COURT FILE NO.: FD1282-15
DATE: 2019/02/19
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Maria Trindade King
Jordan D. McKie, for the Applicant
Applicant
- and -
Lawrence Robert King
Self-Represented
Respondent
HEARD: January 15, 16 and 17, 2019
GARSON J.
REASONS FOR JUDGMENT
Introduction
[1] The parties came before me on the issues of equalization, retroactive and future spousal support and a number of ancillary orders.
[2] At the conclusion of the hearing, I released brief written reasons on the issue of equalization since the parties agreed on the amount ($35,571.41) and the source of the funds (the Respondent’s LIRA). I reserved on the issue of spousal support and advised the parties I would release my decision and those reasons in due course. These are those reasons.
Background
[3] Both parties testified at trial. Much of the evidence is not in dispute. The respondent concedes that the applicant is entitled to spousal support. I need only briefly review the relevant facts before assessing the appropriate quantum and duration of spousal support.
[4] The parties began residing together in March 1985 and were married in July 1988. The applicant is 52 and the respondent is 50. There are two children of the marriage, both adults and independent as of today. The parties separated (for good) in June 2015, after a twenty-seven year marriage.
[5] Each of the parties has limited education with the applicant having her Grade 8 and the respondent his Grade 9 before retraining after a workplace accident.
[6] During the marriage, the applicant was the primary caregiver and did the majority of childcare duties while the respondent was, at least after retraining, the primary breadwinner. The applicant, when not at home with the children, held a series of jobs where she made minimum wage or just above and was able to be there for the children after school. She would quit various part-time jobs when she was unhappy or childcare costs made it financially unattractive to work.
[7] The respondent, initially a welder, shattered his ankle in a tragic workplace accident in 1989, requiring seven surgeries and more than four years to recover.
[8] The applicant was required to take time off work in 2007 for injuries to her wrists due to the repetitive nature of her work at that time. She also missed time from work due to psychological stress arising from the marriage and the break-up. She did not make a claim for WSIB as a result of these wrist injuries with any of her employers. These wrist injuries persist today and cause her significant pain and discomfort. She held a series of jobs at Sprucedale Long Term Care Facility and Food Basics and currently works at Giant Tiger for just over minimum wage. She anticipates her 2018 income to be approximately $30,000. She manages her on-going wrist pain with braces and medication.
[9] After his workplace injury, WSIB funded the respondent to get his Operating Engineering Certification to run backhoe and excavator, which allowed him to achieve far greater earnings.
[10] After a series of jobs, the respondent found work with Hayman Construction which he began in 2005 and ended on February 19, 2016 when he was let go due to end of season and shortage of work. During that time, he rose to the level of Supervisor/Superintendent and was also the local head of the union.
[11] After retraining for his A-Z truck licence, he had a short stint at Colson Freight in April 2016 but quit due to poor compensation. He moved to Windsor in 2016 and began living with his common-law partner. He found a series of temporary jobs, some of which he quit and some of which resulted in lay-off for lack of work. At times he was earning between $35-$40/hour. He testified that he will start a new full-time job at $17/hour commencing January 21, 2019.
[12] Sadly, there were significant gaps of unemployment for the respondent during 2016-2018 including:
2016 – May 8 – December 31;
2017 – January 1 – April 10; July 18 – 19; and November 5 – December 31; and
2018 – the entire year (he lived off of $13,000 taken from his LIRA).
[13] The parties had a trial separation in 2014 during which the respondent paid the applicant’s rent from July – November 2014. The final and permanent separation took place on June 5, 2015. Since separation, the applicant lived for a period of time with her mother and sister in her mother’s small apartment where she shared a bed and bedroom with her aging mother. She now has a place of her own.
[14] A series of letters from counsel for the applicant to the respondent, dated July 9, 2015, August 12, 2015 and January 21, 2016 sought spousal support for the applicant. The respondent became very upset by these letters and sometime between September 2015 and January 2016 sent a series of angry text messages making clear to the applicant, amongst other unpleasantries, that:
(i) he was not paying her a dime until a court told him he had to;
(ii) a lay-off was coming and once it happens she won’t get a dime;
(iii) she was a money-grabbing bitch.
[15] In August 2016, spousal support was ordered by the court at a rate of $1885/month based on an imputed income to the respondent of $65,000 and the applicant’s income of $13,300. A FRO document calculating arrears to November 1, 2018 shows a balance owing of $55,004.94. The respondent was also ordered to pay costs of $2,850 on November 3, 2016 to be enforced by FRO. Those costs remain unpaid.
[16] The parties respective Line 150 incomes between 2012 and 2018 are as follows:
A R
2012 $14,780 $85,488
2013 $11,001 $94,691
2014 $15,090 $97,710
2015 $13,300 $78,728
2016 $18,345 $21,764
2017 $20,046 $40,109
2018 $30,000 (est.) $13,000 (LIRA)
[17] The applicant’s most recent Financial Statement, sworn January 22, 2018, shows reasonable monthly expenses of $2,138.90. The respondent, despite being ordered by the court to do so, did not file an updated Financial Statement.
Positions of the Parties
[18] The applicant seeks both retroactive and on-going spousal support. The applicant seeks an imputation of the respondents income at either:
(i) $93,586 (based on his average earnings between 2012-2014);
(ii) $78,740 (based on his 2017 income potential for the full year); or
(iii) $72,000.
[19] The applicant argues that she has made appropriate and reasonable efforts to achieve self-sufficiency. She submits that the respondent is deliberately and intentionally unemployed or underemployed in order to avoid paying spousal support and relies on his series of text messages as evidence of his clearly stated intentions.
[20] The respondent counters that he was angry when he sent the texts and has been laid off or terminated from most of his jobs. He maintains he is not intentionally trying to be underemployed, and that when he quit a few jobs, it made no financial sense to continue with that type of work. He points to his remaining in Ontario and only taking $13,000 out of his LIRA in 2018 as evidence of his true intentions.
[21] The respondent proposes that he pay $448/month for five years for on-going and future spousal support and pay arrears at a reduced amount at a rate of $150/month.
[22] He opposes his income being imputed beyond his upcoming $17/hour position ($32,640 yearly) and suggests that he and the applicant now earn roughly similar amounts and she now has a place to live and is well on her way to self-sufficiency.
The Law
[23] The onus is on the applicant to demonstrate a basis for imputing income to the respondent.
[24] The authority to impute such an income as appropriate in the circumstances arises from s. 19(1) of the Child Support Guidelines. Section 19(1)(a) allows the court to impute income where a spouse is intentionally underemployed or unemployed.
[25] In Drygala v. Pauli, 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (C.A.), at para. 23 the Court of Appeal sets out a three-part test before income can be imputed:
(i) is the spouse intentionally unemployed or underemployed?
(ii) if yes, is this required due to the needs of a child of the marriage?
(iii) if no, what is an appropriate amount to impute?
[26] Section 15.2(4) and (6) of the Divorce Act set out the factors and objectives I must consider in determining entitlement and quantum of spousal support. I am mindful of these factors and need not repeat them.
Discussion
[27] The respondent does not dispute the applicant’s entitlement to spousal support – nor should he. This was a long-term marriage where the parties were economically intertwined and the respondent was often the primary breadwinner. The applicant is clearly entitled to support both on a compensatory and non-compensatory basis. The applicant has demonstrated the need and the respondent has the ability and skills to work and to pay spousal support. The applicant has clearly suffered economic hardship as a result of the breakdown of the marriage.
[28] Turning to the issue of imputation, the respondent clearly acknowledged in his evidence that he “sort of” intentionally stopped working because it was no longer financially viable to him. Although he professes to have sent the text messages in anger, and I accept his explanation, he does not say that they are untrue. In other words, he explained the reason why he sent them but does not back away from the contents.
[29] I note that coincidentally since sending the texts, the respondent has been unemployed for longer periods of time than he was been employed. This is wrong. He is a skilled and relatively healthy man and has a legal obligation to seek out and maintain suitable employment.
[30] To his credit, he has recovered from a devastating workplace accident where he was earning modest income, to a string of years where he made significant earnings – i.e. 2012-2014. Although I accept the validity of some of his reasons for quitting, I do not accept his lengthy periods of self-imposed unemployment or underemployment.
[31] Although tempting, I am not prepared to impute his income for 2016-2018 at those early high-earning years of 2012-2015 for the following reasons:
(i) His ROE for Hayman Construction clearly confirms he did not quit but was laid-off for seasonal work reasons;
(ii) I accept his evidence that the nature of the construction work he has sought since moving to Harrow and Essex County is seasonal and even though he can earn $35-$40/hour, such work is not often available on a year-round basis; and
(iii) By all accounts he has no assets except his LIRA (which has been reduced by half for equalization purposes) and his negative balance of -$180.24 in his only bank account.
[32] Returning to the test in Drygala, I am prepared to find that he has been intentionally underemployed between February 2016 to present. More specifically, I rely on the contents of the text messages, his extensive periods of unemployment, and his willingness to commence a new job that pays less than half of the hourly amount for recent jobs he held in 2017. Simply put, his actions are consistent with his text messages, and inconsistent with his legal obligation to support the applicant. The fact that he enjoys subsidized housing and utilities and food is of no consequence to his legal duty to support his ex-spouse of twenty-eight years. Accordingly, I am prepared to impute an annual income from January 1, 2016 onward of $50,000.
[33] The amount of $50,000 is not some arbitrary or unreasonable figure. It is derived from the evidence I heard and accept that he is likely capable of earning an hourly wage of between $35 - $40/hour that is equivalent of approximately $75,000 annually and likely able to earn such income for at least two-thirds of the year, accounting for lay-offs and slowdowns. I also take into account his age, experience, skills, prior learning history and available job opportunities.
[34] I accept that the applicant has made best efforts to seek out and maintain employment since separation and rely on her line 150 income for the years 2015-2018 for the purposes of determining the appropriate amounts of spousal support owing and relying on the Spousal Support Advisory Guidelines (“SSAG”).
[35] Going forward spousal support shall be payable at a rate of $729 per month, based on the respondent’s imputed income of $50,000 and the applicant’s income of $30,000. This is the mid-level amount of support suggested by the SSAG through DivorceMate.
[36] Based on the length of the marriage and the age of the applicant, the duration for spousal support shall be for an indefinite period.
The Arrears
[37] I am prepared to rely on the respondent’s 2015 Line 150 income of $78,728 and impute his income for 2016, 2017 and 2018 at $50,000. This will reduce his arrears owing to $50,010 based on the following calculations that are based on mid-level support suggested by the SSAG through DivorceMate:
Arrears
2015 July – December $2,385 x 6 = $14,310 (based on her income of $13,300 and his income of $78,728)
2016 August – December $1,154 x 12 = $13,848 (based on her income of $18,345 and his imputed income of $50,000)
2017 January – December $1,092 x 12 = $13,104 (based on her income of $20,046 and his imputed income of $50,000)
2018 January – December $729 x 12 = $8,748 (based on her estimated income of $30,000 and his imputed income of $50,000)
Total: $50,010
[38] The $2,850 owing in costs is partially offset by a credit for the respondent the parties have agreed to in the amount of $1,800, leaving $1,050 to be added onto the arrears to be enforced by FRO for a total amount owing of $51,060. Accordingly, I fix his total arrears owing at $51,060.
[39] He is to pay these arrears at the rate of $350/month or $4,200 annually until they are reduced to nil.
Conclusion
[40] For the above reasons, I conclude that the respondent shall pay to the applicant spousal support in the sum of $729/month, on the first day of each, commencing January 1, 2019.
[41] Arrears are fixed at $51,060 including the outstanding costs order of Vogelsang J., dated November 3, 2016. There will not be an order for post-judgment interest on the outstanding costs award. This order shall bear post-judgment interest at the rate prescribed by statute.
Costs
[42] In the event that the parties cannot agree, I will receive written submissions on costs (for both this endorsement and my earlier January 17, 2018 endorsement) not to exceed five
pages (exclusive of Bills of Costs and Offers to Settle) from the applicant within 21 days and for the respondent within 21 days thereafter.
“Justice M.A. Garson”
Justice M.A. Garson
Released: February 19, 2019
COURT FILE NO.: FD1282-15
DATE: 2019/02/19
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Maria Trindade King
Applicant
- and -
Lawrence Robert King
Respondent
REASONS FOR JUDGMENT
GARSON J.
Released: February 19, 2019