COURT FILE NO.: FS-17-0100-00
DATE: 2018-09-11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Karen Schneidermeier
T. Matthews, for the Applicant
Applicant
- and -
Gary Bernosky
B. Smith, for the Respondent
Respondent
HEARD: May 24, 25 and 30, 2018, at Thunder Bay, Ontario
Mr. Justice D.C. Shaw
Reasons For Judgment
[1] The issue to be determined is whether income should be imputed for the purposes of spousal support.
Background
[2] The applicant, Karen Schneidermeier, and the respondent Gary Bernosky, began to live together in 1985. They were married in September 1988. They separated on September 19, 2016.
[3] There are three children of the marriage, all of whom are now adults and independent.
[4] Ms. Schneidermeier is 56 years of age. Mr. Bernosky is 59 years of age.
[5] In 1988, after the birth of the first of the three children, Ms. Schneidermeier left her employment of four years as a legal secretary and remained at home as a full-time homemaker. She was not employed as of the date of separation.
[6] Ms. Schneidermeier does not have a grade 12 diploma. In January 2018, approximately 16 months after separation, Ms. Schneidermeier enrolled in a nail technician course in Winnipeg. She completed the course and received a diploma in April 2018. The diploma allows her to enter an apprenticeship program requiring approximately 900-1000 hours, during which time she would be paid the minimum wage in Manitoba of approximately $11.25 to $11.40 per hour. At the time of trial, Ms. Schneidermeier had not yet enrolled in an apprenticeship program.
[7] The parties entered into a separation agreement, dated October 12, 2016. The separation agreement dealt with the parties’ net family property. The separation agreement provided that spousal support remained to be determined. Ms. Schneidermeier received approximately $141,000.00 deposited into a Locked-In Retirement Account (“LIRA”). Ms. Schneidermeier will receive a further payment into her LIRA as part of the property settlement in the amount of $8,000.00 in 2018 and $64,000.00 by 2019.
[8] Since the date of separation, Ms. Schneidermeier has relied on the monies in her LIRA for support. As of May 7, 2018, she had approximately $79,480 remaining in her LIRA.
[9] Mr. Bernosky’s employment and health will be reviewed in greater detail below. However, for background purposes, a synopsis of his employment is set out here.
[10] Mr. Bernosky started employment at the Abitibi Mission Mill in Thunder Bay in 1976 following his graduation from high school. He obtained accreditation as a 3rd class stationary engineer in 1985.
[11] In 2007, approximately 30 years after Mr. Bernosky began his employment, the Abitibi Mission Mill shut down. Mr. Bernosky obtained employment in Chapleau for about a year. In July 2009, Mr. Bernosky obtained employment as a 3rd class stationary engineer at the Abitibi (Resolute) Fort Frances Mill. He worked at the Fort Frances Mill until February 2013 when the Mill was in the process of shutting down.
[12] After leaving the Fort Frances Mill, Mr. Bernosky was employed by five different employers until March 2016. On March 2, 2016, Mr. Bernosky began employment on a probationary basis with Sobey’s in Winnipeg as a 3rd class stationary engineer. This probationary employment was terminated by Sobey’s on September 20, 2016, the day after Mr. Bernosky and Ms. Schneidermeier separated.
[13] Mr. Bernosky has not been employed since his termination by Sobey’s. After that termination, Mr. Bernosky received unemployment insurance benefits from September 2016 to May 2017.
[14] Mr. Bernosky’s sole income at present is $821.00 per month from a Registered Retirement Income Fund (“RRIF”).
[15] As of April 25, 2018, Mr. Bernosky had approximately $86,800 in his RRIF.
[16] Mr. Bernosky denies that he is intentionally unemployed and submits that no income should be imputed to him beyond the $821.00 per month that he is withdrawing from his RRIF.
[17] By agreement at trial, in addition to viva voce evidence, the parties filed as exhibits certain affidavits contained in the Trial Record. Mr. Bernosky also introduced into evidence at trial, on consent, certain medical records and reports.
Mr. Bernosky’s Employment
[18] Mr. Bernosky testified that when he began employment at the Abitibi Fort Frances Mill in July 2009, there was no seniority carry-over from his approximately 30 years of employment at the Abitibi Mission Mill in Thunder Bay. He started at the Fort Frances Mill as a Spout Man and then moved to become a Leader Operator. Neither of those positions required a 3rd class stationary engineer certificate. About a year after he began working at the Fort Frances Mill, he took a six week training course to be a Recovery Operator Assistant, which did require a 3rd class stationary engineer ticket. Mr. Bernosky did not complete the course and he did not get the Recovery Operator Assistant position. Mr. Bernosky testified that his failure to get the position was because he was making mistakes on the job arising out of “memory issues.”
[19] Mr. William Smeltzer testified at trial. His affidavit was also entered into evidence. Mr. Smeltzer worked as a supervisor at both the Abitibi Mission Mill in Thunder Bay and at the Abitibi Fort Frances Mill during Mr. Bernosky’s employment at the Mills. Mr. Smeltzer became the Chief Engineer at the Abitibi Mission Mill in 1985, overseeing the entire plant. Mr. Bernosky reported to a Shift Engineer who, in turn, reported to Mr. Smeltzer. At the Fort Frances Mill, Mr. Smeltzer was the Chief Operating Engineer and the Recovery Superintendent. Mr. Bernosky worked in the Recovery section of the Fort Frances Mill.
[20] Mr. Smeltzer said that over the course of Mr. Bernosky’s employment at the Fort Frances Mill, he observed a change in Mr. Bernosky and Mr. Bernosky’s ability to perform the required tasks of his employment.
[21] Mr. Smeltzer said that when he first began working with Mr. Bernosky, Mr. Bernosky would need to take some time to learn new equipment and procedures, but once he had learned, he was very reliable and consistent in performing his duties.
[22] However, over time at the Fort Frances Mill, Mr. Bernosky became less dependable. He took longer to pick up new skills, struggled to apply learned skills to new, yet similar, situations and made many unexplained errors in his assigned tasks.
[23] Because of the frequency his errors, Mr. Bernosky was overlooked for promotions. Mr. Smeltzer said that members of Mr. Bernosky’s team were uncomfortable or unwilling to work with Mr. Bernosky because of safety concerns arising from the errors.
[24] Mr. Smeltzer became aware in or about 1979 that Mr. Bernosky was a recovering alcoholic. In 2013, he learned that Mr. Bernosky was drinking again. He said that he had never seen Mr. Bernosky under the influence of alcohol at work.
[25] Mr. Smeltzer said that, as the Fort Frances Mill was preparing to close, persons who worked in the Recovery section, where Mr. Bernosky worked, were receiving termination notices. Mr. Bernosky resigned after receiving his termination notice. In the ordinary course, Mr. Bernosky would not have received his termination notice for another two months because of his seniority. However, Mr. Smeltzer testified that Mr. Bernosky was moved up in line to get his termination notice before more junior employees in order to allow him to resign without a black mark on his record stemming from his performance issues. Mr. Smeltzer said that those performance issues would have led Mr. Bernosky “to be moved out the door.”
[26] After Mr. Bernosky left the Fort Frances Mill, he asked Mr. Smeltzer if he could use Mr. Smeltzer as a reference. Mr. Smeltzer agreed. He testified he believed that he was contacted by several prospective employers, probably in 2014. Mr. Smeltzer said that he gave an accurate reference that balanced the positive and negative aspects of Mr. Bernosky’s attributes, that Mr. Bernosky was not capable of being an Operator but was able to do field work where he would be asked to look at something and report back and carry out decisions of the Operator.
[27] Mr. David Abercrombie worked with Mr. Bernosky for approximately two and a half years at the Fort Frances Mill. Mr. Abercrombie was employed at the Fort Frances Mill for approximately 20 years. In his affidavit filed at trial, Mr. Abercrombie said that, while working with Mr. Bernosky, Mr. Bernosky often had trouble remembering key procedural steps of his job and frequently required more supervision and support than would typically be required of an employee in his position. He said that Mr. Bernosky would frequently ask him the location of certain pieces of equipment and of valves and lock-out devices. Mr. Abercrombie said that this was information that Mr. Bernosky should readily have known given his profession and the required skill set. Mr. Bernosky had to be repeatedly shown how to complete certain elements of his job more frequently than the average worker, especially for a worker of Mr. Bernosky’s experience.
[28] Mr. Abercrombie said that it was evident to him that other members of the crew did not like working with Mr. Bernosky because of his performance errors. Shift Supervisors and Senior Operators complained on several occasions of Mr. Bernosky’s performance and his unexplained errors. Mr. Abercrombie said that he would frequently be asked by the Senior Operators to keep an eye on Mr. Bernosky to ensure that proper procedures were followed and no errors occurred. Mr. Abercrombie cited examples of Mr. Bernosky’s frequent errors and memory lapses. During relative routine procedures, Mr. Bernosky forgot to properly seal valves and to reset a series of valves by opening some and closing others. These critical errors and omissions caused delays and negatively impacted production. When asked why he had made such errors, Mr. Bernosky responded that he forgot or could not remember whether he had or had not done certain of the steps of his assigned tasks. He forgot which valves he had opened and closed.
[29] Mr. Bernosky testified that although he had received training at the Fort Frances Mill to become a Recovery Operator Assistant, which required a 3rd class stationary engineer ticket, mistakes that he made on the job and memory issues led Mr. Smeltzer and other team members to decide that he should remain in the position of Loader Operator.
[30] Mr. Bernosky said that because of the mistakes he was making on the job he was given an ultimatum by the Fort Frances Mill in 2013 to quit his job or deal with the Ontario Technical Standards and Safety Authority (“TSSA”). TSSA had the right to terminate Mr. Bernosky’s ticket as a 3rd class stationary engineer for performance issues.
[31] Mr. Bernosky testified said that the mistakes he made were due to his memory problems.
[32] Mr. Bernosky testified that he had a history of alcoholism. He had stopped drinking for 15 years until the Abitibi Mission Mill closed in 2007. He started drinking again after the Mill closed, having 5 to 10 beers on his days off. Mr. Bernosky said there was an incident at the Fort Frances Mill in 2013 where a supervisor smelled alcohol on Mr. Bernosky’s breath at 4:45 a.m. He had consumed 6 or 7 beers before coming into work. Mr. Bernosky said that he left work and went to the Ontario Provincial Police station to request a breathalyzer, but the police would not administer one. He said that he was not disciplined for this incident and that, in fact, he had never been disciplined at the Abitibi Mission Mill or the Fort Frances Mill. About three months after the incident, the Fort Frances Mill asked him to get a letter from the Ontario Provincial Police confirming that he had gone there. Mr. Bernosky obtained a letter. Mr. Bernosky said that he was not terminated by the Fort Frances Mill but rather that he quit. He had been warned that the early morning drinking episode might come out in discussion with the TSSA and that he could lose his ticket as a 3rd class stationary engineer. Mr. Bernosky testified that he was given an ultimatum to either quit his job or deal with the TSSA.
[33] After Mr. Bernosky left the Fort Frances Mill in February 2013, he obtained employment in March 2013 at Weyerhaeuser in Kenora. Mr. Bernosky testified that although the job required a 2nd class stationary engineer ticket, TSSA allowed him to apply with his 3rd class ticket on the condition that he obtain his 2nd class ticket. Mr. Bernosky said that he studied for three or four months for his 2nd class ticket but that he was unable to write a single exam. He was not allowed to stay on the job because he could not pass the exam.
[34] Mr. Bernosky then worked for Force Rentals in Virden, Manitoba from November 2, 2013 to March 28, 2014. He said that the work there was not steady. He worked next for Discovery Safety Services Ltd. from April 28, 2014 to August 18, 2014. He then returned to Weyerhaeuser in August 2014 when the company called him back. However, he was let go later that month when the company found a 2nd class stationary engineer for the position. He worked for Sierra Construction in Kenora from August 27, 2014 until April 3, 2015. After that employment ended, he again worked at Force Rentals, from November 5, 2015 to February 21, 2016.
[35] While Mr. Bernosky was at Force Rentals, he searched online for other employment, through the job search website, “Indeed”, and on a human resource website, “Acuity HR”.
[36] He obtained an offer of probationary employment as a 3rd class stationary engineer with Sobey’s at its warehouse in Winnipeg, commencing March 1, 2016. The probationary period was for 90 days, with Mr. Bernosky’s performance to be reviewed at the end of the period when a decision would be made to either end the probationary period or, if there were concerns about performance, to extend the probationary period by a further 30 days. Mr. Bernosky’s starting salary was $27.00 per hour for a 40 hour week. His duties were to provide maintenance of all mechanical systems and equipment. The warehouse stored perishable food products for distribution to Sobey’s grocery stores in Winnipeg.
[37] Mr. Bernosky made significant errors during his probationary period. These errors were reviewed with him by his supervisor, Grant Hildebrand, the Chief Operating Engineer. Mr. Bernosky said that the errors identified by Mr. Hildebrand included omitting steps set out in a checklist, but indicating on the checklist that the steps had been taken, closing the wrong valves or closing them in the wrong order and shutting off the wrong pumps. As a result of improperly shutting down a pump, the entire mechanical system went down. Mr. Bernosky did not realize what he had done until an alarm went off. Mr. Bernosky had to call Mr. Hildebrand to get the plant operating again.
[38] Mr. Bernosky attributed these errors to issues with his memory.
[39] Mr. Hildebrand had discussions with Mr. Bernosky about his performance. In a letter to Mr. Bernosky dated July 11, 2016, Mr. Hildebrand advised that he would extend the probationary period by 30 days. He said that although he had seen some improvement, he still had concerns about Mr. Bernosky’s ability to do the job.
[40] Mr. Hildebrand re-assessed Mr. Bernosky’s performance at the end of the 30 day probation extension. In a letter to Mr. Bernosky dated August 19, 2016, Mr. Hildebrand confirmed that he had spoken to Mr. Bernosky about Mr. Bernosky’s failure to provide a reasonable explanation as to why he had failed to complete certain instructions, even though Mr. Bernosky had indicated on a company form that he had completed the work. Mr. Hildebrand advised Mr. Bernosky that he would remain on probation “until such time as you have demonstrated significant improvement in these areas.”
[41] Mr. Bernosky testified that he thought that the forms and computer checklists that Mr. Hildebrand required him to complete were “overkill.” He said that they resulted in too much stress which in turn caused him to forget things. He said that his memory seemed to get worse under stress.
[42] Following the August 19, 2016 letter from Mr. Hildebrand, Mr. Bernosky continued to make mistakes at work. The most eventful of these mistakes occurred when Mr. Bernosky shut down the wrong pump on his computer while cleaning a condenser. After he cleaned the condenser, he forgot to start one of the pumps. His relief engineer discovered the mistake which could have led to a loss of refrigeration for the plant and spoilage of the food in the warehouse. The employee relieving him restarted the pump. Mr. Bernosky was terminated the next day. Mr. Hildebrand wrote a letter dated September 20, 2016, delivered by hand, which advised Mr. Bernosky of his immediate termination. Mr. Hildebrand stated that Sobey’s had given him ample time to learn the skills required for performing his duties, but that the repeated incidents of omissions and errors could not be allowed to continue. Mr. Hildebrand escorted Mr. Bernosky off the premises.
Mr. Bernosky’s Health
[43] Mr. Bernosky said that in March 2016 he had begun to feel unwell, which he attributed to stress.
[44] On August 11, 2016, Mr. Bernosky saw Dr. Patel in Winnipeg for his unwellness. Dr. Patel scheduled a CT scan of Mr. Bernosky’s brain.
[45] On October 3, 2016, Mr. Bernosky saw Dr. Mehrabi in the same clinic to review the CT scan. The CT scan was normal. Dr. Mehrabi noted that Mr. Bernosky had been suffering from dizziness and memory loss for a few months. He noted that Mr. Bernosky may have vertigo. Mr. Bernosky returned to see Dr. Mehrabi on December 16, 2016. Dr. Mehrabi noted that the vertigo had improved and that Mr. Bernosky was not suffering from any condition that would affect his ability to drive. At an appointment on February 16, 2017, Dr. Mehrabi noted that Mr. Bernosky’s vertigo had improved.
[46] Mr. Bernosky attended on Dr. Kashefi in Winnipeg on March 3, 2017 regarding the aggravation of a long standing hernia. Dr. Kashefi also referred Mr. Bernosky to an ear specialist to determine if he had vertigo. The test results came back negative.
[47] After Mr. Bernosky moved to Riverton, Manitoba, he began to see Dr. Rhoma in Gimli, Manitoba for memory problems. In a letter dated November 9, 2017, Dr. Rhoma said that he had seen Mr. Bernosky regarding Mr. Bernosky’s memory loss. Dr. Rhoma referred Mr. Bernosky to the area community health services for this issue.
[48] In October 2017, Mr. Bernosky met with Judith Hill, a mental health counsellor. Subsequently, Mr. Bernosky began seeing Heather Yanke, a Community Mental Health Worker. As of the trial, he was continuing to see Ms. Yanke for anxiety, memory problems and a general feeling of sickness.
[49] In a letter dated April 21, 2018, Ms. Yanke indicated that Mr. Bernosky had consistently attended what by then had been three appointments and that he appeared to be “…motivated to work on his mental health.”
[50] Dr. Rhoma moved to Winnipeg. He referred Mr. Bernosky to Dr. Dylan Thompson, a family practitioner in Gimli, Dr. Thompson then referred Mr. Bernosky to Dr. Andrew Gomori, a neurologist in Winnipeg for neurologic assessment. Dr. Gomori saw Mr. Bernosky on January 22, 2018. In a report to Dr. Thompson, dated January 24, 2018, Dr. Gomori related that Mr. Bernosky had a documented history of alcohol and memory problems. Dr. Gomori stated that the formal neurological examination was within normal limits. He said that it did not appear that Mr. Bernosky had a “significant memory deficit.” However, Dr. Gomori suspected that “…he has some problem with short term memory.” Dr. Gomori said that his main concern was that Mr. Bernosky may have “alcoholic cerebellar degeneration.”
[51] In a letter dated March 27, 2018 to Dr. Thompson, Dr. Gomori advised that he had seen Mr. Bernosky for neurologic follow-up on March 26, 218. An MRI scan was normal. Dr. Gomori suggested a psychiatric referral for dealing with Mr. Bernosky’s anxiety and depression. Dr. Gomori said that Mr. Bernosky’s neurologic examination was normal, apart from Mr. Bernosky’s memory issues. He said that he had urged Mr. Bernosky to stop drinking. Mr. Bernosky received a psychiatric referral. Mr. Bernosky testified at trial that he had not seen a psychiatrist but that he intended to do so.
[52] In March 2018, Dr. Thompson prescribed an anti-depressant for Mr. Bernosky to take on a daily basis.
[53] On May 9, 2018, Dr. Thompson wrote the following:
Mr. Gary Bernosky is followed by me for the treatment of depression, cognitive decline, and anxiety. He has objective evidence of cognitive decline/memory loss. (Montreal cognitive assessment score of 24/30, mini mental status of 22/30). He has been seen by neurology and organic causes of memory loss have been excluded.
It is strongly suggested that his memory loss is secondary to emotional and psychological trauma, which has been exacerbated by his recent divorce and loss of employment. Unfortunately due to the severity of his illness, he is presently unsafe to work in his prior area of employment.
[54] Mr. Bernosky testified that the anti-depressant medication has improved his condition a small amount. He does not feel as sick, for example, feeling that he will throw up. He said that his memory is slightly improved and that he is not forgetting as many things during the week as he used to do. He said he still suffers from vertigo, but that it has improved.
[55] Mr. Bernosky acknowledged that he was a reformed alcoholic. He said that he started drinking again after the Abitibi Mission Mill shut down. He said that he has not drunk as much in the past two years as he did in prior years.
[56] He said that before he went on his anti-depressant medication, he had reduced his drinking to five or six glasses of wine per week, in order to get to sleep, and three to five beers on a weekend. He said that after he began his medication, he almost stopped drinking completely. He said that he now takes medication to go to sleep, rather than having a glass or two of wine.
Mr. Bernosky’s Living Arrangements
[57] Mr. Bernosky testified that he began living with Margaret Augustine in Winnipeg in June 2016, before the date of separation, in an apartment that he rented. They shared the rent. In August 2017, they moved into a trailer that Ms. Augustine had purchased. She later sold that trailer and bought a new one in Riverton. Mr. Bernosky said that he and Ms. Augustine share the expenses for the home, such as groceries and utilities.
[58] Mr. Bernosky said that Ms. Augustine’s income is from a widow’s pension and a small LIRA.
Mr. Bernosky’s Applications for Employment after Termination from Sobey’s
[59] At trial, Mr. Bernosky produced a book of 101 job applications that he had sent out between January 7, 2016 to May 3, 2018. The applications were for jobs in several provinces, predominately Ontario, Manitoba and Alberta. Approximately 80 of the job applications were after Mr. Bernosky’s termination from Sobey’s. Five of the 80 applications were in 2016, 25 were in 2017 and 50 were in 2018, up to the time of trial. The jobs applied for included 3rd, 4th and 5th class Power (Stationary) Engineer, Shift Engineer, Mill Operator, Control Room Operator, Swing Facility Operator, Equipment Operator, Boiler Operator, Assistant Operator, Feed Mill Machine Operator, Heavy Equipment Operator, Class 3 Driver, Water Truck Operator and Heavy Duty Tow Truck Operator.
[60] The job applications produced were all from the job search website, “Indeed.” Mr. Bernosky testified that he had also looked for jobs on the website, “Workopolis,” but that all his applications were through Indeed.
[61] Mr. Bernosky was in contact with Service Canada for help in preparing his resumé.
[62] Mr. Bernosky testified that he had also applied for jobs on his cell phone but that he could not obtain records of his applications. He said that he had to delete these job applications that had been stored on his cell phone because his data time was exhausted.
[63] Mr. Bernosky produced a letter from Indeed confirming that the company did not store information about positions for which Mr. Bernosky had applied that he may have deleted. Indeed said that they would not be able to create a list for him for those applications made by way of cellphone.
[64] Mr. Bernosky was cross-examined on why he did not apply for jobs between October 9, 2016 and December 30, 2016. He said it was because he was preparing the matrimonial home in Thunder Bay for sale.
[65] Mr. Bernosky also said that during the 12 months after September 20, 2016, he spent about two hours per week looking for jobs.
[66] In December 2017, he applied for about 18 jobs. When asked on cross-examination as to why he made so many applications that month he said that he owed money for legal fees and that he was “motivated” by his need for money. He said that before December 2017 he had more money and fewer “bills”. He said that he had a line of credit with the Royal Bank on which $12,000 was owing as of the date of separation which had increased to $40,000.00 as of the date of trial.
[67] Mr. Bernosky said that he wants to work but believes that he would be unsafe returning to a position of stationary engineer because of his memory issues.
[68] Mr. Bernosky said that he has not disclosed his health issues in his job applications. He said that on one occasion he was called by a job recruiter. He told the recruiter that he was not working due to health issues.
[69] Mr. Bernosky acknowledged that after separation he told Ms. Schneidermeier that he would apply for disability benefits. He has not applied for disability benefits. He acknowledged that he may have told Ms. Schneidermeier that he would rather go on welfare than pay support. He said that Ms. Schneidermeier was “pestering” him every day for support and that both of them were upset when they argued about support. Mr. Bernosky also acknowledged that he probably told Ms. Schneidermeier that he was sick of working. He said that he had worked for 40 years. He said that he still has to work, however, to cover his debt of $200,000.00.
[70] Mr. Bernosky denied that he wanted to be fired from Sobey’s. He said that he was very upset when he was escorted off the Sobey’s premises by Mr. Hildebrand.
Submissions
Ms. Schneidermeier
[71] Ms. Schneidermeier has calculated that during the three years prior to separation, Mr. Bernosky had an average annual income of $66,724.00. She submits that Mr. Bernosky is intentionally unemployed and that an average annual income of $66,724.00 should be imputed to him retroactive to the date of separation. She asks that spousal support be set at $2,433.00 per month, which is the midpoint of the range set out in the Spousal Support Advisory Guidelines based on an income imputed to Mr. Bernosky of $66,724.00 and no income for Ms. Schneidermeier.
[72] In the alternative, Ms. Schneidermeier submits that Mr. Bernosky’s income of $46,678.00 for 2016 should be imputed to him, with no income for her, and that he be ordered to pay midpoint Guideline spousal support of $1,702.00 per month.
[73] In the further alternative, Ms. Schneidermeier submits that $66,724.00 be imputed to Mr. Bernosky, that $10,000.00 be imputed to her, with midpoint Guideline support of $2,068.00 per month.
[74] Ms. Schneidermeier submits that the major reason why Mr. Bernosky was terminated from Sobey’s was because he thought that the work orders were overkill and he did not feel like completing them properly.
[75] Ms. Schneidermeier points out that after separation, Mr. Bernosky said that he was sick of working and that he may go on welfare before paying support.
[76] Ms. Schneidermeier submits that Mr. Bernosky did not take reasonable efforts to apply for jobs and, in particular, that his book of job applications shows only 8 applications during the 12 months after separation. She observes that Mr. Bernosky said that he searched for work about two hours per week.
[77] Ms. Schneidermeier notes that Mr. Bernosky told one of his family doctors, Dr. Kashefi, that he was “retired.” She submits that Mr. Bernosky, in fact, is retired.
[78] Ms. Schneidermeier submits that Mr. Bernosky has not complied with doctors’ recommendations to quit drinking.
[79] She submits that Mr. Bernosky only searched more aggressively for work in December 2017, after this case was set down for trial. She points out that he testified that he was searching for jobs because he was running out of money, not that he was searching for work to enable him to pay spousal support.
[80] Ms. Schneidermeier submits that Mr. Bernosky is intentionally unemployed because he has not actively sought work in accordance with his abilities and that his failure to obtain work is not justified by any medical condition.
[81] Ms. Schneidermeier submits that Mr. Bernosky’s position that he is unable to work because of memory issues is inconsistent with his position that he has looked for employment.
[82] Ms. Schneidermeier submits that Mr. Bernosky did not apply for jobs between October 9, 2016 and December 30, 2016, between January 28, 2017 and May 2, 2017 and between May 4, 2017 and September 28, 2017.
[83] Ms. Schneidermeier submits that it is inconsistent that Mr. Bernosky was able to have continuous employment after he left the Fort Frances Mill up to his termination from Sobey’s, but that he has had no interviews or job offers since his termination from Sobey’s. Ms. Schneidermeier submits that Mr. Bernosky should have sought out a recruiter, applied for different jobs, hired someone to do a better resumé and retrained.
[84] Ms. Schneidermeier submits that a support order would motivate Mr. Bernosky to find employment.
[85] Ms. Schneidermeier submits that Mr. Bernosky called no viva voce evidence about his medical condition. Ms. Schneidermeier is critical of Dr. Thompson’s medical report of May 9, 2018 on the basis that there is no curriculum vitae from Dr. Thompson and no evidence that Dr. Thompson has any expertise in cognitive issues. She is critical that Dr. Thompson did not testify at trial. She says that Dr. Thompson, as a family doctor, wants to help out Mr. Bernosky, as his patient.
[86] Ms. Schneidermeier submits that if Mr. Bernosky in fact has memory issues, those issues are explained by his abuse of alcohol.
[87] Ms. Schneidermeier submits that no income should be imputed to her. She says at her age, having not been employed for 30 years, that even having completed a nail technician course her prospects are uncertain and that she is unlikely to find full-time work. She submits that she should not be required to draw on her capital for income.
Mr. Bernosky
[88] Mr. Bernosky submits that he cannot be criticized for leaving his employment at the Fort Frances Mill. He had been told that he should resign or else he would face termination. He understood that termination would be a threat to his certification as a 3rd class stationary engineer through TSSA. In any event, the Mill was closing and his employment there would have otherwise ended shortly after he resigned.
[89] Mr. Bernosky submits that the fact that he had six jobs in the three years between 2013 before taking probationary employment with Sobey’s in 2016 showed that he did not have stable employment after he left the Fort Frances Mill.
[90] Mr. Bernosky points to the evidence of Mr. Smeltzer and Mr. Abercrombie as confirmation that his memory issues caused him significant difficulties in carrying out his assigned duties. He said that the mental lapses that occurred at Sobey’s were a continuation of the issues that occurred at the Fort Frances Mill. These issue led to unacceptable risks, both in loss of production and the possibility of serious injuries to co-workers.
[91] Mr. Bernosky points to his attendances on physicians and mental health workers to address his memory issues. He refers to Dr. Thompson’s medical report of May 9, 2018, delivered shortly before trial, setting out a diagnosis of cognitive decline/memory loss.
[92] Mr. Bernosky submits that he has been diligent in his search for employment following his termination by Sobey’s. He points out that when applying for a job on October 4, 2016, he indicated that he intended to stay in the work force for another 10 years.
[93] Mr. Bernosky states that the book of job applications that was filed at trial shows that he did not limit his applications to only a position of 3rd class stationary engineer. Although the majority of the positions were as a stationary engineer, there were 17 other occupations for which he applied.
[94] Mr. Bernosky submits that his alcoholism is not a voluntary condition. He states that after Dr. Gomori’s letter of March 27, 2018, he reduced his alcohol intake.
The Law
[95] The parties agree that the provisions of s. 19(1)(a) of the Federal Child Support Guidelines (the “Guidelines”), allowing the court to impute income for the purposes of child support, are applicable in this case on the question of whether income should be imputed for the purposes of spousal support. See Rilli v. Rilli, 2006 3445 (Ont S.C.J.) at paras. 14-18. The parties also agree that in applying s. 19(1)(a) of the Guidelines, the matter must be considered in accordance with the reasons of the Ontario Court of Appeal in Drygala v. Pauli (2002), 2002 41868 (ON CA), 61 O.R. (3d) 711 (C.A.) .
[96] Section 19(1)(a) of the Guidelines provides:
19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;
[97] In applying the provisions of s.19(1)(a) of the Guidelines, Drygala sets out a three step analysis.
Is the spouse intentionally under-employed or unemployed?
If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational or health needs?
If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?
[98] Drygala also holds that there is no need to find a specific intent to evade support obligations before income can be imputed. There is no requirement of bad faith. “Intentionally” means a voluntary act. The spouse is intentionally unemployed when he or she chooses not to work when capable of earning an income. At para. 28,
The word “intentionally” makes it clear that the section does not apply to situations in which, through no fault or act of their own, spouses are laid off, terminated or given reduced hours of work.
[99] The spouse seeking support has the burden of proving that the spouse from whom support is sought is intentionally unemployed. If that burden is not satisfied, that is the end of the inquiry. If the court concludes that the burden has been met, the burden shifts to the respondent to prove that his employment status is because of his health. See Rilli, para. 18.
Discussion
[100] I am not satisfied that Ms. Schneidermeier has met the burden of proving that Mr. Bernosky is intentionally unemployed.
[101] I am satisfied that Mr. Bernosky suffers from cognitive decline or memory loss which was directly responsible for the termination of his probationary employment by Sobey’s.
[102] This finding is based on the evidence of Mr. Smeltzer, Mr. Abercrombie, Mr. Hildebrand and Dr. Thompson. This evidence is consistent with Mr. Bernosky’s own assertions that he had memory issues that seriously interfered with his ability to do the tasks required in his employment.
[103] Mr. Smeltzer had worked with Mr. Bernosky, as a supervisor, for over 30 years at the Abitibi Mission Mill in Thunder Bay and then from 2009 to 2013 at the Fort Frances Mill. Mr. Smeltzer was well placed, as Chief Engineer at the Abitibi Mission Mill and as the Chief Operation Engineer and Recovery Superintendent at the Fort Frances Mill, to observe Mr. Bernosky and to describe Mr. Bernosky’s performance issues at work. Mr. Smeltzer observed a change in Mr. Bernosky’s ability to perform the tasks required of him at the Fort Frances Mill. He described how Mr. Bernosky took longer than expected to pick up new skills, struggled to apply learned skills and made many unexplained errors in his assigned tasks. Because of the frequency of Mr. Bernosky’s errors, he was overlooked for promotions and his team members were unwilling to work with him. Mr. Smeltzer said that Mr. Bernosky’s early resignation from his employment at the Fort Frances Mill was prompted by steps that management would have taken to terminate him.
[104] Mr. Abercrombie was a 20 year employee of the Fort Frances Mill and a co-worker of Mr. Bernosky for two and a half years. Consistent with the observations of Mr. Smeltzer, Mr. Abercrombie said that Mr. Bernosky often had trouble remembering key steps of his job. He spoke of Mr. Bernosky’s memory problems in locating essential pieces of equipment whose whereabouts he should have readily known. His errors resulted in frequent complaints by supervisors. Mistakes led his team members to complain about having to work with him. Mr. Abercrombie was requested by senior staff to keep an eye on Mr. Bernosky. Mr. Bernosky’s inability to remember crucial steps caused delays, lost production and safety issues. Mr. Bernosky could not explain to Mr. Abercrombie the reason for his errors other than he forgot or that he did not remember whether he did or did not do his assigned tasks.
[105] These memory issues carried over to his probationary employment at Sobey’s. The letters of Mr. Hildebrand, who was Mr. Bernosky’s supervisor, setting out Mr. Hildebrand’s concerns and his reasons for eventually terminating Mr. Bernosky’s probation are telling. Mr. Bernosky who, by that time, had been a 3rd class stationary engineer for more than 30 years, showed that he did not understand the plant controls. He was unable to complete steps that were set out in his work instructions. He marked off work instructions showing that he had completed work even though there were numerous steps that had not been completed. In his termination letter to Mr. Bernosky, Mr. Hildebrand stated that although Mr. Bernosky had been given ample time to learn the skills required for his job, he repeatedly had incidents of omissions and errors which put the company in a significant liability position.
[106] Dr. Thompson diagnosed Mr. Bernosky with, and treated Mr. Bernosky for, depression, cognitive decline and anxiety. Dr. Thompson did not rely only on Mr. Bernosky’s subjective reporting. In his letter of May 9, 2018, Dr. Thompson stated that Mr. Bernosky has “...objective evidence of cognitive decline/memory loss…” on the basis of tests that Mr. Bernosky had undergone.
[107] Dr. Thompson’s report was tendered by Mr. Bernosky. Dr. Thompson, therefore, became the witness of Mr. Bernosky. Ms. Schneidermeier had the right to require Mr. Bernosky to produce Dr. Thompson at trial for cross-examination and to require Mr. Bernosky, in the first instance, to pay the costs of Dr. Thompson’s attendance. See Andreason v. Thunder Bay (City), 2014 ONSC 710. Ms. Schneidermeier did not ask that Dr. Thompson be produced at trial. Dr. Thompson was therefore not cross-examined on his impartiality, qualifications and reliability. If Ms. Schneidermeier wanted to impugn Dr. Thompson’s opinion, other than by way of submissions, she had recourse to do so.
[108] Dr. Thompson was a treating physician. He was not retained for the purposes of this litigation to give an expert opinion. As a participant witness, he was not required to file a rule 53.03 compliant report in order to give opinion evidence. See Westerhof v. Gee Estates, 2015 ONCA 206.
[109] I am unable to accept, without more, Ms. Schneidermeier’s assertion that Dr. Thompson’s report should be given little weight because as a family physician he would want to help Mr. Bernosky.
[110] Mr. Bernosky is an alcoholic. He suffers from anxiety and depression for which he has been prescribed anti-depressant medication. One or more of these disorders may have caused or contributed to his cognitive decline/memory issues which led to the termination of his employment by Sobey’s. Mr. Bernosky was terminated by Sobey’s, not for drinking but because of his mental errors. His history of alcohol disorder goes back decades. I am not prepared to find that because Mr. Bernosky’s long standing alcohol disorder may, although not necessarily, have caused his memory loss he is therefore intentionally unemployed. If his alcohol disorder caused a medical condition that adversely affected his ability to work, I would not conclude that he was therefore intentionally unemployed.
[111] I find that when Mr. Bernosky was terminated by Sobey’s, it was not because he voluntarily chose not to work. He was terminated because, as a probationary employee, he could not do the job. He did not become “intentionally” unemployed.
[112] Regarding the submission of Ms. Schneidermeier that Mr. Bernosky was terminated because he thought that the checklists were “overkill” and that he did not feel like completing them properly, the letter from Mr. Hildebrand of September 20, 2016 does not allege insubordination or refusal to complete checklists. Rather it cites as the reasons for the termination of his probationary employment Mr. Bernosky’s inability to learn the required skills of the job and repeated incidents of omissions and errors that put the company in a significant liability position.
[113] The next question to be answered is whether Ms. Schneidermeier has, on the evidence, proved that Mr. Bernosky, after his termination by Sobey’s, has been intentionally unemployed.
[114] Mr. Bernosky produced 80 online job applications that he sent through Indeed during the approximately 20 months following his termination by Sobey’s. I accept that he also sent out other job applications during this time through Indeed by way of his cellphone, but that these job applications were deleted because this information exceeded his cellphone data plan. This evidence is supported by the January 9, 2018 letter from Indeed, responding in the negative to Mr. Bernosky’s inquiry as to whether Indeed could provide a list of the positions he had applied for that had been deleted from his cellphone.
[115] Ms. Schneidermeier is critical of the fact that Mr. Bernosky’s job search was done through Indeed. However, Mr. Bernosky had applied for 20 jobs online through Indeed, both before he was hired by Sobey’s and while he was a probationary employee at Sobey’s. Mr. Bernosky’s use of Indeed was therefore not something new after he left Sobey’s. It was the same method he had used before his termination.
[116] Mr. Bernosky’s employment history indicates that he was not someone who was in the habit of avoiding work. He began work at the Abitibi Mission Mill out of high school and worked there for more than 30 years, leaving only because the Mill closed. In 1985, he upgraded his qualifications from a high school diploma to a 3rd class stationary engineer’s ticket. Soon after the Abitibi Mission Mill closed, he took work in Chapleau for almost a year until he secured employment at the Fort Frances Mill in 2009. After he left the Fort Frances Mill in February 2013, he started work almost immediately in March 2013 with Weyerhaeuser in Kenora. When he was unable to remain at Weyerhaeuser in October 2013 because he could not obtain his 2nd class stationary engineer certificate, he took work in November 2013 at Force Rentals Ltd. In Manitoba. When that employment ended in March 2014, he took a position with Discovery Safety Services in April 2014. When he left there, he started immediately with Weyerhaeuser for the month of August 2014. When a 2nd class stationary engineer replaced him at the end of August 2014, he started work that same month with Sierra Construction in Kenora until April 2015. When that employment ended, there was a gap of seven months before he went back to Force Rentals in Manitoba until February 21, 2016. He started his probationary employment with Sobey’s on March 11, 2016. The evidence indicates that during the 40 years from when Mr. Bernosky started at the Abitibi Mission Mill at age 17 in 1976, until his termination from Sobey’s in September 2016, Mr. Bernosky was almost continuously employed with the exception of the seven month gap from April 2015 to November 2015 when he was between jobs at Sierra Construction in Kenora and Force Rentals in Virden, Manitoba. He is 59 years of age with a particular set of skills and experience.
[117] I am not satisfied on the balance of probabilities that the steps taken by Mr. Bernosky to find a job after the termination of his employment by Sobey’s were unreasonable. There were 80 job applications, plus an indeterminate number made on his cellphone. Could Mr. Bernosky have made more applications? The answer is “yes”. Were the number of applications that he did make unreasonably low so as to amount to intentional unemployment? The answer is “no”. The job applications were made in the same manner that Mr. Bernosky had made before his termination. He received only one expression of interest. He sought out Service Canada to assist him with his resumé. He did not warn off prospective employers by telling them of the memory issues that had been present since his time at the Fort Frances Mill and that led to his termination at Sobey’s.
[118] I accept that Mr. Bernosky, in the heat of argument with Ms. Schneidermeier after separation, said words to the effect that he was sick of working, that he might go on disability and that he did not believe that he should have to pay support. However, Mr. Bernosky applied for more than 80 jobs after these words were spoken.
[119] It is of no consequence that Mr. Bernosky searched for work more aggressively in December 2017 to enable him to pay his bills, rather than for the purpose of being able to pay support. If he had been successful in obtaining work to pay his bills, there would be no issue that he would also have to pay support, whether he wanted to or not. The issue is not his motivation for seeking employment. Rather, what is important is whether he did in fact seek employment.
Conclusion
[120] I find that Ms. Schneidermeier has not satisfied the onus on her to prove, on a balance of probabilities, that Mr. Bernosky is intentionally unemployed within the meaning of s. 19(1)(a) of the Guidelines and the ratio in Drygala.
[121] Having determined that Ms. Schneidermeier has not proven that Mr. Bernosky is intentionally unemployed, it is not necessary to consider the second and third questions set out in Drygala, namely, whether the intentional unemployment is required by reason of Mr. Bernosky’s reasonable medical needs and, if not, what amount of income should be imputed.
[122] Because I have not found that Mr. Bernosky is intentionally unemployed, I do not impute income to him beyond the $821.00 per month that he is withdrawing from his RRIF. That income is too low to warrant a spousal support order.
[123] As noted above, there is no issue with Ms. Schneidermeier’s entitlement to support. She has great need. I do not impute any income to her. For the purposes of determining spousal support, she is not required to draw on the limited capital of her LIRA. However, Mr. Bernosky does not presently have the ability to pay support. The application for spousal support is therefore dismissed, but without prejudice to Ms. Schneidermeier’s right to bring a claim for support if there is a material change in the circumstances of Mr. Bernosky. Mr. Bernosky shall continue to make reasonable efforts to obtain employment and shall provide Ms. Schneidermeier by September 1, 2019 with evidence of his job applications during the previous 12 months. Mr. Bernosky shall forthwith notify Ms. Schneidermeier, in writing, of any employment that he obtains, including details of the name and address of any employer and the terms of employment. By June 1 of each year, commencing June 1, 2019, he shall provide Ms. Schneidermeier with a copy of his income tax return and a copy of his Notice of Assessment for the previous calendar year.
Costs
[124] If the parties are unable to agree on costs, Mr. Bernosky shall deliver written submissions, not exceeding five pages, exclusive of his Bills of Costs, within 20 days.
[125] Ms. Schneidermeier shall deliver written submissions, not exceeding five pages, exclusive of any Bill of Costs she may wish to file for comparison purposes, within 20 days of service of Mr. Bernosky’s submissions.
[126] I would expect that in considering costs, Mr. Bernosky will be mindful of Ms. Schneidermeier’s limited financial circumstances, a position which she is in through no fault of her own.
[127] If costs submissions are not received from Mr. Bernosky within 20 days, the issue of costs shall be deemed to have been resolved.
“original signed by”
The Honourable Justice D. C. Shaw
Released: September 11, 2018
COURT FILE NO.: FS-17-0100-00
DATE: 2018-09-11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
B E T W E E N:
Karen Schneidermeier
Applicant
- and -
Gary Bernosky
Respondent
REASONS FOR JUDGMENT
Shaw J.
Released: September 11, 2018
/sab