Court File and Parties
Court File No.: D-21,022-15 Date: 2018-06-15
Superior Court of Justice - Ontario
Re: Gordon William Ward Drysdale, Applicant And: Donna Lee Heggie, Respondent
Before: The Honourable Mr. Justice John S. Poupore
Counsel: Jerome Gardner, Counsel for the Applicant Matti Mottonen, Counsel for the Respondent
Heard: June 9, 2018
Endorsement
[1] This is a motion and cross-motion brought by a husband and wife after a 27 year relationship.
[2] The applicant husband is 69 years old. He has earned his income as an artist.
[3] The respondent is 55 years old and works as a pharmacist on contract.
[4] The parties began residing with each other in 1987, married in 1991 and separated on July 3, 2014. They have three children who have all reached the age of majority, none of whom are currently furthering their education.
[5] The husband discloses an income for support purposes of $21,310. The wife discloses an income of $82,200.
[6] At the time of separation, the parties resided in a jointly owned matrimonial home with four bedrooms and a large basement where the husband has been storing a very large number of unsold art works.
[7] Since the separation, the wife has lived outside the home. No spousal support has been paid; however, the wife has paid some expenses on the house.
[8] The husband’s issues raised in the motion are:
- Exclusive possession of the matrimonial home;
- Spousal support which would be secured by a life insurance policy; and
- An insurance cheque payable to both parties.
[9] The wife’s issues raised in the cross-motion are:
- Compliance by the husband with the Order of Del Frate J. dated September 28, 2017;
- Further and better disclosure;
- An Order amending the wife’s pleading to add a claim for occupation rent and for the sale of the matrimonial home;
- Occupation rent; and
- Sale of the matrimonial home.
Position of the Husband
[10] The husband states that although the child Shannon is no longer eligible for support, she is still residing in the matrimonial home and requires it as her residence. Further, because the wife has not paid spousal support, he is not in a position to afford alternate accommodations.
[11] The husband also seeks spousal support. The husband as an artist has and continues to earn far less than the wife. The wife has not paid any spousal support since the date of separation in 2014. The husband also seeks an order securing the support payment by having the wife name him as beneficiary under her life insurance policy.
Position of the Wife
[12] The wife argues that the husband could earn more and therefore income ought to be attributed to him. Further, the wife argues that the Spousal Support Advisory Guidelines ought not apply in this case.
[13] The wife seeks an immediate sale of the matrimonial home together with occupation rent from the husband.
Discussion
[14] I am satisfied that the husband does not have a valid right under the Family Law Act, R.S.O. 1990, c. F.3, which would defeat the right of the wife who is a joint owner to seek a sale of the matrimonial home pursuant to the Partition Act, R.S.O. 1990, c. P.4.
[15] The husband shall immediately list the matrimonial house for sale at a price to be agreed upon or fixed by the Court. The husband shall further cooperate with the listing agent in selling the property.
[16] Without a trial, I see no issue as to the husband’s entitlement to spousal support. He is 69 years old, the union was of considerable length and the husband seeks nothing more than what existed throughout the course of the marriage.
[17] I accept the DivorceMate calculations filed by the husband. He is entitled at this point to the mid-range of support contained in that printout. The husband’s arguments to the contrary are not accepted.
[18] Further, the wife shall secure the support payment by naming the husband the primary beneficiary on her life insurance policy.
[19] There is no doubt that the husband has had exclusive possession of the matrimonial home since separation. However, the wife has not paid any spousal support. The husband also required the home to house one or more of the children while they were dependant. For those reasons, occupational rent is not payable.
[20] There was also an issue with a cheque payable from an insurance claim which the wife refuses to sign so the husband can collect on a claim that he made. I am not going to wade into these muddy waters save to say that if for some reason the husband is entitled to the payment of these funds and the wife prevents this, then the wife may end up being responsible to pay these funds personally.
[21] An Order shall issue as follows:
- The husband shall immediately list the matrimonial house for sale at a price to be agreed upon or fixed by the Court. The husband shall further cooperate with the listing agent in selling the property.
- The wife shall pay interim spousal support to the husband in the amount of $2,315 on the first day of each and every month commencing May 1, 2018, based on an annual income of $83,200 and $21,310 for him. The spousal support shall be secured by the wife by naming the husband the primary beneficiary of her insurance policy.
- The wife’s pleadings shall be amended to include a claim for the sale of the matrimonial home and for occupation rent.
- The husband’s claim for exclusive possession is dismissed.
- The wife’s claim for occupation rent is dismissed.
- Both parties have obtained some success. As a result, neither shall receive costs of the motions.
The Honourable Mr. Justice John S. Poupore
Date: June 14, 2018