Court File and Parties
COURT FILE NO.: FS-18-00000-124 DATE: 2018 11 02
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Katrin Thode, Applicant AND: Joern-Uwe Thode, Respondent
BEFORE: Bloom, J.
COUNSEL: Andrew Feldstein, for the Applicant, Moving Party Ronald Sleightholm, for the Respondent, Responding Party
HEARD: October 25, 2018
E N D O R S E M E N T
I. INTRODUCTION
[1] The Moving Party brings the motion at bar for the following relief: (1) an order that she be permitted to bring the motion before a case conference is held, on the basis of urgency; (2) an order for interim spousal support binding on the estate of the Respondent in the amount of $547.00 per month; (3) an order that the estate be named as the irrevocable beneficiary of two policies of life insurance; (4) an order that the Respondent name his estate as the beneficiary of an RSP or that the estate give 60 days written notice to the Moving Party before RSP funds are transferred to his current wife; and (5) an order for non-depletion of the Applicant’s equalization claim.
II. THE EVIDENCE
[2] The parties were married for 28 years, from June 1986 to February 2015; their marriage terminated with an uncontested divorce on February 22, 2015. They had no children.
[3] According to the evidence adduced by the Respondent the parties separated in June of 2013 when the Applicant was 48. According to the evidence adduced by the Applicant the separation occurred in 2014 when she was 49. She is now 52 and the Respondent is almost 58.
[4] The Applicant worked during the marriage as a motor coach operator. According to the evidence adduced by her, she also performed the role of a homemaker and left the Respondent to arrange the parties’ finances.
[5] According to the evidence adduced by the Applicant, she is currently retired, living in Costa Rica, and incapable by her own resources of achieving any approximation of the accustomed standard of living which was maintained while the parties were married.
[6] The Applicant retained a lawyer for the purposes of the divorce of the parties. No provision was made at the time of the divorce for spousal support of the Applicant or equalization. The Respondent in his affidavit of October 1, 2018 stated that the Applicant never asked for spousal support prior to the current proceeding, and he never agreed that he would pay her spousal support.
[7] The Applicant adduced evidence that she had no knowledge of her potential entitlement to equalization and spousal support prior to December of 2017; that after separation the Applicant made several oral requests to the Respondent for financial support; that the Respondent agreed that he would pay her $4000 per month in that regard; and that he never did so.
[8] The Respondent is terminally ill with cancer. He was married to Milena Thode on July 14, 2016; they continue to be married and reside together.
[9] The Respondent presently receives $1,250.00 per week in short term disability benefits, being $65,000.00 annually. He has RRSP accounts through Sterling Mutual, valued at $377,997.98. Milena Thode is the beneficiary of his group life insurance policy with Hela Spice with a benefit of $70,000, and of his Foresters’ policy with a benefit of $200,000.
[10] Proceeds from the sale of the former matrimonial home of the parties are held in trust, and will soon likely total $139,453.13, with entitlement equally to the parties.
[11] The Applicant admits an imputed income of $50,000 annually for purposes of this motion.
[12] The Application was issued on May 14, 2018, and the motion at bar was in substance brought in September of this year.
III. GOVERNING PRINCIPLES
[13] The relevant provisions of the Divorce Act are:
s.15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.
(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1).
(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.
(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.
(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[14] The relevant provisions of the Family Law Act are:
s.2(8) The court may, on motion, extend a time prescribed by this Act if it is satisfied that,
(a) there are apparent grounds for relief;
(b) relief is unavailable because of delay that has been incurred in good faith; and
(c) no person will suffer substantial prejudice by reason of the delay. R.S.O. 1990, c. F.3, s. 2 (8) .
s.5 (1) When a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them. R.S.O. 1990, c. F.3, s. 5 (1) .
(2) When a spouse dies, if the net family property of the deceased spouse exceeds the net family property of the surviving spouse, the surviving spouse is entitled to one-half the difference between them. R.S.O. 1990, c. F.3, s. 5 (2) .
(3) When spouses are cohabiting, if there is a serious danger that one spouse may improvidently deplete his or her net family property, the other spouse may on an application under section 7 have the difference between the net family properties divided as if the spouses were separated and there were no reasonable prospect that they would resume cohabitation. R.S.O. 1990, c. F.3, s. 5 (3) .
(4) After the court has made an order for division based on subsection (3), neither spouse may make a further application under section 7 in respect of their marriage. R.S.O. 1990, c. F.3, s. 5 (4) .
(5) Subsection (4) applies even though the spouses continue to cohabit, unless a domestic contract between the spouses provides otherwise. R.S.O. 1990, c. F.3, s. 5 (5) .
(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,
(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;
(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;
(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;
(d) a spouse’s intentional or reckless depletion of his or her net family property;
(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;
(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;
(g) a written agreement between the spouses that is not a domestic contract; or
(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property. R.S.O. 1990, c. F.3, s. 5 (6) .
(7) The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6). R.S.O. 1990, c. F.3, s. 5 (7) .
s.7 (1) The court may, on the application of a spouse, former spouse or deceased spouse’s personal representative, determine any matter respecting the spouses’ entitlement under section 5. R.S.O. 1990, c. F.3, s. 7 (1) .
(2) Entitlement under subsections 5 (1) , (2) and (3) is personal as between the spouses but,
(a) an application based on subsection 5 (1) or (3) and commenced before a spouse’s death may be continued by or against the deceased spouse’s estate; and
(b) an application based on subsection 5 (2) may be made by or against a deceased spouse’s estate. R.S.O. 1990, c. F.3, s. 7 (2) .
(3) An application based on subsection 5 (1) or (2) shall not be brought after the earliest of,
(a) two years after the day the marriage is terminated by divorce or judgment of nullity;
(b) six years after the day the spouses separate and there is no reasonable prospect that they will resume cohabitation;
(c) six months after the first spouse’s death. R.S.O. 1990, c. F.3, s. 7 (3) .
s.9 (1) In an application under section 7, the court may order,
(a) that one spouse pay to the other spouse the amount to which the court finds that spouse to be entitled under this Part;
(b) that security, including a charge on property, be given for the performance of an obligation imposed by the order;
(c) that, if necessary to avoid hardship, an amount referred to in clause (a) be paid in instalments during a period not exceeding ten years or that payment of all or part of the amount be delayed for a period not exceeding ten years; and
(d) that, if appropriate to satisfy an obligation imposed by the order,
(i) property be transferred to or in trust for or vested in a spouse, whether absolutely, for life or for a term of years, or
(ii) any property be partitioned or sold. R.S.O. 1990, c. F.3, s. 9 (1) ; 2009, c. 11, s. 25 .
(2) The court may, at the time of making an order for instalment or delayed payments or on motion at a later time, order that the spouse who has the obligation to make payments shall,
(a) furnish the other spouse with specified financial information, which may include periodic financial statements; and
(b) permit inspections of specified property of the spouse by or on behalf of the other spouse, as the court directs. R.S.O. 1990, c. F.3, s. 9 (2) .
(3) If the court is satisfied that there has been a material change in the circumstances of the spouse who has the obligation to make instalment or delayed payments, the court may, on motion, vary the order, but shall not vary the amount to which the court found the spouse to be entitled under this Part. R.S.O. 1990, c. F.3, s. 9 (3) .
(4) Subsections (3) and 2 (8) (extension of times) do not permit the postponement of payment beyond the ten-year period mentioned in clause (1) (c). R.S.O. 1990, c. F.3, s. 9 (4) .
[15] Delay does not bar a claim for spousal support, provided that there is reason for the delay (see Walker v. Greer, 2003 CarswellOnt 3223 (Ont. Sup. Ct.) at para. 35).
[16] In Poirier v. Poirier, 2010 ONSC 920 at para. 55 Justice Price discussed the principles governing applications for interim spousal support:
55 In the recent case of Driscoll v. Driscoll 5 , Lemon J. cited with approval the British Columbia case of Robles v. Kuhn 6 for the helpful list of principles it set out governing interim support motions. These principles can conveniently be grouped as follows:
Onus and Burden of Proof: a) Applications for interim support motions are summary in nature. The court will generally not conduct a detailed investigation into the merits of a case, in large part because at the stage of a motion for interim support, there is not sufficient evidence to enable the court to do so. b) A claimant need only establish a prima facie case for relief. 7 c) Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support.
Criteria for Entitlement: a) The court on an application for interim support should not unduly emphasize any one of the statutory considerations above others; b) That being said, the applicant's needs and the respondent's ability to pay often assume greater significance and the respondent's need to achieve self-sufficiency often assumes less significance on applications for interim support than they do at trial.
Appropriate Amount of Support: a) An interim support order should be sufficient to allow a dependant spouse money to maintain a reasonable lifestyle pending trial. b) Interim support should allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor's ability to pay warrants it. c) Interim support should be within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise.
IV. APPLICATION OF PRINCIPLES TO CASE AT BAR
[17] In the case at bar the Applicant will be seeking in a final order prospective spousal support, retroactive spousal support, and equalization. To secure the payment of those sums she seeks the orders I have earlier noted, apart from the interim support order of $547.00 per month made payable against the Respondent and his estate.
[18] She justifies the delay in making her claims on her lack of knowledge of her rights and the unfulfilled promises of the Respondent.
[19] She justifies the security sought, as well as the interim order binding the estate, based on the terminal illness of the Respondent, the priority her support has over that of the Respondent’s current wife, and the quantum and legitimacy of her claims.
[20] The Applicant emphasizes the illness of the Respondent in her argument that the motion is justified before a case conference.
[21] The Respondent argues that the delay in making the claims undermines their legitimacy; that the interim order of $547.00 per month is not large enough to justify security for it; and that the Applicant and the Respondent’s current wife should make competing claims under the Succession Law Reform Act rather than their financial claims being litigated in this proceeding.
[22] I look to the principles I have set out above and the evidence in making my analysis.
[23] In my view, the Applicant’s illness creates an urgency that justifies the hearing of this motion before a case conference.
[24] The Applicant is entitled to interim spousal support of $547.00 per month, a sum in accordance with the Spousal Support Advisory Guidelines; I base my calculation on the Applicant’s imputed annual income of $55,000 and the Respondent’s annual income of $65,000. I make the order binding on the Respondent and the estate of the Respondent, in light of his illness. The payments are to be made on the 15th of every month, commencing November 15, 2018.
[25] I decline to make the other orders sought by the Applicant. The delay in bringing her claim for spousal support, and the question of the limitation period in respect of the equalization claim are factors which make her claim of uncertain strength. There is enough evidence to justify the interim order for spousal support I have made, but not the additional security terms sought.
[26] I also rely in coming to that conclusion on further terms which I include in my order. The interim order for spousal support is reviewable in 4 months from the release of these reasons, on the motion of either party to a judge of this court. This motion is to be on notice also to Milena Thode, the Respondent’s current wife. These terms will provide a mechanism to take into account the changes which are foreseeable in the Respondent’s health, and the rights of Milena Thode, including any rights she has as regards the two insurance policies.
V. COSTS
[27] I will receive written submissions as to costs. The Applicant is to serve and file her submissions within 14 days of release of this endorsement; the Respondent is to serve and file his submissions within 14 days from service of the Applicant’s submissions. There shall be no reply.
Bloom, J.