COURT FILE NO.: 50-2017
DATE: 20190123
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Damion Willert
Applicant
– and –
Janet Carolyn Willert
Respondent
Mary E. Cull, for the Applicant
David A. Reid, for the Respondent
HEARD: October 24 and 25, 2018
Raikes J.
[1] The parties were married on July 14, 2004 and separated on February 26, 2016.
[2] There are four children of the marriage:
• Ashton Gregory Willert born February 25, 2004
• Olivia Marie Willert born August 25, 2005
• Ethan Michael Willert born July 16, 2007
• Edison (also called “Eddie”) Stewart Willert born June 28, 2011.
[3] For ease of reference I will refer to the parties and children by their first names in this decision.
[4] The issues at trial were: child support, spousal support, equalization and divorce. Partial Minutes of Settlement were filed shortly before commencement of the trial which resolved all other issues on a final basis. With respect to divorce, the parties agree that a divorce should be granted.
[5] The Applicant, Damion, has a grade 12 education. The day after he finished high school, he started working full-time at Northland Industries building pre-fabricated trailers and homes. He had that job when he met and started dating the Respondent, Janet. They began living together in a home on Frederick St. in Zurich, Ontario in 2002. Damion was then renting to own that home from his aunt, and was doing renovations to it.
[6] When they met and began living together, Janet was a full-time student at St. Clair College studying nursing. It was a three year program that went year round; viz. there were no extended summer holidays. Janet rented a room from a friend in Windsor for those nights when she stayed over for school; typically three or four nights a week.
[7] Janet received some money from her mother’s estate. She also worked part-time and, in her last year, she received a $6,000 student loan through OSAP. Janet graduated in late January 2004. She was then pregnant with Ashton, who was born on February 4, 2004.
[8] During the time they were living together and before her graduation, Janet paid for groceries and Damion paid the rest of their household expenses. Janet was home on weekends and for school breaks. While home, she was usually working to earn extra money for school.
[9] When Ashton was born, Damion was still employed at Northland Industries. In June 2004, Janet started work as a nurse at Blue Water Rest Home (hereafter “BWRH”) on a part-time basis. She had 20-24 hours of scheduled work and picked up shifts as and when they were available. Janet worked shift work while Damion’s hours were 6 a.m. to 3 p.m. most days. He cared for Ashton when off work if Janet was working. Damion’s mother helped with Ashton’s care when both parents had to work.
[10] Damion and Janet married July 14, 2004. In January 2005, they purchased a home on the edge of Zurich where they resided until the date of separation. They took out a mortgage through the CIBC for that purchase. They rolled some of their existing debt, including what was owing on Janet’s student loan, into the mortgage debt.
[11] Damion’s evidence is somewhat unclear on timing but I gather that he left Northland Industries to go to work at Exeter Machine, known as Gnutty’s, in 2004-05. He worked there as a machinist even though he did not have the qualifications to do so. Unlike Northland Industries, Damion had to work afternoon shifts at Gnutty’s. His work schedule was initially two week days followed by two week nights. At some point, he switched to a weekend shift where he worked from noon to midnight every Saturday and Sunday. He cared for Ashton during the week when Janet was working.
[12] Damion quit Gnutty’s to get a more regular shift. He started work at General Coach where he worked for roughly six months before being laid off. Fortunately, he was called by Northland Industries and returned to work there on a full-time basis. During this time, Janet continued to work at BWRH and became pregnant with Olivia.
[13] Olivia was born August 25, 2005. Janet took a six month maternity leave while Damion continued to work at Northland Industries. In February 2006, Janet returned to work at BWRH still on a part-time basis. As before, they shared care for the children with help from a local babysitter or Damion’s mother.
[14] In late 2006/early 2007, Janet changed employers. She moved to St. Elizabeth’s Nursing doing community nursing with palliative care patients. She travelled throughout the county providing care to patients in their homes. The new job gave Janet some control over when she was out and she did not have to work night shifts. It was considered part-time employment although she worked 30-35 hours per week.
[15] Ethan was born on July 25, 2007. Janet took a one year maternity leave after which she returned to St. Elizabeth. She continued to work for St. Elizabeth until October 2009 when she became a full-time nurse at the Blue Water Family Health Team (hereafter “BWFHT”). Her hours were regular weekdays with no travel around the countryside required.
[16] On June 28, 2011, Eddie was born. Janet took six months off for maternity leave during which she received EI benefits and a top up from her employer. She returned to work full-time as a nurse at BWFHT in January 20012.
[17] For his part, Damion worked at Northland Industries until May 2012. He then accepted a position at Descoe Plumbing, a wholesale plumbing and heating supply business located in Goderich. He started in shipping and receiving and has moved up to being a counter person who is involved in ordering.
[18] Although Damion and Janet talked about Damion returning to school so that he could advance his career, he never did. He testified that he felt they could not afford it and he did not know what he wanted to study. Those reasons continue to apply. Regardless, the change to Descoe Plumbing was largely motivated by the opportunity to advance; the Northland Industries job was a dead-end position.
[19] On February 26, 2016, Damion and Janet separated permanently. There have been no periods of reconciliation since then.
Post Separation Living Arrangements
[20] On separation, Damion moved to Grand Bend to live with his mother and brother. His father is elderly and was in a nursing home in Hensall. Damion’s mother wished to be closer to his father so they moved to a home in nearby Zurich. Damion continues to live with his mother and brother.
[21] The home owned by his mother in Zurich has a full basement with a living room, single bedroom and bathroom. Damion’s mother and brother have bedrooms upstairs. Damion sleeps in the basement. They share the kitchen and eat together as a family. Damion buys the groceries for the house as part of his contribution to household expenses.
[22] When the children come to visit and stay overnight, Olivia sleeps with her grandmother. There are two queen beds in the basement living room, and a bunk-bed in the basement bedroom. Eddie sleeps in one of the queen beds with Damion; Ashton sleeps in the other queen bed; and, Ethan sleeps on the bunk-bed in the bedroom. The children have the run of the house. Quarters are cramped and less than ideal, but they make it work.
[23] Janet and the children remained in the matrimonial home on separation. That house was sold in June 2016. When the matrimonial home was sold, there was no money available after payment of the mortgage and other debts; in fact, the parties split the excess debt then owing. Damion borrowed money from his father to pay his share.
[24] Janet and the children moved in September 2016 to another home that she purchased at 33 Edward St., Zurich. She still owns that home.
[25] In 2016, Janet began seeing Nick Regier whom she has known since their childhood. Mr. Regier has two children from a prior relationship who stay with him on alternating weekends. Janet and Mr. Regier discussed and planned to move in together in a home owned by Mr. Regier, which he renovated to add a bedroom. That move was to happen in September 2018. In anticipation of that move, Janet entered into a lease to rent her home at 33 Edward St. in Zurich.
[26] While she and her children moved to Mr. Regier’s house in September 2018, he has not. He has a separate residence that he is living in. She indicated in-chief that she has leased her home for 12 months to the daughter of a friend. Her monthly mortgage payment is $1,312.18 but the tenant pays only $1,200. Janet also pays the property insurance and repairs and maintenance for her home.
[27] With the trial date looming, Janet received correspondence from her lawyer in September asking for financial information concerning Mr. Regier. He is a farmer who works for his parents who own a very large farming operation. In any event, she testified that the letter and inquiries spooked Mr. Regier who was not prepared to provide the information requested. He decided that they should not move in together until everything was finalized. She testified that she is unsure whether that will ever happen.
[28] Because she had already sold her home and had leased the other property to a single mother, she and Mr. Regier entered into a written lease agreement for the house they were going to jointly occupy which he owns. Under that lease, she pays $1,500 per month as rent. The lease is terminable on 30 days’ notice. She also pays utilities.
[29] According to Janet, Mr. Regier has not discussed his finances with her. They each look after their own. She does not know what he earned in 2017 but estimated it at approximately $32,000. She learned only the day before she testified that there is no mortgage on his property. She also testified that the lease was something prepared by Mr. Regier that was to be signed even if they were living together.
[30] In cross-examination, Janet confirmed that Mr. Regier was at the courthouse as a potential witness when the trial started. He did not testify.
[31] She testified in cross-examination that Mr. Regier did not wish to share his financial information or be part of this litigation so “we decided not to live together at this point.” She agreed that their relationship is not broken but was definitely strained in September. She would “love” to live with him but does not see that in her near future. She had not paid any rent to Mr. Regier as of the date she testified. She was to start paying rent November 1.
[32] Although Janet was generally a good witness, I found her evidence as to the arrangements with Mr. Regier and the prospects of their future relationship to be far less credible and reliable. Simply put, I do not believe her evidence on this point. It strikes me as entirely convenient and contrived that on the relative eve of a trial where the issues of child and spousal support are to be determined, she and Mr. Regier put their plans to live together and share expenses on hold. In its place, she has a $1,500 monthly rent obligation which she had not yet began to pay. Moreover, if true, she has taken on a significant increase in her monthly expenses while continuing to suffer a shortfall on her house. That makes no sense financially or otherwise.
[33] I find that the plan to live together with Mr. Regier and to share expenses remains in effect. I have no information as to Mr. Regier’s financial circumstances but infer from the fact that he is employed, owns at least one home without a mortgage and was to share in the expenses of their residence that he earns at least $50,000 annually.
Post Separation Employment
a. Damion
[34] Damion remains employed by Descoe Plumbing. He has the opportunity to move up in the company but would likely have to move to Etobicoke to do so. He has considered going back to school but cannot afford it and does not know what he would study. He has applied for better paying jobs in the area but, to date, has been unsuccessful.
[35] He works very little overtime at Descoe. There are perhaps two or three weeks when inventory is being done where there is the opportunity to work extra hours. His commute time to work is 30-35 minutes. The company does not provide a vehicle nor does it contribute to his vehicle expense. He owns a 2010 Dodge Grand Caravan with approximately 246,000 kms.
[36] Damion’s work hours are Monday – Friday from 8 a.m. to 5 p.m.. Occasionally he works 7 a.m. to 4 p.m.. His position is non-unionized. He currently gets three weeks for vacation each year, and five personal/sick days.
[37] He has a medical-dental benefits package through his employment. He is enrolled on the family coverage plan. Janet is still covered at this point. He considered downgrading the plan coverage but has learned that Eddie will require braces. Accordingly, he is going to keep the existing coverage. He can only change his coverage at specific points which occur every two years.
[38] In addition, his benefits plan includes life insurance equivalent to one year’s wages. He pays for that benefit. He also pays for Long-Term Disability coverage. Descoe matches his RRSP contributions.
[39] Damion earned $37,604 in 2016. He earned $42,650 in 2017 and, according to his financial statement sworn October 5, 2018, he expects to earn $48,232 in 2018.
b. Janet
[40] Janet was working full-time at BWFHT at the date of separation. In November 2016, she left BWFHT and returned to work at St. Elizabeth Nursing as a visiting nurse. That was a full-time position. In June 2017, Janet became the full-time Director of Care at BWRH. She was employed in that position as at the date of trial.
[41] Janet’s 2016 gross income from all sources was $72,811. In 2017, her gross income was $82,493 and her estimated 2018 income per her financial statement sworn October 23, 2018 is $102,962 which includes the Child Tax Benefit. Her financial statement attaches a paystub for the two week pay period ending October 6, 2018 which showed her year-to-date income was $72,148.
[42] She testified that in September 2018, the Board of Directors increased her hourly wage to $44.72. She does not expect annual increases. Given her evidence that she is now renting her house at 33 Edward St., she will have ongoing rental income. That source of income and the amount are not reflected in her October 23, 2018 financial statement even though rent presumably started to be paid in September when she moved out and the tenant moved in.
[43] Janet first had benefits through work when she was working at St. Elizabeth in 2017. She notified Damion of the plan which covered 80% of both dental and prescription drugs. She initially told Damion to release his family coverage when she saw her coverage; however, when she learned that Eddie would need braces, she asked him to hold off.
[44] She does not expect that any of the other children will need braces. All of the children are otherwise healthy. Damion’s benefit coverage will contribute up to a maximum of $2,000 toward the cost of Eddie’s braces. In light of the cost of that coverage, the maximum it will pay toward the braces and the fact that her plan covers the children otherwise for drugs and dental, she is alright with Damion terminating the family coverage on his plan.
Ongoing Access Arrangements
[45] As mentioned, the parties entered into partial Minutes of Settlement shortly before the trial commenced. Those Minutes have been approved and a final order is to issue consistent with same. The Minutes deal with custody and child care arrangements.
[46] Damion and Janet have joint custody of the children and must make major decisions concerning their health, schooling, and extracurricular activities together. The care schedules differ for Ashton on the one hand, and Olivia, Ethan and Eddie on the other. Ashton is now 14 years old.
[47] The Minutes of Settlement and resulting order provide as follows:
a. For Ashton,
i. He will spend shared time with each of his parents with flexibility available within both residences;
ii. The schedule will be developed by Damion and Janet with input from Ashton as to his views and preferences;
iii. The schedule may not be entirely equal shared time, and from time to time, he may spend more than 60% of his time with either parent depending on his wishes;
iv. Neither parent will insist on an exact equal time sharing arrangement;
v. Damion and Janet will develop a shared calendar that is accessible to them and to Ashton;
vi. Ashton will be primarily responsible for inputting his activities into the calendar;
vii. Damion and Janet will then discuss and allocate the remaining time with input from Ashton and input it into the calendar
viii. Neither parent will try to influence Ashton’s views and preferences as to time spent with either parent, and both will encourage Ashton to have a positive relationship and spend time with the other parent.
b. For Olivia, Ethan and Eddie,
i. There is a four week repeating schedule set out in a chart that applies during the school year save for Christmas holidays and March Break;
ii. There is a slight difference in the schedule for Olivia who prefers to have some one-on-one time with Damion and Janet without her brothers, Ethan and Eddie.
iii. Damion has the children 10 of 28 nights which amounts to roughly 35.7%.
c. For all four children,
i. The regular schedules are suspended during Christmas holidays, March Break and the summer school holidays;
ii. In the summers, the children will be with each parent for half of the time, likely but not necessarily on a week about basis;
iii. March Break and Christmas holidays will be shared equally.
[48] The Minutes of Settlement and order address the ongoing care schedule. I turn now to the care schedule since the date of separation – what have the arrangements been since then?
Care Arrangements Between Separation and Trial
[49] Soon after separation, Damion had the children in his care on alternating weekends from Friday after school until Monday morning. On Tuesdays, Janet worked late. He came to the house to cook dinner and help the children with homework. Janet called when she was close to the house and he left.
[50] The alternating weekend arrangement expanded to Thursday after school to Monday morning together with an overnight visit from Thursday after school to Friday morning during the off week. Damion was uncertain when these arrangements changed but believes it was soon after he moved with his mother and brother to Zurich.
[51] In addition, Damion testified that each of Olivia, Ethan and Eddie have asked for an extra night with him from time to time. This is to give them some one-on-one time. He has not tracked those extra days but believed that they would be 2-3 days each year. Janet did not testify about the extra days each child had with Damion.
[52] In the summer of 2017, the children alternated weeks with each parent. March Break and Christmas school holidays were likewise shared equally.
[53] From late May 2017 to May 2018, Ashton lived roughly 50% of the time with Damion. In May 2018, he and Ashton had what Damion referred to as “a tiff”. Ashton called him and said that he wanted to live with Janet. Since then, Damion and Ashton have struggled to find the adjustment that will work best for Ashton.
[54] Janet asserts that in May 2018, Ashton resumed living with her more than 60% of the time and, accordingly, child support is payable by Damion at a different rate since then. Damion disputes that Ashton has been in her care more than 60%. Accordingly, it is necessary to consider the evidence as to Ashton’s residence between May-October 2018.
[55] Exhibit 1 is comprised of calendar pages for May-October 2018 with typed and handwritten notes to delineate nights spent with Damion, nights that were to be with Damion but instead were with Janet, and activities for Ashton like trips or camping etc.. The handwriting is Janet’s.
[56] The calendar for May 2018 shows that:
a. Ashton was at Damion’s overnight for 9 of 31 nights;
b. There were two nights that Ashton was supposed to be at Damion’s but went to ball hockey and stayed at Janet’s instead. He went to school on those Mondays from Damion’s with a lunch packed for him;
c. On May 28, Ashton went to school from Damion’s; and
d. Ashton went on a hockey trip on one day when he was to be with Damion.
[57] In April or May 2018, Ashton started ball hockey on Monday evenings after supper. Janet registered him to play. In May, Ashton advised Damion that he was going to go to ball hockey from his mother’s and stay the night at her place. This made sense because ball hockey was nearer to Janet’s and finished after 8 p.m.. Damion agreed to that plan. Ashton went to school from Damion’s on Mondays, and Damion packed him a lunch.
[58] Ashton also started Air Cadets in May 2018. A friend asked him to join. Ashton went, liked it and texted Damion that he was going to being staying the night at his mother’s. Damion only learned of this change that day. There was, in his mind, no compelling reason why Ashton could not have stayed the night with him. He and Ashton had words about the change of plans. The calendar does not reflect that overnight stay.
[59] The calendar for June 2018 shows:
a. Ashton spent eight nights with Damion;
b. Ashton went camping with friends on June 23 and 24; as such, he was not in either parent’s care; and
c. Ashton spent Father’s Day with Damion.
[60] Ashton approached Damion in June 2018 about a weekend camping trip with friends from school. Damion told him to talk to Janet who agreed that he could go. When those friends backed out, Damion revoked permission. Ashton was upset. Janet texted Damion to explain that while his original friends were not going, other friends were. Damion then agreed that Ashton could go.
[61] The calendar for July 2018 indicates:
a. Ashton spent 10 nights with Damion;
b. Ashton and Ethan were at a camp between July 15-20 inclusive; and
c. Ashton was with Uncle Jerry during Damion’s time from July 5 to 7.
[62] Starting July 5, 2018, Ashton spent an extended weekend in Owen Sound visiting Janet’s Uncle Jerry. Janet drove him but did not stay. This visit happened during his scheduled time with Damion.
[63] The August 2018 calendar page indicates that:
a. Ashton spent 10 nights with Damion; and
b. Ashton was at a camp from August 20-24.
Finally, the September 2018 calendar page shows that Ashton spent 11 nights with Damion.
[64] Ashton has struggled emotionally since the separation. The special arrangements in the Minutes of Settlement reflect Ashton’s desire to have greater say, flexibility and control over who he spends time with. Janet testified that Ashton has expressed that it is his time, not mom or dad’s time. In September 2018, Ashton informed Damion that he was going to stay at Damion’s on Tuesday and Wednesday every week, and every other weekend from Friday to Monday morning with his siblings.
[65] The arrangements in the Minutes of Settlement filed shortly before trial reflect Ashton’s desire for greater say and flexibility to stay where he wishes.
Extracurricular Activities
[66] The children are very active, and are supported and encouraged by both parents to be so. All of the children are involved in extracurricular activities during the school year. Janet generally organizes and enrolls the children in the activities. Ashton and Ethan play hockey, as does Olivia. Eddie is currently taking swimming lessons. Olivia has also done horseback riding lessons.
[67] Each parent is responsible to ensure the children get to their activity if it falls within their scheduled time. Both parents help out as needed. Damion coached Eddie’s soccer team, and has been a time-keeper, trainer and substitute trainer and coach for the boys’ hockey teams. He has driven Olivia to a couple of riding lessons. He has also attended games for the children when they are playing on a day they are with Janet including some out-of-town games. He cannot afford to stay overnight and has not, therefore, attended some of the tournaments that are farther away. Janet regularly drives the children to games and practices.
[68] While Damion has contributed to some of the extracurricular expenses, the evidence clearly established that they have been largely borne by Janet. As mentioned, she does not seek reimbursement for same but asks that they be taken into account if spousal support is found to be payable.
Living Expenses - Damion
[69] Damion has sworn and filed three Financial Statements dated May 4, 2017, January 12, 2018 and October 5, 2018.
[70] According to his May 4, 2017 Financial Statement, Damion was paying rent/board of $200 per month to his mother. In addition, he estimated his monthly groceries at $700 plus $50 for cleaning supplies. The groceries are for his mother, brother, the children when with him and Damion. He also estimated $200 for meals outside the home, $50 for pet care and $460 for oil and gas for his vehicle.
[71] The January 12, 2018 Financial Statement is substantially the same save that pet care is $100/month.
[72] The most recent Financial Statement again shows substantially similar amounts with minor adjustment. For example, cleaning supplies have risen to $90 while meals outside the house are reduced to $150. He breaks down the amount of the food cost attributable to him and the children. It is evident that his monthly expenses may reduce slightly if he is able to change his benefits from family coverage to single coverage.
[73] The expenses and amounts shown strike me as reasonable. He is not living an ostentatious lifestyle with vacations, lots of dining out and extravagance. To the contrary, his means are modest and he is striving to live within those means while staying involved in the children’s lives.
[74] Damion testified that he would like to get his own place but is simply unable to afford to do so. He has looked at other properties. He maintains that without spousal support, he cannot hope to live independent of his mother and brother.
[75] Further, he testified that he cannot afford to buy things for the children or take them on trips. He does buy them clothes but usually from a thrift store. He cannot keep up with Janet who can and does buy nicer clothes and gifts for the children. She also takes the children camping and on other excursions that he cannot.
Living Expenses - Janet
[76] Janet has also filed three Financial Statements: June 1, 2017, December 28, 2017 and October 23, 2018.
[77] The first Financial Statement was sworn soon after separation and around the date that she and the children were to move to 33 Edward St in Zurich. Her estimated annual income was $89,405 inclusive of the Child Tax Credit. Janet’s expenses include the mortgage, insurance and utilities for the home, groceries and meal expenses, transportation costs etc. Her monthly expenses projected for a year exceeded her anticipated income by almost $3,000. There is nothing in the expenses that stands out as unusual or extravagant. She was then paying $228/month on debt payments.
[78] According to her December 28, 2017 Financial Statement, Janet estimated her ongoing annual income at $91,478. Her expenses were much higher – estimated at $108,937. The increase in expenses is attributable in part to increased amounts for groceries, car lease payment, car repair costs, vacations and entertainment/recreation.
[79] The most recent Financial Statement projects her annual income to be $102,962 but her expenses are now estimated to be $110,575. This Financial Statement includes rent of $1,500 per month but no corresponding rental income for 33 Edward St.. There is also a trailer payment of $226 per month. The parties owned a trailer at the date of separation on which money was still owing. Janet bought out Damion’s interest in the trailer and has continued to make the payments.
[80] Given my finding above concerning Janet’s arrangements with Mr. Regier, the figures provided for expenses require adjustment at a minimum.
Child Support Paid
[81] From the date of separation until the matrimonial home was sold, Damion paid one-half of the monthly mortgage payment and one-half of the trailer payment which amounted to approximately $950/month in aggregate. After the house was sold until Ashton began to split his time on an alternating week basis, Damion paid $808/month as child support.
[82] When Ashton moved in with Damion and began to alternate his residence, Damion’s child support was reduced to $440/month. He also applied for and was later given payment of the Child Tax Credit for Ashton retroactive to June 2017. He received $197/month for that benefit which was not shared or divided with Janet.
[83] In September 2017, Damion’s monthly child support was further reduced to $196/month because of the offset for Ashton and the difference in the parties’ respective incomes at that point. He paid that monthly figure until recently when it increased to $119 payable biweekly. The most recent change is attributable to the change in the Table amounts made in 2018. He continues to pay $119/biweekly based on a shared parenting regime for Ashton.
Spousal Support
[84] It is undisputed that no spousal support has been paid since the date of separation. Entitlement, duration and quantum are in issue.
Net Family Property
[85] Both parties filed updated NFP Statements. According to the Statement filed by Janet in the Supplementary Trial Record, Damion owes her $3,463 for equalization. Damion’s NFP Statement was marked as Exhibit 3 at trial. He calculates the equalization payment owed by Janet to him at $7,748. Neither side provided appraisals or documentation to support the values ascribed to the items in issue.
[86] Counsel advise that if I simply indicate the amounts for particular items, they will calculate the equalization payment owing.
[87] Many of the items and values are common to both Statements. The differences are:
a. Janet places a value of $300 on household items retained by Damion. He describes the items as an old television and corner cabinet and cedar chest which he values at $200 collectively;
b. Janet values the household contents she retained on separation at $2,000. Damion values same at $7,500;
c. Janet values a Suburban she retained on separation at $4,500. Damion values it at $7,000. The vehicle was sold in 2018 for $500;
d. Damion listed a 1992 [sic] Ford Model T at $7,000 which he owned and kept on separation. Janet did not include same in her list of assets owned on valuation date (section 4(a)) although she does include it in the section for assets owned on date of marriage;
e. Janet values a lawn tractor at $800 and a John Deere tractor at $800. Damion values them at $500 and $200, respectively;
f. Janet values the living room television and P.A. system retained by Damion at $2,000 collectively. Damion does not mention a television and values a karaoke/P.A. machine at $500;
g. Janet collectively estimates the value of Damion’s tools and a generator at $1,000. Damion estimates the value of same as $500 in aggregate;
h. For property, debts and other liabilities on date of marriage, Janet estimates that she owed $6,000 for student loans with which Damion agrees. However, Damion lists the karaoke/P.A. machine at $800 and a 1994 Buick Regal at $5,000. Those items are not addressed in Janet’s Statement in section 3(a) ; and
i. Under Part 6 dealing with excluded property on the date of marriage, Damion lists the Model T, an insurance policy through Manulife, a generator and the corner cabinet and cedar chest as gifts from various family members having an aggregate value of $10,450. He estimates Janet’s assets at the date of marriage to be zero. Janet estimates her assets at the date of marriage to be $1,500. She estimates Damion’s asset (the Model T) at $7,000.
[88] Damion testified that on separation, he received an old television, lawn mower, blower, P.A. system, lawn equipment, tools, generator and a Model T which was a gift from his father. Janet retained the kitchen furniture, utensils, small appliances, washer and dryer, the other televisions, living room furniture, upstairs furniture including an almost new bedroom suite. According to Damion, he asked for the dresser from the new bedroom set. Janet did not want to break up the set so he settled for a dresser from an aunt and uncle.
[89] Damion testified that when he left there was an IKEA cabinet for which they paid $1,200 which was not put together. The bedroom suite was a Boxing Day special purchased for approximately $2,500-3,000. He estimated the cost to replace household goods at $2-3,000 if used goods were purchased but indicated that range was speculation.
[90] With respect to the lawn mower/tractor, one of them was quite old and he sold it for parts. It was leaking oil and had flat tires.
[91] Janet testified that she kept the family vehicle, a Suburban, on separation. She previously valued it at $7,000 in earlier Financial Statements but reduced that value to $4,500 in her NFP Statement for trial. She indicated that the $7,000 was just an estimate and the lower value was used because of the vehicle’s condition. She recently sold it for $500.
[92] She estimated the value of the lawn mower and tractor at $800 each but indicated in-chief that she did not know their values; they could be worth less.
[93] She received a ring from her mother when she died. It was a wedding/engagement ring. It has never been appraised. She estimated its value at $1,500.
[94] Janet estimated the value of the television and P.A. – karaoke machine system at $2,000. She agreed that Damion had the P.A.- karaoke machine at the date of marriage. It included four large speakers.
[95] She understood that the generator was a gift from his father to both of them. In any event, she placed a value on the generator and tools of $1,000 as estimate – she is not sure of the value.
[96] With respect to the Buick Regal which is not referred to in her NFP Statement, she agrees that it was purchased in 2003 before they married. She was pregnant at the time. It was a rental before purchase. She “guessed” that the purchase price was $8-10,000 which was 100% financed. They made regular monthly payments on that loan until the date of marriage.
[97] With respect to household contents, she testified that:
a. All of the appliances that remained were sold with the house in 2016;
b. The washer was then five years old;
c. The dryer was two years old because it was replaced under warranty;
d. She paid $300 on Kijiji to purchase the kitchen table and chairs and had had same for a few years by the date of separation;
e. The beds were mostly given to her by friends. There was one that she purchased at a local second hand store;
f. The bedroom set that Damion referred to consisted of two dressers, two side tables and the bed. It was purchase 1-2 years earlier for no more than $1,000;
g. The IKEA cabinet is still in the box. She has no use for it;
h. He asked for and she gave him the television from the living room.
[98] The evidence provided by the parties as to the value of various disputed items is lacking and, to a large degree, speculative. Even the descriptions provided are limited. For example, how many kilometers were on the Suburban at separation? Was it rusting? What shape was the engine in? Such useful information was not provided.
[99] As a result, I must take the evidence, such as it is, and simply do my best. There is no science to my values; rather, a simple attempt at a common sense approach. I find as follows:
a. I fix the value of the Suburban at the date of separation at $6,000;
b. I fix the value of the household contents retained by Janet upon separation at $5,500;
c. I fix the value of the generator and tools at separation at $1,000 and find that the generator was a gift to Damion alone;
d. I fix the value of the television, cedar chest and cabinet that Damion received on separation at $300;
e. I fix the value of the Model T at separation and on the date of marriage at $7,000;
f. I fix the value of the lawn mower and tractor at separation at $600 in aggregate;
g. I fix the value of the ring Janet received from her mother prior to marriage at $1,500;
h. I fix the value of the P.A.- karaoke machine system at $1,200 on the date of separation and $1,800 on the date of marriage;
i. I fix the value of the Buick Regal at $9,000 less financing owing of $7,000 as at the date of marriage; and
j. I accept Damion’s evidence as to gifts from his family prior to marriage.
[100] I derived these values by recognizing that almost all of the assets in question were used. Some came from second hand stores. Damion and Janet were, of necessity, frugal in their purchases notwithstanding the debt they accumulated during their marriage.
[101] Based on the advice provided by counsel, I leave it to them to finalize the equalization payment. It will be modest and, therefore, unlikely to materially affect the issue of spousal support. If there is an item that has been overlooked, counsel may write to direct my attention to same.
Issues
[102] As noted at the outset, the issues in this trial were spousal and child support, equalization and divorce. I have dealt with the equalization issues above. The usual questions to satisfy the court for a divorce were not asked of either party. Therefore, either of them may move by basket motion for a divorce.
[103] The remaining issues are spousal and child support. The bulk of the evidence at trial dealt with these issues. I will deal first with child support and spousal support entitlement before addressing duration of spousal support and quantum of child and spousal support.
Child Support Entitlement
[104] The court may, on application by either parent, make an order for child support to be paid by either or both spouses for children of the marriage: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as am., s. 15.1(1). The court must do so in accordance with the applicable child support guidelines: s. 15.1(3).
[105] According to s. 3 of the Federal Child Support Guidelines, unless otherwise provided in the Guidelines, the amount of child support payable for children under the age of majority is the amount specified in the applicable table and the amount determined under s. 7 of the Guidelines.
[106] In Bates v. Bates, 2000 14734 (ON CA), [2000] O.J. No. 2269, the Ontario Court of Appeal held that the court’s ability to deviate from the Table amount is strictly limited and clearly specified. The court may depart from the Table amounts only under s. 17(6.2)-(6.5) of the Divorce Act or under ss. 4, 5, 7-10 of the Guidelines. In considering an application for deviation under any statutory exception, the court must first:
a. Make a presumption in favour of the Guideline amount;
b. Impose an onus on the party seeking the deviation to establish on “clear and compelling” evidence that the deviation is in the child’s best interest;
c. Consider all statutory factors in the section relied upon without giving pre-eminence to any one factor;
d. Refuse to grant the deviation if based merely on a discretionary provision;
e. Focus on the child’s circumstances and not perceived parental fairness considerations, such as balancing the means of the parents.
a. Section 9 Guidelines
[107] Damion relies on s. 9 of the Guidelines which deals with situations of shared custody/care. Section 9 states:
- Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account
(a) the amounts set out in the applicable tables for each of the spouses;
(b) the increased costs of shared custody arrangement; and
(c) the conditions, means, needs and other circumstances of each spouse and of the child for whom support is sought.
[108] The leading case under s. 9 is the seminal decision of the Supreme Court of Canada in Contino v. Leonelli-Contino, 2005 SCC 63. The following principles emerge from that decision:
The first step is to determine whether the evidence establishes that the 40% threshold has been met;
If it has, then the court must determine the appropriate amount of support based on a budget;
The discretion to be exercised by the court requires consideration of the conditions and means of the parents and the needs of the children;
The weight to be accorded each factor will vary according to the facts of each case;
A pro-rated set-off of the amount each parent is required to pay according to the applicable Table is a starting point for analysis of the means and conditions of the parents;
Further adjustments may be warranted to account for fixed and variable costs that each parent bears as part of his or her spending patterns;
The court should consider the budgets and actual child care expenses of each parent as they relate to increased costs, if any, that arise under the shared care arrangements; and
There is a broad discretion under s. 9(c) to conduct an analysis of the resources and needs of both parents and children. That analysis is necessarily contextualized to the particular facts of the case. Helpful factors include the actual spending patterns of the parents, the ability of each parent to bear the increased costs of shared care, and the standard of living of the children in each household.
[109] Dealing first with ongoing child support, the Partial Minutes of Settlement contemplate that Olivia, Ethan and Eddie will be with Damion 10 nights in 28, and half of the Christmas holiday, March Break and summer holidays. I calculate that they will be in his care 38.76% of the time. I arrive at that figure as follows:
a. July and August each have 31 days. I allot 31 days to Damion.
b. Christmas holidays are two weeks long. I allot 7 days to Damion.
c. March Break is 7 days. I allot 3.5 days to Damion.
d. There are 281 days remaining in the year after deduction of summer holidays, Christmas holidays and March Break. Damion will have these children in his care 10 of every 28 nights which amounts to approximately 100 days.
e. The total of days in his care is 141.5 out of 365. That amounts to 38.76 %.
f. Even if I allow for an extra day at Christmas or during March Break, he does not reach 40%.
[110] With respect to Ashton, the Partial Minutes of Settlement do not fix days/nights when Ashton will be in his father’s care. It contemplates a sharing of time that will vary from month to month over the course of the year with no minimum time with either parent. There may be months where he will spend more than 60% with one parent.
[111] It is impossible to conclusively fix the child support payable in relation to Ashton when the number of days with either parent is unknown and potentially variable. In these circumstances, it makes sense to assume that Ashton will spend at least 40% of his time in Damion’s care based on Ashton’s expressed plan to spend every Tuesday and Wednesday and every other weekend with Damion; that amounts to more than 40% of his time.
[112] Thus, on a go forward basis in accordance with the Partial Minutes of Settlement, Damion will have only Ashton in his care more than 40% of the time over the course of a year. If that expectation is not met, either party may seek to review child support paid in the previous calendar year by motion brought in the first three months of the next year.
[113] I turn now to consideration of the factors in s. 9 (a)-(c).
[114] The Table amount payable by Damion for four children based on his estimated 2018 income per his Financial Statement of $45,588 ($3,799 x 12 months) is $1,086/month. The Table amount payable by Janet for one child based on her estimated 2018 income per her Financial Statement of $90,864 ($7,572 x 12 months) is $839/month. The difference is $247/month payable by Damion to Janet.
[115] Both parties filed Children’s Budgets which are found in the Trial Record and Supplementary Trial Record. Damion’s budget is premised on Ashton residing with him approximately 50% of the time and the other children residing with him at least 40% of the time. The latter assumption is flawed.
[116] In addition, I find that:
a. Damion is too aggressive in the percentages he attributes to the children for food and household supplies;
b. He states that his “board” is $450 which is at odds with his Financial Statement;
c. He attributes 30% of his vehicle expenses to the children which strikes me as too high given his commute to work in Goderich;
d. His health care insurance will reduce when he changes to single coverage. Even so, 80% is again too aggressive an attribution to the children; and
e. His pet care expenses are high and attribution to the children is questionable.
In short, I find Damion’s budget to be unreliable and in need of significant adjustment for the reasons set out above.
[117] Janet’s budget suffers from similar concerns. She includes items that are arguably hers alone and/or attributes percentages to the children that strike me as too high.
[118] As indicated above, Janet’s monthly expenses per her Financial Statements have outpaced her income despite significant increases in income over the past two years. There is no rationale provided for these increases in expenses. Moreover, the Statements contain no reduction for the expenses to be shared with Mr. Regier. Her accommodation costs include rent and utility costs which are doubtful in my mind.
[119] In Kerr v. Erland, 2014 ONSC 3555, Blishen J. summarized the approach applicable under s. 9 and at para. 116 wrote:
Section 9 recognizes the increase in costs assumed by one parent does not necessarily lead to a decrease in costs assumed by the other. Section 9(c) requires the court to consider principles of fairness and, importantly, the standard of living of the children in each household along with the ability of each parent to absorb the costs required to maintain the appropriate standard of living in the circumstances.
[120] At first blush, both parents continue to live pay cheque to pay cheque with shortfalls. I find the evidence of Janet’s expenses to be dubious and of limited use. Damion’s evidence is somewhat better for reliability purposes but is not entirely cogent. What is clear, however, is that as between the two parents, Janet is able to provide a measurably higher standard of living for the children, and she is better able to bear the costs associated with a shared custody arrangement.
[121] Since May 2017, they have used a straight set-off of child support using the Table amounts payable by each. That has worked albeit imperfectly for each. It has lessened the financial burden on Damion for child support which has permitted him to do more for and with the children. He remains in a situation where there is a distinct difference in standard of living but that may be best addressed through spousal support. Absent more reliable evidence, the set-off amounts seem to me to be an appropriate end point for the analysis under s. 9 of the Guidelines.
b. Section 10 Guidelines
[122] In addition to s. 9, Damion relies on s. 10 of the Guidelines; specifically, he asserts a claim of undue hardship if he is required to pay the full Table amount for child support.
[123] Section 10 states:
10 (1) On either spouse’s application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.
(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:
(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;
(b) the spouse has unusually high expenses in relation to exercising access to a child;
(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;
(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is
(i) under the age of majority, or
(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life;
(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.
(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse.
(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in Schedule II.
(5) Where the court awards a different amount of child support under subsection (1), it may specify, in the child support order, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time.
(6) Where the court makes a child support order in a different amount under this section, it must record its reasons for doing so.
[124] Undue hardship is a high threshold. The hardship must be exceptional, excessive and disproportionate. The burden of proof rests on the party asserting undue hardship to establish same by cogent evidence: Morrone v. Morrone, [2007] O.J. No. 5341 (S.C.J.).
[125] In Matthews v. Matthews, 2001 28118 (ON SC), [2001] O.J. No. 876 (S.C.J.), the court set out the following three step analytical process:
The court must first determine whether an order in accordance with the Tables or otherwise under the Guidelines would cause the applicant to suffer undue hardship;
If the answer is yes, the court must then consider the standards of living in both households; and
If the applicant succeeds on the first two questions, the final step is determination of the appropriate amount of child support payable. This requires consideration of the needs and means of both parties.
[126] I am not satisfied on the evidence that Damion has discharged his burden to show undue hardship either for him or the children. I note that:
a. His income has risen steadily since 2016;
b. His income will be higher if spousal support is awarded;
c. He can reduce his employee benefit expense by reducing his coverage at the next available window;
d. The monthly child support payable by him is offset considerably by the child support payable by Janet to him for Ashton;
e. The evidence shows that notwithstanding the sharing of child support for Ashton, Janet pays the lion’s share of Ashton’s costs;
f. He is able to make contributions to s. 7 expenses and does buy some items for the children;
g. His accommodation and food expenses are fixed and shared with his mother and brother;
h. He has meaningful, quality time with the children despite some financial constraints;
i. His children enjoy spending time with his mother and brother and have undoubtedly formed a closer bond by the access arrangements;
j. By his own evidence, the arrangements in his mother’s home are less than ideal but they make it work; and
k. While there is some hardship, it does not rise to the level of excessive, exceptional or disproportionate.
[127] Therefore, it is unnecessary to address steps two and three from Matthews.
Retroactive Child Support
[128] This issue relates solely whether Ashton spent 40% or more of his time in Damion’s care between May and October 2018.
[129] I find that Ashton was in Damion’s care more than 40% only in July, August and October, and in Damion’s care less than 40% in May, June and September. I arrive at that finding by calculating the number of nights that Ashton was with his father in each month. Where Ashton was supposed to be in Damion’s care but was not because he was camping or visiting Uncle Jerry or attending a hockey tournament out of town, I have counted that night as Damion’s. I also credited Damion with Father’s Day. I did not credit Damion for the ball hockey nights where he stayed overnight with Janet.
[130] Therefore, in May, June and September, Damion underpaid child support. He should have paid $1,086 in each of those months and paid only $119 biweekly. The aggregate number of days of those three months is 91 which is 13 weeks. That comprises 6.5 biweekly payments. I calculate the shortfall to be $2,484.50 ($1,086 x 3 months less $119 x 6.5).
[131] Therefore, Damion owes child support of $2,484.50 for 2018. I will address child support payable commencing January 1, 2019 below.
[132] I turn now to spousal support.
Spousal Support
[133] A court may make a final or interim order for spousal support in an amount it considers reasonable: s. 15.2(1) and (2) of the Divorce Act. In doing so, the court must 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 arrangements relating to support of either spouse: Divorce Act, s. 15.2(4).
[134] Misconduct of a spouse in relation to the marriage is irrelevant to spousal support: Divorce Act, s. 15.2(5).
[135] In Thompson v. Thompson, 2013 ONSC 5500, Madam Justice Chappel provides the following very useful summary of the principles that apply to a spousal support claim at paras. 46 – 52, 54 – 59:
[46] The court’s duty pursuant to section 15.2(4) of the Act to consider the parties’ “condition, means, needs or other circumstances” in carrying out the spousal support analysis is very broad and involves the exercise of a considerable amount of discretion. However, not every circumstance of the spouses will be relevant to the support analysis. The factors referred to must be interpreted in the context of the purpose of the spousal support provisions of the Act as articulated by the Supreme Court of Canada in Moge v. Moge, 1992 25 (SCC), [1992] S.C.J. No. 107, and are circumscribed by that purpose. As L’Heureux-Dube J. emphasized in Moge, although marriage and the family provide an emotional and economic support system for family members, spousal support in the context of divorce “is not about the emotional and social benefits of marriage. Rather, the purpose of spousal support is to relieve economic hardship that results from the marriage or its breakdown,” and the focus of the analysis is therefore “the effect of the marriage in either impairing or improving each party’s economic prospects.” [para. 43] The condition, means, needs and other circumstances relied upon for the purposes of the support analysis must be relevant in some way to this purpose and focus.
[47] The “condition” of a spouse includes such factors as their age, health, needs, obligations, dependents and their station in life (Metz v. Metz, 2004 ABQB 528, [2004] A.J. No. 925 (Alta Q.B.); supplementary reasons, [2004] A.J. No. 1558 (Alta. Q.B.); Bennett v. Bennett, 2005 ABQB 984, [2005] A.J. No. 1824 (Alta. Q.B.); Bockhold v. Bockhold, 2010 BCSC 214, [2010] B.C.J. No. 283 (B.C.S.C.)). A spouse’s “means” encompasses all financial resources, capital assets, income from employment and any other source from which the spouse derives, gains or benefits (Strang v. Strang, 1992 55 (SCC), [1992] S.C.J. No. 55 (S.C.C.); Leskun v. Leskun, 2006 SCC 25, [2006] S.C.J. No. 25 (S.C.C.)). The assessment of the “needs” of a spouse should take into consideration the accustomed lifestyle of the spouse, subject to ability to pay. As the Ontario Court of Appeal stated in Rioux v. Rioux, 2009 ONCA 569, 2009 CarswellOnt 4077, para 42, “self-sufficiency is a relative concept, it relates to achieving a reasonable standard of living having regard to the lifestyle the couple enjoyed during their marriage”. In considering the extent of a spouse’s need from this perspective, the court should take into account the joint income which the parties anticipated they would be able to enjoy as of the time of their separation. …
[48] Section 15.2(6) of the Act sets out the objectives of a spousal support order as follows:
15.2(6) Objectives of 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) 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) insofar as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[49] The Supreme Court of Canada has held that all of the statutory objectives set out in section 15.2(6) of the Act must be considered, since no single objective is paramount (Bracklow v. Bracklow, 1999 715 (SCC), [1999] S.C.J. No. 14; Moge). However, trial judges have a significant amount of discretion to determine the weight that should be placed on each objective, based on the particular circumstances of the parties (Miglin v. Miglin, 2003 SCC 24, [2003] S.C.J. No. 21 (S.C.C.). With respect to the objective of promoting self-sufficiency, set out in section 15.2(6)(d) of the Act, the Supreme Court of Canada commented in general terms on the extent of a former spouse’s obligation to work towards self-sufficiency in Moge v. Moge, Leskun v. Leskun and L.M.P. v. L.S.(2011 SCC 64). It noted that although one of the objectives of the spousal support provisions of the Act is to promote the economic self-sufficiency of the spouse within a reasonable time, the Act stipulates that this goal only applies “in so far as practicable”. The Court held that there is no presumed duty on former spouses to achieve financial independence, and the extent to which they are expected to do so depends on the circumstances of the parties and the dynamics of the marital relationship in each particular case. It concluded that the wording of sections 15.2(6)(d) and 17(7)(d) (relating to variation proceedings) reflects a recognition that self-sufficiency may not be possible or practicable in some circumstances.
[50] In considering the objective of self-sufficiency, the court must recognize that this concept is a relative one which must take into account the parties’ standard of living during the marriage (Rioux, para. 42). The Ontario Court of Appeal emphasized in Fisher v. Fisher (2008 ONCA 11, 2008 CarswellOnt 43) and Allaire v. Allaire (2003 CarswellOnt 1002) that self-sufficiency is not necessarily established when a former spouse is able to meet their basic needs; rather, it refers to a spouse’s ability to maintain a reasonable standard of living taking into account the lifestyle which the parties enjoyed during their relationship. Where one spouse has suffered economic disadvantage as a result of the marriage or its breakdown, the court must consider whether the other party can financially assist them so that the spouse can enjoy a lifestyle closer to that which they enjoyed during the marriage. As the Court stated in Fisher v. Fisher, self-sufficiency must be assessed “in relation to the economic partnership the parties enjoyed and could sustain during cohabitation, and that they can reasonably anticipate after separation.” (para. 53)
[51] The extent to which the court will consider the accustomed standard of living during the marriage in setting the benchmark for self-sufficiency post-separation will depend on the particulars of the marital relationship. L’Heureux-Dube, J. made this point in Moge v. Moge, where she stated that “the longer the relationship and the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution.(para. 84)
[52] The statutory objectives and factors referred to above inform the issues of entitlement, quantum and duration of spousal support. The issue of entitlement is the preliminary issue to determine in any spousal support claim.
- General Principles Respecting Entitlement
i. Overview of the Grounds For Entitlement
[54] The Supreme Court of Canada articulated the fundamental principles respecting entitlement to spousal support in the cases of Moge v. Moge and Bracklow v. Bracklow. In Moge v. Moge, the court summarize the overall goal of spousal support as being to ensure an equitable sharing of the economic consequences for both parties of the marriage or its breakdown. However, it also emphasized that the entire burden of these consequences should not necessarily fall on the shoulders of one party. The Supreme Court held in both Moge v. Moge and Bracklow v. Bracklow that entitlement to spousal support must be determined in accordance with the terms of the governing legislation, but that the issue should be considered keeping in mind the following three conceptual models upon which entitlement to spousal support may arise: (1) compensatory support, which primarily relates to the first two objectives of the Act; (2) non-compensatory support, which primarily relates to the third and fourth objectives; and (3) contractual support. As the British Columbia Court of Appeal emphasized in Chutter v. Chutter (2008 CarswellBC 2661), the court is not required to apply one conceptual model of entitlement over the other. In many cases, entitlement may be established on more than one ground.
ii. Compensatory Support
[55] The compensatory basis for spousal support entitlement recognizes that upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage. The objective of a compensatory award is to provide some degree of compensation for the sacrifices and contributions which a spouse made during the marriage, for economic losses which they experienced and may continue to experience as a result of the marriage, as well as the benefits which the other spouse has received as a result of the sacrifices and contributions (Moge, paras. 68-70). A compensatory award recognizes that such sacrifices, contributions and benefits conferred often lead to interdependency between the spouses and merger of their economic lives (Cassidy v. McNeil, 2010 ONCA 218, [2010] O.J. No. 1158 (C.A.).
[56] Compensatory support claims arise most typically in situations where one spouse has suffered economic disadvantage and contributed to the other spouse’s income earning potential as a result of assuming primary responsibility for childcare and/or home management obligations. However, a compensatory claim can also be found on other forms of contribution to the other party’s career, such as supporting the family while the other party obtained or upgraded their education (Allaire), selling assets or a business for the benefit of the family unit (Jens v. Jens, 2008 BCCA 392, [2008] B.C.J. No. 1886 (C.A.), or assisting a party in establishing and operating a business that is the source of that party’s income (Chutter).
[57] In considering whether a compensatory claim exists, the court must undertake a broad and expansive analysis of advantages and disadvantages which each party experienced throughout the relationship as a result of the marital union. In some situations, a compensatory claim may be defeated or weakened by the fact that disadvantage suffered by the claimant spouse is offset by disadvantage of a different type experienced by the other spouse (Roseneck v. Gowling (2002), 2002 45128 (ON CA), 35 R.F.L. (5th) 177 (C.A.); additional reasons at 2003 CarswellOnt 159 (C.A.)).
[58] A compensatory claim for spousal support may be established even where the recipient spouse is employed and reasonably self-supporting at the time of the parties separation. This situation can arise where, despite that spouse’s ability to meet their own needs, their financial advancement has been impaired as a result of subordinating their career to that of the other spouse, or from adopting a less lucrative career path in order to accommodate the needs of the family (Cassidy; Allaire).
iii. Non-Compensatory Support
[59] Spousal support entitlement can also arise on a non-compensatory basis, as a result of the needs of a spouse. The Supreme Court of Canada discussed this basis of entitlement in Bracklow v. Bracklow. It emphasized in that case that a spouse may be obliged to pay support based on the other spouse’s economic need alone, even if that need does not arise as a result of the rules adopted or sacrifices made during the marriage. Rowles, J.A. of the British Columbia Court of Appeal summarized the general concepts underlying this basis of entitlement in Chutter v. Chutter as follows:
Non-compensatory support is grounded in the “social obligation model” of marriage, in which marriage is seen as an independent union. It embraces the idea that upon dissolution of a marriage, the primary burden of meeting the needs of the disadvantaged spouse falls on his or her former partner rather than the state (Bracklow, at para. 23). Non-compensatory support aims to narrow the gap between the needs and means of the spouses upon marital breakdown, and as such, it is often referred to as of the “means and needs” approach to spousal support.
[136] Thus, the issues are: entitlement, duration and quantum. If there is no entitlement, it is unnecessary to determine duration and quantum.
a. Entitlement
[137] Damion asserts a claim to spousal support from the date of separation and on an ongoing basis on a compensatory and non-compensatory basis. His position is:
a. He supported Janet while she was in school by paying most of the household expenses;
b. Her student loan was rolled into their mortgage and formed part of the debt carried by them during the marriage and on separation;
c. He cared for the children while she was at work;
d. He provided consistent steady income for them and their family when she was on maternity leaves;
e. His income and assistance in child care permitted her to expand her nursing skills through courses and jobs requiring some travel which, in turn, has led her to her current employment position;
f. He has experienced financial hardship from the breakdown of the marriage; and
g. He has a need for spousal support which she has the ability to pay.
[138] Janet’s position is:
a. Damion suffered no economic disadvantage to his career during the marriage or on breakdown of same;
b. As for “need”, he lived virtually rent free in Grand Bend with his mother for a year immediately after separation;
c. Janet has borne most of the weight of the children’s expenses post separation; and
d. His expenses living with his mother are modest.
[139] Dealing first with the compensatory claim for spousal support, I find that:
a. Damion did contribute to Janet’s career development. He provided a place to live when she was in school but home for weekends. She worked during those weekends at BWRH where she was later employed;
b. He contributed financially to her schooling through the assumption of debt that was merged into their home mortgage;
c. He shared in the care of the children of the children and arranged his work hours to facilitate Janet’s work hours;
d. Janet was able to change jobs, take upgrading courses and advance her career in large part because Damion was there to care for the children; and
e. He did not, however, sacrifice his career or advancement to advance Janet’s career. He did not go back to school in large measure because he did not know what he wanted to study or become. There is no evidence that he passed up career advancements for Janet or the children.
[140] This is not a case where one spouse subordinated his or her career which allowed the other to advance in theirs. I am satisfied, nonetheless, that a claim for compensatory spousal support is made out. Damion financially contributed to Janet’s career and studies, and he supported the family financially and provided assistance to care for the children while Janet worked and studied to improve her skills and career. He did not work shift work for long, in part to be able to care for the children.
[141] As for the non-compensatory claim for spousal support, I find that:
a. At the date of separation, the parties were living pay cheque to pay cheque. They had accumulated considerable debt – more than the equity in their home could cover;
b. Both parties bore significant financial pain on separation through the division and payment of accrued debt;
c. While Damion was forced to rely upon the goodwill and kindness of family, Janet had to sell the matrimonial home and find a new home for her and the children;
d. Janet had all of the children in her primary care for the first year, and three of four since then. She has paid a disproportionate share of expenses for extracurricular activities for the children since separation;
e. A comparison of their 2016 incomes shows that Janet earned roughly $35,000 more than Damion;
f. Janet was the principal earner in the family at the date of separation, although that was not always the case during their cohabitation;
g. Janet was able to afford to buy out Damion’s interest in the trailer they jointly owned;
h. Given his much lower income and debts, Damion suffered more acute economic hardship on marriage breakdown;
i. He continues to earn significantly less than Janet, and with his child support obligations, cannot reasonably afford to acquire a home to live independent of his mother and brother;
j. There is a marked difference in the standard of living that Damion can provide to the children when in his care versus that when in Janet’s care;
k. Damion cannot afford to purchase much in the way of new clothing or gifts for the children;
l. Janet has the means to pay some spousal support and has had such means since January 2018;
m. Janet did not have the means to pay spousal support in 2016 or 2017 as she was still labouring under the debt accrued during the marriage, the costs of establishing a new home, the ongoing expenses for the children, and her household expenses;
n. By 2018, Janet was in a markedly different financial position as evidenced by the plan to share expenses with Mr. Regier, the lease of her home, and her new job with increased pay; and
o. I find that the two most recent Financial Statements by Janet exaggerate her expenses or reflect an unreasonable approach to personal financial management. The most recent statement is misleading in that it fails to reflect Mr. Regier’s contribution to expenses and imports a questionable $1,500/month rent expense.
[142] Whether spousal support is on a compensatory or non-compensatory basis, I find that spousal support should not commence to be payable until January 1, 2018. The parties ended their economic union in February 2016. There were debts owing by each. No one came out of the separation with a clean slate. Janet assumed greater responsibility for the children’s care and expenses. It took a reasonable period of time for her to get her feet under her financially given all the changes and consequences flowing from the marriage breakdown.
b. Duration
[143] The parties cohabited for approximately 14 years. Damion’s counsel provided various DivorceMate calculations in her closing submissions. Those calculations assume 15 years of marriage/cohabitation, not 14. According to the calculations provided, the Spousal Support Advisory Guidelines (“SSAGs”) indicate a duration of 7.5 to 15 years from the date of separation, subject to variation and possibly review.
[144] I find that spousal support is payable by Janet to Damion for a period of nine years effective January 1, 2018. I note that Damion has a high school education and much of his work experience is as a general labourer. Although Damion has applied for other employment in the area that would pay better, he has had no success to date. Given his commitment to the children, it is not reasonable to expect that he would move away to advance his career at this point. By contrast, Janet’s career has advanced significantly. She has the skills, education and work experience to hold a senior care position at BWRH. Damion contributed to her career trajectory.
[145] There is a marked difference in the standard of living between the two households. Damion has been economically disadvantaged by the marriage breakdown. He is in need of spousal support. The increase in spousal support will affect Damion’s s. 7 child support obligations.
[146] Their cohabitation was of intermediate duration. In nine years, the youngest child, Eddie, will be 16 years old. In the circumstances, I find that nine years is a reasonable and appropriate time for Damion to receive spousal support.
c. Quantum of Child and Spousal Support
[147] Attached as Schedule “A” is a DivorceMate calculation for the amount payable by Janet for spousal support for the 2018 calendar year based on the parties’ approximate 2017 employment incomes. That calculation was done using the “with child support formula”.
[148] This calculation produces a range of spousal support: $574/month at the low end, $898/month at the mid-range and $1,220/month at the high end. The net child support payable by Damion based on the Table amounts for one child shared (Ashton) and the remaining children with Janet is $272/month.
[149] As noted in paras. 129-131 above, there were three months in 2018 where Ashton did not spend at least 40% of his time in Damion’s care. He owes Janet $2,484.50 in child support for those months. Damion has been paying $119/biweekly. I do not know whether the payments actually made equal the amount calculated as payable at $272/month. If there is a shortfall, Damion shall pay that shortfall for the remaining nine months of 2018.
[150] With respect to 2018 spousal support payable by Janet, I fix same at $750/month. I am mindful that the mid-range is not the default position nor even the presumptive starting point. In exercising my discretion to fix the spousal support slightly below the mid-point, I have taken into consideration the fact that Janet has overpaid her share of s. 7 extraordinary expenses. She has also paid more of the clothing expenses for Ashton despite the significant off-set to child support for her child support payable to Damion for Ashton’s benefit. Thus, Janet owes Damion $9,000 for spousal support for 2018. That amount is deductible for tax purposes by Janet and taxable in Damion’s hands.
[151] Turning next to ongoing spousal support, I attach as Schedule “B” a further DivorceMate calculation using the “with child support” formula and the estimated 2018 incomes of Janet and Damion per their Financial Statements. I approximated Janet’s employment income at $90,000 and Damion’s at $48,000.
[152] As Schedule “B” shows, the net child support payable by Damion is $300/month assuming Ashton’s residence remains shared and the other children reside with Janet.
[153] As for spousal support, the range is from $544 at the low end to $1,213 at the high end with a mid-point of $875. I fix the monthly spousal support payable by Janet to Damion commencing January 1, 2019 at $875. I have selected the mid-point in order to recognize that Janet will continue to bear a disproportionate financial cost for the children because the child support payable by Damion is low. Although Damion contributed to her career success, that contribution does warrant spousal support at the high end of the range. The monthly payment shall be taxable to Damion as income.
[154] Therefore, commencing January 1, 2019, Janet shall pay to Damion monthly spousal support of $875 based on her employment income of approximately $90,000 and his employment income of approximately $48,000. Damion shall pay child support to Janet for the children in the monthly amount of $1,134 based on his income of $48,000 less an off-set for child support payable by Janet to Damion for the child, Ashton, of $834 based on her income of $90,000. In the result, Damion shall pay Janet $300/month for net child support.
[155] The parties shall share s. 7 expenses in proportion to their incomes. According to Schedule “B”, the proportions will be 57.6% for Janet and 42.4% for Damion.
[156] The parties are at liberty to set-off any amounts owing for equalization, child support arrears and spousal support arrears.
Conclusion
[157] With respect to equalization, counsel will do the necessary calculation of the equalization of net family property having regard to the values I have found above. If there are any issues remaining, counsel may write to alert me to same and to seek direction.
[158] Spousal support is payable by Janet to Damion commencing January 1, 2018 on a compensatory and non-compensatory basis. Spousal support owing for the 2018 calendar year is $9,000 ($750 x 12 months). If Janet is unable to pay the full amount of any arrears owing, submissions may be made to me for an appropriate monthly payment amount.
[159] Ongoing spousal support payable by Janet to Damion is fixed at $875/month commencing January 1, 2019 for a period of nine years.
[160] Child support is payable by Damion to Janet for 2018 for the months of May, June and September in the amount of $2,484.50. As for the balance of 2018, if he has underpaid based on monthly child support payable of $272/month, the arrears shall be added to the amount payable.
[161] Commencing January 1, 2019, Damion will pay child support to Janet for the children net of the set-off for child support payable by Janet for Ashton in the amount of $300/month. The amount of child support is to be adjusted annually based on the previous year’s incomes for both parties. The parties shall provide their tax returns and notices of assessment to the other each year not later than June 15th for so long as child support or spousal support is payable.
[162] Commencing January 1, 2019, the parties shall share s.7 expenses in proportion to their incomes after adjustment for spousal support paid.
[163] The parties are at liberty to set-off amounts found owing above for equalization, spousal support and child support arrears as they see fit.
[164] Either party may bring a motion for divorce without costs.
[165] If the parties cannot agree on costs, they may make written submissions within 21 days not exceeding three pages.
Justice R. Raikes
Released: January 23, 2019
COURT FILE NO.: 50-2017
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Damion Willert
Applicant
– and –
Janet Carolyn Willert
Respondent
REASONS FOR JUDGMENT
Raikes, J.
Released: January 23, 2019