaministiqua, Ontario shall be listed for sale on or after April 2, 2018;
The parties shall continue a case conference before Fitzpatrick J. (if possible) sometime between February 1, 2018 and March 30, 2018;
Mathew will pay Kelly costs of this motion on a partial indemnity basis to be agreed or fixed by the Court upon further submission.
_"original signed by"
FITZPATRICK J.
Released: December 1, 2017
CITATION: Leitch v. Graham-Leitch, 2017 ONSC 7197
COURT FILE NO.: FS-16-0007
DATE: 2017-12-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Mathew Leitch
Applicant
- and -
Kelly Graham-Leitch
Respondent (Moving Party)
DECISION ON MOTION
FITZPATRICK J.
Released: December 1, 2017
/sab