COURT FILE NO.: FS-17-0088
DATE: 2018-01-31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
D.M.
S. Filipovic, for the Applicant
Applicant
- and -
G.M.
M. A. Currie, for the Respondent
Respondent
HEARD: December 21, 2017, at Thunder Bay, Ontario
Mr. Justice W.D. Newton
Decision On Motion
Overview
[1] On this motion the wife[^1] seeks an order for temporary spousal support and an order that the sale proceeds from the matrimonial home, currently held in trust by the real estate lawyer, be released to her as an advance of monies towards equalization.
[2] The husband argues that no support should be payable as the wife was self-supporting during marriage, self-supporting post-separation and can continue to be self-supporting. The husband argues that there is no need for support because the wife has had access to over $300,000.00 in cash over the last several years. Although acknowledging that she is entitled to the sale proceeds as equalization, the husband argues that terms should be placed upon the release of that money so that the money is not dissipated.
The Facts
[3] The parties were married for 24 years. They separated in May 2012. They have three adult children. The husband runs a local business. He has a holding company which owns his business premises. The wife worked in various nursing jobs. At times, her income exceeded her husband’s income.
[4] The wife deposes that she has some significant health issues including alcoholism. The health issues are not denied by the husband. In fact, he relies upon her alcoholism as one of the arguments against advancing her the sale proceeds from the matrimonial home. She claims that her medical expenses exceed $650.00 per month. She is currently not employed and has no medical coverage. It is acknowledged that she needs specialized addiction treatment such as the program offered through the Homewood Institute.
[5] The matrimonial home was sold in November 2014. The sale proceeds of $213,100.86 have been held in trust by the real estate lawyer since then. Even though the husband acknowledges that the wife is entitled to an equalization payment at least in that amount (his half interest), there has not been any agreement to release those funds or her own half interest to her. The husband states this in his affidavit: “However, given the issues concerning the disbursement of significant funds by the applicant over the last two years, I am not prepared to agree to release the funds to her as advance on equalization.”
[6] The wife worked as a nurse practitioner but could not “manage” due to her health and addiction issues. She went off on short-term disability from May 2014 to the end of 2014. Those benefits ended and she requested spousal support but support was not provided. She obtained employment for three months as an occupational health nurse but her health and addiction issues deteriorated. In June 2015, she applied to terminate her pension and transfer the monies into a LIRA and RRSP to allow her some income. Significant tax obligations were triggered She was able to secure employment again as a nurse practitioner for approximately eight months ending in April 2016. As a result of an impaired driving conviction she had to give up her licence with the College of Nursing. Subsequently, she received employment insurance sick benefits but those benefits ended in 2016. She has even attempted to apply for jobs as a sales clerk but has not been successful.
Positions of the Parties
[7] The wife claims that she is entitled to spousal support based on her contributions to the marriage and seeks mid to high range spousal support ($3345.00 – $3823.00 monthly) based on the husband’s employment income of $95,000.00 annually. Because of the wife’s significant health issues which require significant monthly expenses, the wife seeks either high-range spousal support or mid-range, plus an additional amount to address those expenses. She also asked that an order be made for immediate payment to her of the matrimonial home sale proceeds. She notes that she has been deprived of the benefit of these funds for over three years and, as a consequence, had to cash in her pension and incur significant tax liability.
[8] The husband claims that the wife is not entitled to support because this was not “a traditional marriage” and that the wife is capable of supporting herself as evidenced by her post-separation employment. Although he acknowledges that it is “paternalistic”, he argues that terms should be placed on her access to the sale proceeds for her own good because he argues that it appears that she has dissipated significant cash in the last two years. He argues that the net sale proceeds can be released to the wife’s counsel and that amounts can be released for payment of legal fees and for treatment, such as the Homewood Program, and that small amounts should be “doled” out to her from which she could support herself.
The Law
[9] The Divorce Act, R.S.C. 1985, c. 3 (2nd supp.) provides as follows:
Spousal Support Order
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.
Interim order
(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).
Terms and conditions
(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.
Factors
(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.
Spousal misconduct
(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.
Objectives of spousal support order
(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.
[10] As Gauthier J. stated in Durocher v. Treitz, [2009] O.J. No. 856:
[24] As a general rule, a court does not conduct an in-depth analysis of the issue of entitlement, on a motion for a temporary order. ”Interim support” orders are meant to provide a reasonably acceptable solution to a spouse’s financial challenges, until trial.
[25] If a claimant establishes a prima facie case for spousal support entitlement, then, generally a support order will be made, based on the parties’ respective needs and means. Plaxton v. Plaxton (2002), 2002 CanLII 49545 (ON SC), 27 R.F.L. (5th) 135.
Advances on Equalization
[11] In Zagdanski v. Zagdanski (2001), 2001 CanLII 27981 (ON SC), 55 O.R. (3d) 6, Lane J. set out four factors upon which an order for the advance of monies towards an equalization payment ought to be made (at para. 39). These factors are:
There is little or no realistic chance that the amount of the contemplated advance will exceed the ultimate equalization amount;
There will, therefore, be some considerable degree of certainty about the right to, and likely minimum amount of, an equalization payment;
There will be need, not necessarily in the sense of poverty, but a reasonable requirement for funds in advance of the final resolution of the equalization issue, including funds to enable the continued prosecution or defence of the action;
There may be other circumstances such that fairness requires some relief for the applicant; frequently, but not necessarily, there will have been delay in the action, deliberate or otherwise, prejudicing the applicant by, for example, running up the cost.
Analysis and Disposition
[12] For the purposes of this temporary motion, I am prepared to conclude that, pre-separation, the husband and wife functioned together as an economic unit, each benefiting from the contributions made by the other. Therefore, I am satisfied that a prima facie case for entitlement has been made out.
[13] Before dealing with the spousal support issue I will address the proceeds of the matrimonial home. The husband concedes that his argument is “paternalistic” but argues that it is grounded in genuine concern for his wife’s well-being. In my opinion, this behaviour goes beyond “paternalistic” and borders on or is unconscionable. By denying her access to funds which are admitted to be owed to her, the husband has held the wife an economic hostage for three years. As a result, she has incurred significant tax liability. This behaviour will not have improved her mental health or her addiction.
[14] It would be advantageous, on a number of fronts, if the wife utilizes these funds to seek the treatment that has been recommended.
[15] With respect to spousal support, the release of the sale proceeds will address, in part, the ongoing medical costs. Accordingly, I direct that, on a temporary basis, the husband pay to the wife mid-range spousal support in the amount of $3345.00 monthly, based on his annual income of $95,000.00, pending further order of this court.
[16] The husband has agreed to maintain life insurance coverage with Manulife in the amount of $350,000.00 to secure spousal support on a temporary basis. Given the orders I have already made I decline to make an order naming the wife beneficiary of the husband’s pension and related benefit plans.
Costs
[17] The wife shall file her costs submissions limited to three pages plus costs outline, plus any supporting material, within 20 days date of this decision. Thereafter, the husband shall have 10 days to respond subject to the same limitations. If necessary, the wife may deliver a reply within 10 days. If costs submissions are not received within 20 days then costs will be deemed settled.
“Original signed by”____
The Hon. Mr. Justice W.D. Newton
Released: January 31, 2018
COURT FILE NO.: FS-17-0088
DATE: 2018-01-31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
D.M.
Applicant
- and -
G.M.
Respondent
DECISION ON MOTION
Newton J.
Released: January 31, 2018
/sab
[^1]: In this decision I will use generic descriptors to the extent possible so that the privacy of the parties, their children and their families is respected.