LINDSAY COURT FILE NO.: FC-16-305
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jacqueline Rose Marie Cirocco
Applicant
– and –
Denis David Cirocco
Respondent
Abiola Adeusi, for the Applicant
Noted in Default
HEARD: December 2, 2016
McDermot J.
Background
1Denis Cirocco appears to be a man who will only do things his own way, even where his way of doing things makes no sense whatsoever. I say “appears” because Mr. Cirocco did not show up to speak for himself in court.
2Mr. and Ms. Cirocco were married 24 years and separated in February, 2014. They have two children, both of whom are adults.
3When Ms. Adeusi wrote to Mr. Cirocco as counsel for his wife, his response was an emotional one: he texted Ms. Cirocco that he would “quit my job or never retire… that way you will get nothing…” He later threatened to “quit his job no pension for no body…lol” and said that he would “cease now to pay mortgage…for closure (sic.) and u will pay costs.” 1
4A man true to his word, he did cease paying the mortgage. That mortgage was the second mortgage placed on the matrimonial home since the parties separated on February 3, 2014. That mortgage left little equity in the matrimonial home that Mr. Cirocco had inherited from his parents and that Ms. Cirocco had originally thought was mortgage free.
5And this is where Mr. Cirocco’s misguided efforts to deal with his finances and the separation have been so destructive. According to Ms. Cirocco, throughout the marriage, he controlled the parties’ finances tightly. He would go shopping with her to make sure she would not spend too much, and would only give her a small allowance. He would become infuriated and embarrass her in stores when he perceived that she had overspent on something.
6He continued with his financial control after the parties separated. On June 19, 2015, well over a year after separation, the parties met and at Mr. Cirocco’s insistence entered into a handwritten “separation agreement” which provided that Mr. Cirocco would receive title to the home and pay all debts. He agreed to pay Ms. Cirocco spousal support of $250 per week.
7Unfortunately, Mr. Cirocco failed to live up to his half of the bargain. His post-dated cheques for spousal support were mostly returned NSF. He refused to communicate with the lawyer that Ms. Cirocco retained to prepare the separation agreement, and instead of arranging for a transfer of the home to him, he had Ms. Cirocco sign for a refinancing of the matrimonial home. He is now not paying the mortgage as noted above, and the home is in power of sale. As will be discussed below, the home also has little equity and neither party will receive much, if anything, once it is sold, especially on a forced sale.
8Eventually, Ms. Cirocco became fed up and retained counsel. Counsel wrote to Mr. Cirocco but he failed to respond except as noted above. Ms. Adeusi began this application on behalf of Ms. Cirocco and Mr. Cirocco was served on August 9, 2016. He has not filed an answer or financial statement. This matter was referred to trial by Gonsulus J. on September 30, 2016 because he did not feel that the separation agreement could be set aside without viva voce evidence.
9On December 1, 2016, the day before trial, Mr. Cirocco had phoned in and left a message with court staff that he “won’t be able to attend Dec 2/16 - cannot get time off work.” Prior to trial, I noted Mr. Cirocco in default because of his failure to file responding documentation as required by the rules.
Analysis
10The first issue that was referred to trial by Gonsulus J. was the issue of the separation agreement: is it binding on the parties? Once that issue is dealt with, the two remaining issues are as follows:
a. The Applicant’s claims for equalization of property, including the Respondent’s pension; and
b. The Applicant’s claim for spousal support.
Separation Agreement
11The separation agreement was a homemade document written in Ms. Cirocco’s handwriting. She testified that she had been struggling financially since separation, and needed help. She said that she and her husband met at a Tim Hortons in Oshawa to discuss an agreement. The handwritten document was the result of that meeting.
12The agreement provided that Mr. Cirocco would pay spousal support of $250 per week and Mr. Cirocco gave his wife post-dated cheques at the meeting. It also provided that Ms. Cirocco would transfer her one half interest in the matrimonial home to Mr. Cirocco and that he would assume all of the joint debts.
13As I noted above, Mr. Cirocco did not fulfil his side of the bargain. All but 13 of his cheques were returned for insufficient funds. He did not transfer the home to himself or respond to the lawyer retained by Ms. Cirocco to prepare the agreement. He is in default of the mortgage on the home, which was a joint debt.
14In my view the agreement is unenforceable, and should be set aside. There are three reasons for this:
The agreement does not meet the formal requirements for an enforceable domestic contract under s. 55 of the Family Law Act (the “FLA”).2
When the agreement was signed, Ms. Cirocco was not provided with any financial disclosure and had no knowledge of her legal rights; and
Concerning spousal support, this is a claim under the FLA only and therefore Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303 is inapplicable as this case only applies to claims under the Divorce Act.3 However, consideration must be given to the applicability of s. 33(4) of the FLA which permits agreements to be set aside respecting support under certain circumstances.
Formal Requirements
15Under s. 55(1) of the FLA, for a separation agreement to be enforceable, it must be in writing, and signed by each of the parties in front of a witness:
- (1) A domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed.
16This agreement was in writing. However, neither parties’ signature was witnessed as required by the section.
17The agreement is therefore unenforceable as a domestic contract under the FLA. The provisions in respect of property do not bind the court as a result.
Lack of Disclosure and Independent Legal Advice
18Section 56(4) of the FLA governs the circumstances under which a separation agreement can be set aside:
(4) A court may, on application, set aside a domestic contract or a provision in it,
(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;
(b) if a party did not understand the nature or consequences of the domestic contract; or
(c) otherwise in accordance with the law of contract.
19The Applicant testified that she had no idea of what her legal rights were. Hearing her testimony, I do not doubt that this was the case. She signed an agreement whereby she was going to transfer the home into her husband’s name; this was the parties’ major asset. The promise to name her as beneficiary of the home under Mr. Cirocco’s will was unenforceable. The spousal support was based upon what Mr. Cirocco could “afford” which is not the sole criteria for setting spousal support under the FLA. The agreement confirms Ms. Cirocco’s ignorance of her legal rights on separation.
20She also testified that she had no idea of the assets owned by the parties or as to her legal rights to equalization of property. I also believe this to be the case. In fact, the Applicant testified that she did not even know that there was a mortgage on the home when the parties separated, and she also testified that she did not understand the mortgage transactions that she entered into after the agreement whereby the matrimonial home was remortgaged two times, eventually leaving no equity in the home.
21The agreement shall therefore be set aside by reason of para. 56(4)(a) and (b) of the FLA.
Support Provisions
22The support provisions in a separation agreement may be set aside under s. 33(4) of the FLA under certain circumstances as follows:
(4) The court may set aside a provision for support or a waiver of the right to support in a domestic contract and may determine and order support in an application under subsection (1) although the contract contains an express provision excluding the application of this section,
(a) if the provision for support or the waiver of the right to support results in unconscionable circumstances;
(b) if the provision for support is in favour of or the waiver is by or on behalf of a dependant who qualifies for an allowance for support out of public money; or
(c) if there is default in the payment of support under the contract at the time the application is made.
23Here there are certainly indicia of this being an unconscionable transaction, even were this an enforceable agreement. The Respondent negotiated an amount of spousal support well below the amount that would have been dictated by the Spousal Support Advisory Guidelines (the “SSAG”). There was no financial disclosure of the Respondent’s income, and the Applicant testified that she was, at the time of the negotiation of the agreement, in desperate financial circumstances. The Applicant had been homeless since separation, and had been living with relatives. She was disabled because of post-traumatic stress disorder which she says arose from her husband’s abuse of her during the marriage and she was unable to work. She says that the amount of support that she agreed to accept was what Mr. Cirocco said that he could afford; there was no consideration of the Applicant’s need in the negotiation of that figure. The Applicant had no independent legal advice when the agreement was signed. All of these concerns are shocking to the conscience of the court.
24The agreement was therefore unconscionable, and the Respondent remains in default of the spousal support under the agreement. The combination of these factors lead me to determine that the spousal support set out in the agreement shall be set aside even if this was an enforceable agreement under the FLA.
Result
25I therefore find that the agreement shall be set aside in its entirety. The terms of the agreement are therefore found to be unenforceable.
26The agreement is, however, an indication of the parties’ intentions and I take those intentions into account in examining the remedies available to the parties concerning equalization of property and spousal support. For example, I note that, concerning property, that the major issue in this case was the division of the Respondent’s defined benefit pension plan with General Motors. The agreement does provide, in any event, that the Applicant would receive “half pension – or whatever the law dictates.” The agreement confirms that both parties understood that the Respondent’s pension plan was subject to division and intended that to be the case.
Equalization of Property
27In her written submissions, counsel requests division of the equity in the matrimonial home that the Respondent had on the date of separation as well as the division of the Respondent’s pension.
28Counsel noted during the uncontested trial that she did not have a net family property statement because the Respondent had made no financial disclosure. However, Ms. Cirocco testified that, as far as she knew, the only major assets that the parties had on separation were Mr. Cirocco’s pension plan and the matrimonial home.
Matrimonial Home
29Applicant’s counsel says in her written submissions that the Applicant is entitled to “her half share in the net equity of the home” on the date of separation, which she says was $59,003.58.
30The Applicant testified that she became a joint owner of the home after the Respondent’s father died and bequeathed the home to the Respondent and his sister. Ms. Cirocco says that she and her husband purchased the Respondent’s sister’s interest in the home and that she, along with Mr. Cirocco, was a joint owner of the home.
31It appears from the evidence that, on the date of separation, there was a mortgage on the home in favour of the Royal Bank of Canada in the amount of $83,994.83. She said the home was worth about $202,000 and the net equity that she had in the home on the date of separation was one half of the difference between the mortgage and the value of the home, which is the amount claimed above.
32There is presently no equity in the matrimonial home. That is because the Respondent convinced the Applicant to remortgage the home on two occasions after separation. On January 2, 2015, prior to the signing of the separation agreement, the parties refinanced the property by placement of a private first mortgage in the amount of $135,000 in favour of 2394407 Ontario Limited. A review of the Statement of Receipts and Disbursements4 indicates why it was necessary to obtain private financing: there appears to have been a judgment and writ paid out to the Credit Bureau of Canada in the amount of $9,761.18. the Royal Bank loan was paid out in full. At the time the “separation agreement” was signed in June, 2015, the mortgage on the home was no longer just the conventional mortgage in favour of the Royal Bank noted above and the equity in the home had been decreased to about $67,000.
33A year later, when this private mortgage had matured, things had not improved. In January, 2016, the parties both refinanced the property again, this time by way of another private mortgage in the amount of $178,000 in favour of Stephen Wai. It appears that this mortgage was much higher than the previous one, partially because the previous mortgage had gone into default and there were legal fees for power of sale proceedings of $6,500, and partially because Mr. Wai was demanding prepayment of the first six months interest under his mortgage.
34Ms. Cirocco testified that she received between $1,000 and $1,500 from both of these refinancings of the matrimonial home. However, the total funds released to the parties from each of these transactions totalled only $6,735.10 in January, 2015 and $3,438.10 in January, 2016.
35Ms. Cirocco testified that she had recently received a Notice of Sale under Mortgage in respect of the Stephen Wai mortgage. She said that the home has been allowed to deteriorate, and because of this, she suspects that the home presently has little or no equity. She says that her husband received the benefits of the previous two mortgages, and she should receive the equity that she had on the date of separation, rather than the amount that she will now be entitled to once the home is sold under power of sale.
36The submissions provided by counsel do not specify the basis upon which the Applicant should be paid her original equity in the home, especially insofar as she signed both mortgages and received some benefit from each of the mortgages on the home.
37This is not an equalization issue. The matrimonial home was jointly owned, and neither party owes the other an equalization payment as a result of their respective interests in the matrimonial home. There is therefore no equalization payment owing to the Applicant as a result of the Respondent’s ownership in the matrimonial home.
38This is also not a partition and sale issue, as the matrimonial home has no equity at present. The partition and sale proceedings would be subject to the power of sale proceedings presently underway on the home.
39The Applicant has not pleaded unjust enrichment or a claim for an unequal division of the net family property of the parties. Those remedies are not available to the Applicant now as no notice has been given to the Respondent of any claim of that nature. And even were the Applicant claiming unjust enrichment, a trust remedy arising from such a claim is not available against the home, which has no present equity, and there is no asset of which the court is aware from which a constructive trust interest may be levied against.
40The Applicant also appears to be requesting indemnification from the Respondent for the debts accumulated against the home by the parties since separation. The Applicant testified that she did not understand the transactions under which the matrimonial home was refinanced over the years since the parties separated.
41The Applicant again has not pleaded this relief even though both refinancings had been completed when this application was issued. There is also no jurisdiction under the FLA to equalize debts alone: see s. 4(5) of the FLA. Finally, other than his failure to pay the mortgage and the small amount of funds disbursed to the parties under the two new mortgages, it does not appear that the Respondent received the benefit of the two mortgages other than repayment of debts that may have allowed for a reduction in the equalization payment owing by the Respondent to the Applicant. There is no basis in law to allow for an order indemnifying the Applicant as requested by her in her counsel’s submissions.
42Without more, I find that there is no remedy available to the Applicant as against the Respondent arising from the post-separation remortgaging of the matrimonial home.
Pension
43The Applicant seeks her “family law value of the Respondent’s pension”. It is unquestioned that the Respondent was an employee of General Motors throughout the length of the marriage. Therefore, the Applicant is entitled to an equalization of the pension from the date of marriage, March 29, 1990, to the date of separation on February 14, 2014. In fact, the Respondent acknowledged the Applicant’s right to “half” of his pension in the handwritten agreement discussed above.
44The equalization of pensions is now dealt with under s. 10.1 of the FLA. This section was proclaimed into force in 2012, and was designed to address a number of situations, including the situation where there was insufficient cash to pay an equalization payment. The 2012 amendments to the FLA were intended to allow a division at source of a spouse’s pension, something then only available for federal pension plans.
45Section 10.1(3) of the FLA allows for an immediate transfer of a lump sum from the Respondent’s pension plan. The amount of the lump sum is based upon the imputed value as valued under s. 67.2 of the Pension Benefits Act (the “PBA”):5 see s. 10.1(1) and (2) of the FLA.
46The first step is to determine the commuted value of the Respondent’s pension for equalization purposes. Under paragraph 1 of s. 67.2(6) of the PBA, where the parties are married, the Applicant is entitled to request that value.
47Once that is done, s. 67.3(1) allows for an order for a transfer of a lump sum amount from the Respondent’s pension plan. The order may provide for either a specified amount to be transferred or alternatively “a proportion of the imputed value, for family law purposes, of the member’s pension benefits”. The request in the present case is for a transfer of 50% of the Respondent’s benefits, something that the Respondent agreed to in June, 2015.
48The difficulty is that often a pension administrator requires a signature from the member of the pension plan to obtain a valuation of the commuted value or to divide the pension plan. The PBA permits the Applicant alone to obtain both the commuted value and apply for a division of that commuted value once obtained. Accordingly, there is jurisdiction to dispense with the Respondent’s signature to both the request for the family law value of the pension or for division of the pension: see Wesley v. Wesley, 2015 ONSC 5793 at para. 18.
49There shall be an order to go that the Applicant may obtain a commuted value from the pension administrator for General Motors Canada of the Respondent’s pension plan and that the Respondent’s signature is dispensed for obtaining that valuation.
50There shall also be an order for the immediate transfer of one half of the commuted value of the Respondent’s pension plan, again without the necessity of the Respondent’s signature. The transfer shall be to a retirement savings arrangement of the Applicant’s choice as provided for in para. 2 or 3 of s. 67.3(2) of the PBA.
Spousal Support
51The Applicant requests spousal support retroactive to the date of separation.
52The Respondent has not filed a financial statement. We do know the Respondent’s income for 2012, which was the only year for which the Applicant had a Notice of Assessment for the Respondent. That Notice of Assessment shows income of the Respondent of $111,781, something that the Respondent said in a note that he does not earn presently. The Applicant says that she did her income taxes with the Respondent and his income was consistently in excess of $100,000 per annum.
53Unfortunately, the Respondent has left the court guessing as to his income as we have not had any financial disclosure from him and he did not file a financial statement as required by Rule 13 of the Family Law Rules.6 This requirement stands even if the Respondent does not file an answer as in the present case: see Rule 13(1)(b).
54There are three issues under this heading. The court must firstly resolve the basis for entitlement to support. Next, the incomes of the parties and quantum of spousal support must be determined. Finally, the Applicant’s claim for retroactive support must be determined.
Entitlement to Spousal Support
55The Applicant requests compensatory spousal support.
56There is no claim for a divorce by the Applicant. The basis for spousal support is therefore found under sections 30 and 33(8) of the FLA: “
33 Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.
34 (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).
57A compensatory award focuses on the cost of the marriage relationship to the support claimant. This is especially where a party has suffered economic disadvantage as a result of the assumption of child rearing roles within the marriage.
58The Respondent has worked full time throughout the marriage at General Motors. That is unquestioned. The Applicant testified that she was responsible for the rearing of the parties’ two children from when they were born in 1990 and 1993, and she left her employment in 1990 for this purpose. She said that once the children went to school, she went to work for Burger King on a part time basis. By the date of separation, the Applicant was earning income of $8,790 per annum. Mr. Cirocco had made, in 2012, well over $111,000; his income according to the Applicant remained in that range throughout the last years of the marriage.
59The parties had lived together since 1988 which makes for 26 years of cohabitation.
60Ms. Cirocco also testified that the Respondent controlled the finances and that she received a small allowance from him. She said that she could not shop at Walmart without him being there, and that she had no ability to become self-sufficient at the date of separation.
61Based upon the testimony of the Applicant, I find that this marriage has been at a cost to her of both her career and financial independence. She therefore has a compensatory claim for spousal support under the FLA.
Quantum of Spousal Support
62The Applicant claims spousal support in the amount of $3,952 per month. This is the highest range of spousal support set out in the Spousal Support Advisory Guidelines (the “SSAG”).7
63The Applicant testified that, for some time, she was unable to work because of trauma suffered during the marriage. In 2015, she had almost no income. She is now working part time for 20 hours per week. She makes $.25 more than minimum wage, which works out to $11.65 per hour. At 20 hours per week, her income is $12,116 per annum.
64Mr. Cirocco made nearly $112,000 in 2012. He denies making income as alleged by the Applicant. Mr. Cirocco responded to the application with a note to counsel stating that he would “be contesting this divorce through the courts”. He also said in that note that “I do not make $110,000 a year.”8 In response to the Form 23C affidavit served on Mr. Cirocco, he also sent texts on October 28, 2016; included is a text saying, “I make 110 a year…hahaha…good one”.9
65Texts and notes to counsel are not evidence. It was incumbent upon the Respondent to file a financial statement and attachments which would prove his income even if he did not file an answer: see Rule 13(1)(b) of the Family Law Rules. He did not. The best evidence I have of the Respondent’s income is the 2012 Notice of Assessment as well as the Applicant’s income that the Respondent continued to earn income in excess of $100,000 as of the date of separation. If the Respondent wished to dispute that amount, he should have done what it took to dispute those amounts. He chose not to attend for the trial and has been noted in default. I therefore find that the Applicant earns income of $111,000 per annum for spousal support purposes.
66The Applicant asks for spousal support in the maximum range of the SSAG. Those guidelines confirm that a strong compensatory claim results in spousal support which is generally in the mid-to-high range of support: see Rogerson and Thompson, Spousal Support Advisory Guidelines: The Revised User’s Guide (April, 2016) at p. 45. As well, the amount of the property which is divided can also affect spousal support.
67However, I have rarely seen a case where spousal support was found to be in at the maximum set out in the SSAG. I note that this is a compensatory claim, and that there is a high level of need on the part of the Applicant. In addition, there is no possibility of any immediate and usable property settlement being provided to the Applicant from either the matrimonial home or any other source; there is no net property to divide other than the pension which is deferred to retirement.
68All of these factors lead to an award in the higher end of the range.
69Based upon the SSAG calculation in the materials, I find that the Respondent should pay spousal support in the amount of $3,700 per month, commencing January 1, 2017.
70Spousal support is indefinite based upon the “80” factor in the guidelines.
Retroactive Claim
71The Applicant requests spousal support retroactive to March 1, 2014.10
72The retroactivity of a spousal support claim is driven by different considerations than that of a child support claim. Child support is automatic to some extent: whatever your income is, you pay child support according to the guidelines from the date of separation: see Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269 and D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231.
73Spousal support is not automatic and arises from different considerations than does child support. There is a judicial discretion involved in spousal support for good reason: the payment of spousal support is based upon need, ability to pay and compensation for losses suffered by the recipient as a result of the breakdown of the marriage or the marriage itself. All of these affect retroactivity, especially where there is a lengthy period between separation and trial, where the creation of substantial arrears would create a hardship for the payor, even where it is necessary to remediate a past hardship to the recipient.
74The factors for a retroactive award of spousal support are summarized in Bremer v. Bremer, 2005 CanLII 3938 (ON CA), [2005] O.J. No. 608 (C.A.) and they are listed at para. 9 of the decision:
The considerations governing an award of retroactive spousal support include: i) the extent to which the claimant established past need (including any requirement to encroach on capital) and the payor's ability to pay; ii) the underlying basis for the ongoing support obligation; iii) the requirement that there be a reason for awarding retroactive support; iv) the impact of a retroactive award on the payor and, in particular, whether a retroactive order will create an undue burden on the payor or effect a redistribution of capital; v) the presence of blameworthy conduct on the part of the payor such as incomplete or misleading financial disclosure; vi) notice of an intention to seek support and negotiations to that end; vii) delay in proceeding and any explanation for the delay; and viii) the appropriateness of a retroactive order pre-dating the date on which the application for divorce was issued: see Horner v. Horner, 2004 CanLII 34381 (ON CA), [2004] O.J. No. 4268 (C.A.); Marinangeli v. Marinangeli (2003), 2003 CanLII 27673 (ON CA), 66 O.R. (3d) 40 (C.A.) and Price v. Price, [2002] O.J. No. 2386 (C.A.).
75In Kerr, the court confirmed that the retroactivity of a spousal support is not necessarily automatic as in the case of child support [at para. 208]:
In contrast, there is no presumptive entitlement to spousal support and, unlike child support, the spouse is in general not under any legal obligation to look out for the separated spouse’s legal interests. Thus concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support...
76In that case, the court applied a number of the considerations from D.B.S. to the retroactivity of spousal support: see para. 212. In other words, the court must examine the conduct of the payor, the circumstances of the spouse seeking support as well as any hardship which may be occasioned by the award in determining the retroactivity of the spousal support award in the present case.
77In the present case, the payor did not appear in order to outline the financial impact of a retroactive award on him or whether it would impose a hardship. He also did not provide any financial disclosure whatsoever as to his income other than sending texts and notes to the Applicant and her solicitor. His financial situation may be reflected by the defaults under the mortgage that were placed in evidence, although the texts sent by the Respondent imply that the latest default under the mortgage was purposeful.11 I can assume however that a substantial arrears amount will work a hardship on the Respondent as there is little or no capital available to these parties. If the arrears prove to be impossible to pay, it works a disservice to both parties as the situation then becomes frustrating and difficult to remedy in the short term.
78The Applicant testified as to the hardships that she had suffered since separation. She said that she had little or no income and was unable to work due to post traumatic stress disorder. She said that she had to live with relatives. It was only this year that she was able to obtain employment and that employment was only part time. The Applicant testified that she lived on credit cards for much of this time: in her financial statement she discloses $7,088.11 in credit card debt incurred since separation.
79The Applicant says that between the date of separation and the agreement, she was suffering from PTSD and was unable to take any steps toward gainful employment as a result. After the agreement was signed, she attempted to have the June 1, 2015 agreement formalized but the Respondent was unresponsive. There was another refinancing after which the Applicant finally retained counsel in June of 2016. There were, however, substantial delays in bringing these proceedings which remain unexplained by the Applicant’s evidence.
80As well, is no question that these delays resulted in a diminishment of the Applicant’s capital as reflected by the refinancing of the matrimonial home, which reduced the equity in the home to almost nothing. However, this may be the Applicant’s responsibility as she signed the mortgage documents with two different lawyers, and I cannot believe that both of these transactions were completed without at least some understanding by the Applicant as to what she was doing.
81Finally, I take into account that as of June 1, 2016, the parties agreed that the Respondent would pay spousal support, albeit only in the amount of $250 per week. Based upon the agreement, the Respondent had by then acknowledged the obligation to pay spousal support to Ms. Cirocco.
82I am not willing to make the award of spousal support retroactive to the date of March 1, 2014. There is no evidence that the subject was raised by either party at that time and the Applicant has credit card debt to date of only $7,088, which is considerably less than the retroactive award to that date would have been.
83The second possible date for consideration for a retroactive award would be the date of the agreement, in June of 2015. It is clear that the subject was broached by that time, and the Respondent did not live up to his obligations under that agreement. My concern is that much of the subsequent delay in commencement of proceedings by the Applicant remained unexplained in her evidence. The Applicant gave no evidence as to how long it was between the signing of the agreement and when the Applicant obtained a lawyer to formalize the agreement. It is unclear to me as to why it was not until late June of this year that a demand was sent, more than a year after the handwritten agreement was entered into. I do not find a retroactive amount to the date of the agreement to be warranted either.
84The next logical date would therefore be the date that the Respondent was put on notice of these proceedings, something done by counsel’s demand letter dated June 27, 2016. That letter invited Mr. Cirocco to make financial disclosure and obtain counsel to negotiate a resolution to this matter. The only effect this had on the Respondent was to cause him to send a number of vitriolic and threatening text messages to the Applicant, something that was completely unproductive.
85I therefore make the support award in this matter retroactive to July 1, 2016. This will immediately create 7 months of arrears, being nearly $26,000. To impose a greater amount will result in a debt that would be insurmountable, something also unproductive to either party. As well, without an adequate explanation as to the delay, I do not believe that arrears should go beyond this date notwithstanding the Respondent’s default in his earlier payment of spousal support.
86Because this date is subsequent to the payments of spousal support under the handwritten agreement, there will be no credit toward these arrears for payments made under that agreement.
87The commencement date of spousal support is therefore July 1, 2016.
88In order to allow for an orderly repayment of the arrears created by this order, the Respondent shall repay these arrears by payments of $400 per month commencing February 1, 2017. That payment is in addition to the ongoing payments of spousal support. In the event of a default, the Respondent will be subject to the normal rules of family law support enforcement, which will result in one half of the Respondent’s net pay being applied to spousal support until the arrears are repaid.
89The Applicant has requested support life insurance in the amount of $1,000,000. I have no evidence or calculations indicating that this amount is the correct amount to secure the spousal support that I have ordered. I have no evidence as to the Respondent’s insurability or whether he would be eligible to obtain that insurance.
90I am accordingly going to order that the Applicant be named as beneficiary under the Respondent’s present life insurance policy as available through his employment. That amount is generally two times the Respondent’s income, which would make $200,000 or so available to the Applicant in the event of the Respondent’s death.
91The Applicant shall have coverage under the Respondent’s medical and dental plan as available through his employment.
Costs
92The Applicant has filed a bill of costs. That indicates that Ms. Adeusi and her staff have time on the file of about $8,539.98. Harmonized sales tax would bring that amount up to $9,650.17. Ms. Cirocco also claims disbursements of $1,298.71, inclusive of HST. Total costs on a full recovery basis are therefore $10,948.88.
93The time spent on the file is reasonable considering the issues involved, and the time necessary to prepare and conduct an uncontested trial with viva voce evidence.
94There is no justification or argument that would warrant full recovery costs. Although the Respondent did not provide financial disclosure, this does not constitute misconduct that would warrant full recovery costs. The Applicant shall therefore have her costs on a partial recovery basis.
95The Respondent shall pay the Applicant’s costs in the amount of $6,500 inclusive of disbursements and HST. Because spousal support was in issue in these proceedings, the costs shall be collectable as support.
Order
96There shall therefore be a final order to go as follows:
a. The Respondent shall pay the Applicant spousal support in the amount of $3,700 per month commencing July 1, 2016;
b. The Respondent shall repay any arrears arising under this order by payments in the amount of $400 per month commencing February 1, 2017, provided that if there is a default in payment of support arrears, the whole amount of arrears of spousal support shall be thereupon collectable in full.
c. The Respondent shall designate the Applicant as beneficiary under his life insurance policy as available through his employment and shall provide proof of this designation to the Applicant within 10 days of service of this order.
d. The Respondent shall maintain the Applicant on his extended health and dental benefits as available through his employment, for so long as the Applicant may remain eligible for coverage under that plan.
e. In the event that the Respondent fails to provide coverage under his extended health and dental plan, or fails to remit to the Applicant funds that the Applicant is owed for legitimate costs under that plan, the Applicant may submit her eligible medical costs to the Director FRO and the costs submitted shall be collectable as support.
f. The Applicant may obtain from the pension plan administrator of General Motors Canada a family law value of the Respondent’s interest in his pension plan under the Family Law Act and the Pension Benefits Act without the necessity of the signature or consent of the Respondent/plan member. For the purposes of calculating the family law value of the Respondent’s interest, the date of marriage is March 29, 1990 and the date of separation/valuation date is February 13, 2014.
g. Upon receipt of the valuation of the family law value of the Respondent’s pension plan, the Applicant may thereupon apply for a transfer of one half (50%) of the imputed value from the Respondent’s plan to a prescribed retirement savings arrangement or other prescribed arrangement of her choice, without the necessity of the signature or consent of the Respondent/plan member.
h. Upon the said transfer taking effect, all of the parties’ net family property shall be deemed to be equalized between themselves.
i. The Applicant shall have her costs of this proceeding in the amount of $6,500, collectable from the Respondent as support.
McDERMOT J.
Released: January 5, 2017
Footnotes
- Text dated June 26, 2016 found in Ex. 1
- R.S.O. 1990, c. F.3
- R.S.C. 1985, c. 3 (2nd Supp.)
- Ex. 2
- R.S.O. 1990, c. P.8
- O. Reg. 114/99
- See SSAG calculation at Tab 16 of Ex. 1
- See Tab 19 of Ex. 1
- Tab 12 of Ex. 1
- Although the Applicant’s submissions request spousal support retroactive to March 1, 2015, I expect that this was an error as the draft order makes the spousal support retroactive to March 1, 2014, the month after the date of separation.
- In his texts on June 26, 2016, Mr. Cirocco says that he “will cease now to pay mortgage…for closure (sic.) and u will pay costs” and on October 28, 2016, Mr. Cirocco texts that the “house in (sic.) in arrears…numbers r quite funny…..good luck”.