Mary Lou Marco v. Francisco Isaisas Gomes
COURT FILE NO.: FS-18-244 DATE: 2018 10 09
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
MARY LOU MARCO (formerly Gomes) Applicant (Not present)
- and -
FRANCISCO ISAISAS GOMES Respondent (Appearing in Person)
HEARD: September 18, 24 and October 1, 2018
ENDORSEMENT Lemon, J.
The Issue
[1] This is a proceeding under the Interjurisdictional Support Orders Act, 2002, S.O. 2002, c.13. Any order that I make here must still be confirmed by a court in the Commonwealth of Massachusetts in the United States of America.
[2] Mr. Gomes has brought a motion to terminate his outstanding spousal support order. In his Notice of Motion, he seeks to change an order dated December 10, 2010.
[3] Mr. Gomes first appeared before me on September 18, 2018. Because he is unrepresented, the materials that he had filed were insufficient and I gave him a list of materials that he needed to provide in order to proceed with his motion.
[4] He next appeared before me on September 24, 2018. At that attendance, his materials indicated that the order that should be changed is dated September 17, 2012.
[5] Pursuant to this court’s Family Law Rules, O. Reg. 114/99, s. 2(3), I should deal with cases “justly.” Dealing with a case justly is defined as ensuring that the procedure is fair to all parties; saves expense and time; deals with cases in ways that are appropriate to their importance and complexity and giving appropriate court resources to the case while taking account of the need to give resources to other cases.
[6] On the basis of that rule, it makes no sense to dismiss the application on a technicality that Mr. Gomes referred to the wrong order. That would have the effect of having the proceeding start over in order to simply adjust the date of the order in issue. Ms. Marco will not be prejudiced in responding to the application with respect to the correct order of September 17, 2012. I therefore treated the motion as a motion to change the 2012 order.
[7] Pursuant to the 2012 order, Mr. Gomes is paying $125.00 per week. Mr. Gomes seeks to change that order such that spousal support is ended effective June 25, 2018. He asks that his arrears be fixed at $5,000.00 as of June 25, 2018. He asks to pay those arrears at the rate of $200.00 per month.
Background
[8] From the materials filed and from what Mr. Gomes testified to in court, I can glean the following.
[9] The parties were married April 3, 1986, and separated in 2007. There were no children of the marriage.
[10] In May 2010, on consent, Mr. Gomes was ordered to pay $350.00 per week in spousal support.
[11] That order was varied on September 17, 2012. It modified the 2010 order to $163.00 per week effective May 12, 2010, and $125.00 per week effective March 30, 2011. The 2012 order sets out that:
The original action before the court was a complaint for separate support. Unless there has been a divorce elsewhere, the parties are still married. [The Husband] failed to participate in the initial proceedings and was working as a mason at the time the temporary order was entered. Thus the court was justified in entering the initial temporary order and it remains intact until the entry of the judgment.
The judgment entered in 2010 is modified retroactively to reflect an approximate award of 30 percent of the difference between the wife’s earnings and the husband’s imputed income of $50,000 as a mason.
The judgment is further modified back to the date of filing of the complaint for modification to reflect the difference between the husband’s historical earnings and the wife’s current earnings.
[12] The order has not been assigned to any provincial agency.
[13] The parties were divorced on February 5, 2010. It appears that there were no orders for support at that time.
[14] The record discloses that the motion to change and supporting documents were forwarded to Ms. Marco on August 21, 2018, by a representative of the Ministry of the Attorney General.
[15] Mr. Gomes has difficulty with the English language. He was assisted by a friend and the transcript will indicate that I provided as much assistance as I could.
[16] To that end, I requested that Mr. Gomes set out in his own words his position in a separate affidavit. There, he said:
I do not wish to pay Spousal Support any longer. For the reasons being I have been separated from my ex-wife Mary Lou Gome’s (Marco’s) 10 years. There is no children involved from time of separation. I cannot afford to pay this monthly amount. All my taxes go to Mary Lou Gomes (Marco’s). I only work part time. My friend helps me pay monthly, if not I would not be able to pay rent or eat. Mary Lou is a cleaner at the hospital in Massachusetts. She makes good money. A lot more than me. So I feel she can support herself. I am willing to pay arrears in full.
Financial Circumstances
[17] I have very little information, of course, from Ms. Marco. I have a financial statement (Short Form) apparently filed with the Trial Court, Probate and Family Court Department, of the Commonwealth of Massachusetts. That document indicates that Ms. Marco earned $29,086.68 in 2014 and was on track to make approximately $28,000.00 in 2015.
[18] Much of the other information from Mr. Gomes about Ms. Marco appears to be hearsay. I do not fault Mr. Gomes for that but I must be cautious of what I rely upon for my determinations at this stage of the proceedings.
[19] The financial information provided by Mr. Gomes indicates that in 2007, he made approximately $30,000.00, as shown from his paystub dated December 8, 2007. His income tax returns reflect that he made $16,000.00 in 2014; $10,500.00 in 2015; $11,500.00 in 2016; $13,000.00 in 2017 and it appears that he is on track to make $10,900.00 in 2018. He is presently employed by Cruz Masonry on a part-time basis.
Authorities
[20] Pursuant to s. 37 of the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”), the court may vary an order for spousal support. The test to vary spousal support under s. 37(2) requires a material change in the dependant’s or payor’s circumstances.
[21] A material change in circumstances is one that, if known at the time the original order was granted, would likely have resulted in different terms. The change cannot be relied on if it was known at the time of the original order. The court must first consider if a material change of circumstances has occurred, and then determine what variation should be ordered: Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, at paras. 20-21, 26.
[22] The variation order should consider the purposes of spousal support listed in s. 33(8) of the FLA, namely, recognizing any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown; sharing the economic burden of child support equitably; making fair provision to assist the spouse to become able to contribute to his or her own support; and relieving financial hardship, if this has not been done under other orders for family property and the matrimonial home. See Hickey v. Hickey, [1999] 2 S.C.R. 528, at paras. 22-24.
Analysis
[23] Both parties are 59 years of age. They were married for 21 years and have been separated for 11 years.
[24] In Ontario, that lengthy marriage would normally indicate a lengthy term for support. Certainly, it is possible, but would be unusual, for spousal support to end after only 11 years.
[25] In 2012, Mr. Gomes was imputed to have $50,000.00 in income. Clearly, there has been a material change from that situation to his present income of approximately $10,900.00. Given that material change of circumstances, it is open to this court to vary the order. None of the principles outlined in s. 33(8) of the FLA merit a different conclusion.
[26] At least in 2015, Ms. Marco appears to be making almost three times the annual income of Mr. Gomes. In those circumstances, pursuant to the Ontario Spousal Support Advisory Guidelines (Ottawa: Department of Justice Canada, 2008), Mr. Gomes would not be required to pay spousal support. On the materials filed, Mr. Gomes has little ability to pay spousal support to Ms. Marco.
[27] Accordingly, I am satisfied that the spousal support should come to an end as of June 25, 2018.
Arrears
[28] The materials filed indicate that Mr. Gomes’ arrears with the Family Responsibility Office as of April 11, 2018, were $6,573.51. I do not know the present balance; however, in all of the circumstances, I am satisfied that arrears should be fixed at the rate of $5,000.00 payable at the rate of $200.00 per month.
Result
[29] Accordingly, the order of the Trial Court, Probate and Family Court Department, of the Commonwealth of Massachusetts, dated September 17, 2012, is provisionally varied and Mr. Gomes’ spousal support obligation is terminated as of June 25, 2018. His arrears are fixed at $5,000.00 as of June 25, 2018, payable at the rate of $200.00 per month.
Lemon, J.
Released: October 9, 2018
COURT FILE NO.: FS-18-244 DATE: 2018 10 09
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
MARY LOU MARCO (formerly Gomes) Applicant
- and –
FRANCISCO ISAIAS GOMES Respondent
ENDORSEMENT Lemon, J.
Released: October 9, 2018