Ellen Maria Colautti v. Christopher Charles Eggett

Court File and Parties

COURT FILE NO.: FS-08-6813 DATE: 2019/04/03

ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT

BETWEEN:

ELLEN MARIA COLAUTTI Applicant

AND:

CHRISTOPHER CHARLES EGGETT Respondent

COUNSEL: Ian R. Fisher and J. Patterson, for the Applicant Michael D. Frank, for the Respondent

HEARD: March 26, 27, 2019

BEFORE: GORMAN J.

OVERVIEW

[1] The Applicant brings a motion to change the divorce order of Mr. Justice Campbell, dated July 29, 2010. Specifically, the Applicant seeks an increase in spousal support to $1327.00 per month for a period of nine years.

[2] The Respondent opposes this motion, and asks that spousal support be terminated effective March 31, 2019.

THE EVIDENCE

Ellen Maria Colautti

[3] Ms. Colautti testified that she was born December 7, 1962. She obtained a three year Bachelor of Arts degree in Sociology from the University of Windsor.

[4] In 1984 she applied and was accepted to Teacher’s College. She attended for one month before quitting. She testified that she was told that her undergraduate degree did not form the basis of a “teachable” subject and accordingly would be required to teach (only) primary or junior school. She was further advised that in these grades there would be a requirement to produce “crafts”, which she was not inclined to do. As well, she was advised that if she was not bilingual, she would likely have to relocate from Windsor.

[5] Knowing the foregoing Ms. Colautti once again applied to teachers College in 1985. She attended for one month before quitting. The reason that she left she said, was the same reason she left in 1984.

[6] She married the Respondent on May 20, 1989. At that time the Respondent was in law school and she was a teller at a Canada Trust Bank.

[7] Curiously, once again in 1989, Ms. Colautti again applied to teachers College and was accepted. Once again, she remained only one month before quitting. Again, the reason she testified that she quit Teacher’s College was for the very same reasons that she had quit in 1985 and 1984.

[8] When Ms. Colautti married the Respondent he had one year left in law school. He graduated and ultimately articled. Following that, he attended the bar admission course in London. The Applicant remained at Canada Trust during that time. On cross-examination she agreed that becoming a teacher would have been much more financially lucrative than remaining at the bank.

[9] Following his articling the Respondent obtained a position at a law firm in Amherstburg, Ontario. The Applicant testified that the Respondent remained at the law firm for approximately four years but ultimately quit the practice of law because he did not enjoy it. He followed that profession and became a mould maker. He worked at Reko Tools.

[10] Ms. Colautti worked at the bank full-time between 1987 and 1993.

[11] The Applicant continued working as a teller at Canada Trust until the birth of their daughter Jennifer, December 15, 1993. The Applicant took six months maternity leave and then returned to the bank part-time. She worked part-time at the bank between 1994 and 1996.

[12] The rationale for returning to the bank on a part-time basis was discussed with the Respondent. They both agreed that they did not want a stranger babysitting their daughter. The Applicant’s mother agreed to look after her granddaughter while the Applicant worked.

[13] A son was born August 4, 1996. Once again, the Applicant took maternity leave; she thought that by that time the available leave was for a period of one year. Following her maternity leave she did not return to work because her mother could no longer care for two children even if the Applicant only worked on a part-time basis.

[14] The Applicant testified that she remained off work for a period of four or four and a half years and then returned to Canada Trust between 2000 and 2001 on a part-time basis. Because she was a long-standing employee she was able to obtain between 25 and 30 hours a week of work. She said that there were no longer any full-time positions available at the bank.

[15] On cross-examination Mr. Frank showed the Applicant a resume. She identified it as her resume, and indicated that she believed that she had prepared it. In the resume it indicated that between the years of 1995 and 1997 she worked at the bank. It also indicated that she returned to the bank in 1999 and remained with the bank until 2006. When asked to explain the discrepancy between her resume and her testimony that she remained off work following maternity leave for a period of four or four and a half years, she testified, “I’m not sure why it says this”, and indicated that the resume was not correct.

[16] Once again, in either 2000 or 2001 Ms. Colautti applied to Teacher’s College. Again, she was accepted. For whatever reason, on this occasion she chose not to attend.

[17] The Applicant testified that the Respondent continued to work at Reko until he was laid off in 2005. He then obtained a job with Cintas.

[18] On cross-examination, Ms. Colautti agreed that she worked part-time at the bank between 2001 and 2010. She ultimately agreed with Mr. Frank that she consistently worked 30 hours a week during that period.

[19] The couple separated in May 2008.

[20] The two children lived with the Applicant until October 2008 when she says the Respondent surreptitiously took them into his home. The children were 15 years and 12 years old at the time, and resided, continually, with the Respondent.

[21] Following the separation the Applicant continued working on a part-time basis at the bank. She thought she worked about 30 hours a week.

[22] Pursuant to the July 29, 2010 divorce order the Applicant was required to pay the Respondent $373.00 a month in child support. The Respondent was required to pay her $375.00 in spousal support.

[23] In 2010 while still working part time at the bank the Applicant started an online course for medical office assisting. On cross-examination Ms. Colautti testified that she never applied for any other positions at the bank and indeed never even considered it. She testified that she did what was required of her at the bank to be a teller.

[24] She finished the on-line program and acquired a diploma in August 2012. Having obtained the diploma she immediately obtained a job in this field with Dr. Peter Farago. She continued at the bank on a part-time basis working weekends for about one year.

[25] She worked for Dr. Peter Farago for about one year. It was her goal to obtain a job at the newly amalgamated Windsor Hospital. A temporary job became available there and she applied for it and received it. Her goal was to be able to work at the hospital full-time. During this time she continued to work at the bank on weekends.

[26] In June 2014 the Applicant was forced to go on a medical leave from the hospital and also from the bank owing to a diagnosis of breast cancer which required surgery. When she returned from her medical leave, she continued at the bank on limited hours as ordered by her surgeons and then progressed up to 30 hours a week. She never returned to the hospital.

[27] She obtained a full-time position at a cardiac clinic in 2015 called Nova Med Diagnostics. She worked there full time as a secretary and receptionist for approximately two years until 2017 when she obtained a position with a specialist, Dr. Linda Tietze. She worked with Doctor Tietze for six or seven months until she received her current position as a full-time receptionist and secretary with Dr. Cheng.

[28] Her daughter, Jennifer completed her degree at the University of Windsor in 2016. She continued to live with the Respondent until 2017. Her son finished school in April 2018 and she continued to pay child support for both children until June 2018, when child support was terminated.

[29] The Respondent has continued to pay spousal support in the amount of $375.00 per month.

[30] In 2015 the Applicant made $34,999.00. In 2016, including spousal support the Applicant made $42,254.00. In 2017, also including spousal support the Applicant made $37,290.00. In 2018, her T4 illustrates that she has made $35,049.00. Her T4A for 2018 reveals pension income from TD Canada Trust in the amount of $885.84, for a total income excluding spousal support of $35,935.35.

[31] Since December 2018 she has resided with her son in a rental apartment. The rent for the apartment is $1550.00 per month. Her son, who now lives with her, has an outstanding student loan. Although he works full time, he does not pay her rent.

[32] The Applicant listed her townhome in February 2019. It sold, and closed on March 25, 2019. Between December 2018 (when she moved into the rental home) and March 25, 2019 she maintained the costs of both the townhouse and the apartment.

[33] She testified that she expects to receive approximately $75,000.00 from the sale of the home.

Christopher Eggett

[34] Mr. Eggett agreed with the chronology as outlined by Ms. Colautti. He testified that upon completing law school he articled in Windsor Ontario perhaps earning between $20,000.00 and $25,000.00 a year. He took the bar admission course in London Ontario between September and December 1991, and was called to the bar in February 1992.

[35] He then proceeded to work as an employee of a law firm earning between $30,000.00 and $35,000 a year. He continued in this fashion for a period of two years. He was then hired on by the same firm as an associate. He shared space and paid for his expenses. He testified that the first year was very difficult. He had a high overhead and virtually no clients. Ultimately in the fall of 1996 he wound up his practice. He testified that he did so because the law kept him out of the home for long hours and on weekends. He testified that he did not believe things were being taken care of at home and felt that he was required to be there. He testified that on returning home at approximately 5:00 PM he might find the Applicant in bed and his son with a dirty diaper. [^1]

[36] After winding up his practice, he found a job as a tool and mould maker at a company called REKO. He was hired and received in-house training in the mould making field. Once hired, he worked 40 hour weeks with an option to work on Saturday mornings. It was suggested to him in cross-examination that he typically worked six days a week. He disagreed with this suggestion and said that while Saturdays were sometimes available it was not consistent.

[37] He continued in that position until he was laid off in either January or February 2005. Upon termination he believed that he was making $18 an hour.

[38] A friend suggested that he apply at Cintas, a company that provides uniforms. He started in April 2005 as a service sales representative, i.e. a route driver. His responsibilities were deliveries, pickups, and to grow the route. He continued in that position until June 2012, well after the divorce order of Justice Campbell. At that time he was making approximately $40-$45,000.00 a year.

[39] In June 2012 he was promoted to direct sales manager. His base salary was $52,000.00 a year with the potential for bonuses.

[40] He testified that the children had been in his primary care since October 2008. Following the 2010 divorce trial it was ordered that the children were to continue to reside with the respondent. The respondent was to pay $375.00 a month to the Applicant; the Applicant was to pay $373.00 a month to the respondent as child support. He testified that child support stopped on consent in June 2018.

[41] He testified that prior to the order of Justice Campbell in 2010 and following the separation in 2008 there was no support paid by either the Applicant or the respondent.

[42] The respondent was shown his financial statement wherein he indicated that his T4 slip for 2018 indicated an annual income of $80,238.80. His 2015 notice of assessment indicates an annual income of $75,009.00. His 2016 notice of assessment indicates an annual income of $74,882.00. His 2017 notice of assessment indicates an annual income of $78,476.00.

[43] The respondent indicated that his current salary is broken down as a base salary of $66,000.00 plus a maximum benefit of $15,000.00. His 2018 salary, he testified, was based on that formula plus prizes that he and his team had won. He testified that he expects his 2019 salary to be about $77,000.00.

[44] The respondent testified that he has remarried and that his wife also is employed at Cintas; she earns approximately $40,000.00.

[45] He testified that he has no plans to change his employment, and hopes to retire in nine years at the age of 65.

LAW and ANALYSIS

[46] On July 29, 2010 Justice Campbell in his reasons for judgment, made an order for spousal support, on a needs and compensatory basis.

[47] At paragraph eight of his order he stated:

There is no question that the respondent has an obligation to pay spousal support. That was effectively conceded by the respondent at the opening of trial and in Mr. Howie’s written submissions.

He further stated at paragraph 10:

During the course of the marriage the Applicant was the primary caregiver of the children, particularly when they were younger. That does not mean the respondent was not significantly involved with the children. It is merely the reality of the parties’ respective employment.

At paragraph 14:

This was a long-term marriage. The parties cohabitate it approximately 19 years. It was also what I would describe as a typical modern marriage. That is, both parties worked outside the home, pooling their financial resources and working together to raise the children.

Finally, at paragraph 18 he held:

Of particular note is the economic disadvantage suffered by the Applicant as a result of her childcare responsibilities during the time the children were young. I find that she has and will continue to have difficulty becoming totally self-sufficient. The evidence of the parties establishes that they were content that the Applicant worked part time while the respondent pursued his vocational goals on a full-time basis.

[48] The order of Campbell, J. relied on the SSAG Guidelines (with children formula) based on the parties income in 2010. He selected the “high end” of the SSAG formula for the purposes of spousal support, and ordered the Respondent to pay $375.00 per month. The child support payable by the Applicant was set at $373.00 per month based on her income at that time.

[49] In making the spousal support order, Justice Campbell concluded that the amount of spousal support payable by the Respondent could be off-set by the child support payable by the Applicant. This effectively resulted in a zero-net payment of spousal support until such time as child support terminated in June 2018.

[50] The Applicant now seeks spousal support in the amount of $1,327.00 – the high end of the SSAG guideline, based on the Respondent’s income estimated at $80,238.00. The Respondent asks that spousal support be terminated.

[51] The parties are in agreement that the termination of the child support order constitutes a change of circumstances pursuant to s. 15.3(3) Divorce Act, R.S. 1985, C.3 for the purpose of an application for a variation or termination of the spousal support order.

[52] Section 15.2(6) of the Divorce Act sets out the objectives of a spousal support order:

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) a portion 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.

[53] The order of Justice Campbell clearly addressed the foregoing objectives in awarding spousal support to the Applicant.

[54] It now falls to this court to determine whether the spousal support order awarded should be varied or terminated.

[55] The objectives in varying a spousal support order are set out in s. 17 (7) of the Divorce Act and mimic those articulated in s. 15.2(6) of the Act:

(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;

(b) a portion between the former 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 former spouses arising from the breakdown of the marriage; and

(d) insofar as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.

[56] In discussing the proper approach for courts to take on an application for a variation of spousal support, the court in P. (L.M.) v. S.(L.), 2011 SCC 64 at para. 50 stated:

In short, once a material change in circumstances has been established, the variation order should "properly reflect the objectives set out in s. 17(7) ,... [take] account of the material changes in circumstances, [and] consider the existence of the separation agreement and its terms as a relevant factor" ( Hickey , at para. 27). A court should limit itself to making the variation which is appropriate in light of the change. The task should not be approached as if it were an initial application for support under s. 15.2 of the Divorce Act .

[57] In seeking an increase in spousal support, the Applicant submits that this should follow, owing to an increase in the Respondent’s earnings since the 2010 order of Justice Campbell.

[58] This issue was considered in Thompson v. Thompson, 2013 ONSC 5500 at para 103:

The authors of the SSAG and the cases decided since the guidelines were introduced have established that the treatment of post-separation increases in a payor's earnings in spousal support cases is ultimately a matter of discretion for the court, to be undertaken having regard for the unique circumstances of each case and the general factors and objectives underlying spousal support. Upon considering these factors and objectives and the relevant case-law, I conclude that the following general principles should guide and inform the court's exercise of discretion on this issue:

(a) A spouse is not automatically entitled to increased spousal support when a spouse's post — separation income increases.

(b) The right to share in post-separation income increases does not typically arise in cases involving non-compensatory claims, since the primary focus of such claims is the standard of living enjoyed during the relationship.

(c) Compensatory support claims may provide a foundation for entitlement to share in post-separation income increases in certain circumstances. The strength of the compensatory claim and the nature of the recipient's contributions appear to be the major factors which may tip the balance either for or against an entitlement to share in the increased income.

(d) The recipient spouse may be permitted to share in post-separation increases in earnings if they can demonstrate that they made contributions that can be directly linked to the payor's post-separation success. The nature of the contributions does not have to be explicit, such as contribution to the payor's education or training. The question of whether the contributions made by the recipient specifically influenced the payor's post-separation success will depend on the unique facts of every case.

(e) A spousal support award is more likely to take into account post-separation income increases where the relationship was long-term, the parties' personal and financial affairs became completely integrated during the course of the marriage and the recipient's sacrifices and contributions for the sake of the family and resulting benefits to the payor have been longstanding and significant. When this type of long history of contribution and sacrifice by a recipient spouse exists, the court will be more likely to find a connection between the recipient spouse's role in the relationship and the payor's ability to achieve higher earnings following the separation.

(f) In determining whether the contributions of the recipient were sufficient, the court should consider such factors as whether the parties divided their family responsibilities in a manner that indicated they were making a joint investment in one career, and whether there was a temporal link between the marriage and the income increase with no intervening change in the payor's career.

(g) If the skills and credentials that led to the post-separation income increase were obtained and developed during the relationship while the recipient spouse was subordinating their career for the sake of the family, there is a greater likelihood of the recipient deriving the benefit of post-separation income increases.

(h) By contrast, the likelihood of sharing in such increases lessens if the evidence indicates that the payor spouse acquired and developed the skills and credentials that led to the increase in income during the post-separation period, or if the income increase is related to an event that occurred during the post separation period.

(i) Assuming primary responsibility for child care and household duties, without any evidence of having sacrificed personal educational or career plans, will likely not be sufficient to ground an entitlement to benefit from post-separation income increases.

(j) Evidence that the post-separation income increase has evolved as a result of a different type of job acquired post-separation, a reorganization of the payor's employment arrangement with new responsibilities, or that the increase is a result of significant lifestyle changes which the payor has made since the separation may militate against a finding that the recipient should share in the increase.

(k) Where the payor's post-separation advancement is related primarily to luck or connections which they made on his own, rather than on contributions from the recipient, the claim for a share in post-separation income increases will be more difficult.

(l) The court may also consider the amount of time that has elapsed since separation as an indicator of whether the recipient's contributions during the marriage are causally related to the post — separation income increases.

(m) Evidence that the payor also made contributions to the recipient's career advancement, or that the recipient has not made reasonable steps towards achieving self-sufficiency are also factors that may preclude an award that takes into account post separation income increases.

[59] With a view to the objectives of spousal support, as set out in s. 15.2(6) of the Divorce Act, it is my view that Ms. Colautti is still in need of support, on the bases as set out by Justice Campbell.

[60] Ms. Colautti has made some efforts to improve her financial circumstances, but there is a pattern of what I would characterize as “under-performing”:

(a) Before and during the marriage she applied to Teacher’s College (three times) only to quit within one month [^2]; and

(b) While employed at the TD Canada Trust Bank, she never applied for any other positions and, in fact, never even considered it.

[61] Ms. Colautti possesses an undergraduate degree in Sociology, but does not appear to have worked in this field, or made any attempt to do so.

[62] For the last nine years, Ms. Colautti has notionally received spousal support in the amount of $375.00 per month. Owing to the set-off of child support ($373.00 per month), she has effectively received nothing.

[63] The spousal support award made by Justice Campbell was at the high end of the SSAG, based on his 2009 income of $44,966.00.

[64] Mr. Eggett’s income has increased since the separation and divorce. In my view, this increase was entirely based on his own actions. There is no evidence that the Applicant made any contribution that can be directly linked to Mr. Eggett’s post-divorce career success. Indeed, following separation, it was Mr. Eggett who had custody of the children. Accordingly, I am not inclined to rely of the SSAG for the purposes of awarding spousal support.

[65] Ms. Colautti is an intelligent woman. However, for whatever reason, she does not see fit to challenge herself. She seems content in her current position, and the reality is that unless she chooses to pursue other employment she will likely remain within her current economic bracket.

[66] The expectation is that Ms. Colautti will become self-sufficient. She has the tools to do so; it will fall to her to ensure that happens.

[67] It is the order of the court that spousal support, in the amount of $375.00 per month, continue for a period of two years. Spousal support shall terminate, effective March 31, 2021.

[68] There is no order as to costs.

“Justice K.A. Gorman”

Justice K.A. Gorman

Released: April 3, 2019

Footnotes

[^1]: Ms. Colautti was called in Reply and testified that their son had not yet been born when the Respondent quit his law practice. [^2]: The fourth time she applied, although accepted, she never even attended.