COURT FILE NO.: FS-19-0312-00
DATE: 2021-09-23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Fay Audrey Smith
Self Represented, for the Applicant
Applicant
- and -
Paul Jeffrey Smith
Mr. B. Smith, for the Respondent
Respondent
HEARD: August 30, 31, September 1, 2, 2021, via Zoom at Thunder Bay, Ontario
Mr. Justice F. B. Fitzpatrick
Trial Judgment
[1] This was a trial arising from an application under the Divorce Act and the Family Law Act. The applicant Fay Smith (“Fay”) represented herself at this trial. Her decision to self-represent was canvassed at earlier trial management conferences. Fay was not happy with her prior representation and was determined to go forward as a self-represented litigant. Prior to the hearing, Fay was provided with materials from the CJC and the Superior Court as guides to assist her in this trial.
[2] Fay asks for the following orders:
-a divorce
-an equalization of net family property
-spousal support
-damages for common assault.
[3] The respondent Paul Smith (“Paul”) agrees a divorce judgment should issue. Paul acknowledges he owes Fay an equalization payment. The amount is in dispute. Paul acknowledges Fay is entitled to an order for periodic spousal support that he has the ability to pay. The quantum, retroactivity and term of an ongoing order for support are in dispute.
[4] Paul denies that he assaulted Fay at any time.
[5] The parties agreed to certain facts. The agreed statement of facts was made a lettered exhibit at trial and read into the record. By way of background and to understand the decision in this case I set out those agreed facts now.
[6] Fay was born April 29, 1963 and was 54 years old on the date of separation. Paul was born May 25, 1964 and was 53 years old on the date of separation. The parties met on December 8, 1995 while Paul was attending his intermediate trade school in Toronto. The parties started to cohabit approximately May 1997.
[7] The parties married May 7, 1999. The parties separated on April 19, 2018. There are no children of the relationship.
[8] On the date of separation, the parties lived in the home located at 265 Blake Scoble Road, Neebing, Ontario (the “Matrimonial Home”). Both parties continued to live in the Matrimonial Home until December 20, 2018.
[9] Fay lived in the Matrimonial Home until May 17, 2019. Paul moved back into the Matrimonial Home on May 17, 2019.
[10] Fay had a successful career in the electronics field in the Mississauga area when she met Paul. Fay made nearly twice the wage Paul did in 1995. Paul and Fay both discussed that Fay would not be able to gain employment in her field when relocating to Thunder Bay due to lack of job availability in her field. Fay has not worked since she was involved in a serious motor vehicle accident in November of 2007.
[11] Fay developed a rare neurological disorder called renial sympathetic distress, following shoulder surgery required as a result of this accident. Fay was not employed on the date of separation. Fay has not been employed or sought employment since the date of separation. Fay is not receiving CPP disability benefits. Fay has not applied for CPP disability benefits.
[12] Paul is employed by Vipond Inc. as a licensed sprinkler installer through the U.A. Local 853 Sprinkler Fitters Ontario. Paul’s income is irregular and often works reduced hours or is laid off for periods of time.
[13] Paul’s line 150 income was as follows:
a. $52,655 in 2010;
b. $56,420 in 2011;
c. $57,007 in 2012;
d. $61,950 in 2013;
e. $60,481 in 2014;
f. $40,947 in 2015;
g. $57,893 in 2016;
h. $118,794 in 2017;
i. $82,301 in 2018;
j. $84,234 in 2019;
k. $67,355 in 2020.
[14] Paul paid union dues as follows:
a. $1,061.05 in 2018;
b. $432.00 in 2019;
c. $406.56 in 2020.
[15] The Matrimonial Home was sold on June 29, 2020. Mr. Randall Johns, the parties’ real estate lawyer, had sale proceeds of the home of $90,959.58 as of June 29, 2020. On March 18, 2021 and pursuant to the Order dated March 16, 2021, Fay received payment of $15,600 from the sale proceeds of the matrimonial home. The payment of $15,600 consisted of $10,000 from Fay’s share and $5,600 from the Paul’s share of the sale proceeds of the home. The payment of $5,600 from Paul’s share was for the payment of the spousal support from February 1 to May 1, 2021 inclusive.
[16] Paul is a member of the Sprinkler Industry Pension Plan. It is administered by a company called Global Benefits. The Statement of Family Law Value of the Sprinkler Industry Pension Plan based on the date of marriage and date of separation is $222,127.01. The income tax payable on the Statement of Family Law Value of the Sprinkler Industry Pension Plan is 10.9%. The after-tax value of Paul’s pension is $197,915.17. If a portion of Paul’s pension is transferred to Fay, it shall be grossed up by 5.2%.
[17] Paul was the registered owner of a 2009 Mitsubishi Endeavour on the date of separation. Fay is the primary owner of the 2009 Mitsubishi Endeavour. Fay and Paul were joint owners of the 2009 Mitsubishi Endeavour on the date of separation. Fay and Paul shared possession of the 2009 Mitsubishi Endeavour until November 2018. Fay has had exclusive use of the 2009 Mitsubishi Endeavour after December 20, 2018. The 2009 Mitsubishi Endeavour was valued at $5,000 on the date of separation. The annual auto insurance premium was $963 for Fay’s insurance for the 2009 Mitsubishi Endeavour for the period 12:01 a.m. November 1, 2019 to 12:01 a.m. November 1, 2020. The annual auto insurance premium was $1,103 for Fay’s insurance for the 2009 Mitsubishi Endeavour for the period 12:01 a.m. November 1, 2020 to 12:01 a.m. November 1, 2021. Paul has paid the Fay’s insurance for the 2009 Mitsubishi Endeavour since the date of separation.
[18] The parties had a joint chequing account (#5109160) at RBC with a balance of $9,243.66 on the date of separation. The parties had a joint savings account at RBC with a balance of $160.98 on the date of separation.
The Issues
Divorce
[19] The parties have lived separate and apart for more than one year and there is no reasonable prospect of reconciliation. A divorce judgment is to issue effective thirty-one days from the release of these reasons for decision.
Equalization of net family property
[20] The parties spent a great deal of time during this trial focusing on both irrelevant and trivial issues regarding their property. There was a great deal of evidence given about the conduct of the parties during the marriage particularly about how they dealt with their property. This evidence was irrelevant save the evidence related to the alleged assaults which I will deal with later in the judgement.
[21] It is clear from the evidence these parties were having long term and ongoing financial struggles throughout their marriage. Their marriage breakdown has exacerbated these problems. From the evidence, I find both parties have seen a reduction in their standard of living. This will be addressed again in the section dealing with spousal support.
[22] There was no issue in this trial that Paul owes Fay an equalization payment arising from the breakdown of the marriage. The values of the two major assets belonging to the parties, Paul’s pension and the jointly owned matrimonial home are not in dispute. The parties spent a great deal of time in their evidence dealing with what I view as the relatively financially trivial issue of the division of contents of the matrimonial home and the value of their pre-marriage assets.
[23] The evidence of the parties lacked the independent corroboration that the Court ideally would like to have when valuing property. With the exception of the value of Paul’s pension, and the value of the jointly owned matrimonial home which was agreed to following an arms-length market sale in June 2020, the documentary evidence on all the disputed values discussed at this trial was deficient, unhelpful and largely non-existent. These deficiencies left the Court in the position of making a “best guess” on value based on oral evidence. However, I am confident in the ultimate result as the values of the main assets, the house and the pension where backed by reliable independent evidence.
Pre-marriage assets.
[24] Paul claims a deduction of $8,000 for a 1979 Corvette he owned on the date of marriage. He bought it prior to marriage. He claims he had an appraisal at time of purchase for $9,200. He did not provide any written evidence of this value. I find the value of the Corvette was worth $8,000 as of the date of marriage.
[25] Fay claimed a pre marriage deduction of $25,000 for a 1995 Mercury Cougar that she purchased before the parties were married. She admitted in evidence she sold the car before the parties were married. Therefore, I find she is not entitled to a deduction for the value of this asset.
[26] Fay claims a deduction of $30,000 for household items she brought into the marriage. She did not provide a specific list of these items nor any valuations of them at the date of marriage. Nevertheless, she did provide photographic evidence of furniture she owned prior to marriage. I rely on these photos and her oral evidence of what she says she paid for these items as a starting point to determine value. In my view, once furniture gets used by a person or family, regardless of what one paid for it, its use greatly reduces its market value. This is because furniture, particularly larger items, are unique items for people. The value of these types of items depends on colour, shape, size and the use to which they will be put. Also, generally the items are widely and easily accessible new at relatively reasonable prices. Therefore, I consider a common sense “yard sale value” as an appropriate measure of these kind of claims for pre marriage assets especially when they are not independently verified in any way. Accordingly, I find Fay brought household items into the marriage in a value of $7,000 and is entitled to a pre-marriage deduction in this amount.
[27] Fay claimed a deduction of $2,000 for a doll and music box collection which she had on the date of marriage. She sold these items at yards sales towards the end of the relationship. She testified she estimates she received $500 total for her various dolls, some of which she acquired post-marriage.
[28] Based on her evidence, I find she is entitled to a pre-marriage deduction for her doll and music box collection in the amount of $1,000.
[29] Fay worked for a company called Murata prior to marriage. She was terminated from this job before she met Paul. She had a pension which I understand was rolled into some form of locked-in vehicle upon termination. Fay testified she had to cash in the pension during the marriage. She did so by claiming financial hardship. She testified she cashed in the pension for $7,109 in 2004. This was within 5 years of the date of marriage.
[30] Fay did not provide any other evidence of the value of the pension. I expect the cash value of the Murata pension in 2004 was a minimal basic obligation amount that whatever financial company was holding the instrument could calculate. It was cashed by Fay under less than ideal financial circumstances. I assume a proper valuation at the date of marriage would approximate the cash-in value five years later. As imperfect as this type of approach is, it is the best I can do on the evidence presented. Fay did not indicate if the amount she received when she cashed in the pension was net of tax. I am prepared to assume that it was. In my view, Fay is entitled to a pre-marriage deduction for the Murata pension of $7,000 net of notional tax.
[31] Fay also claimed a deduction for an Avon pension which she cashed in 2005. Fay got the Avon job after she moved to Thunder Bay. She did not provide any evidence of value. I am of the view the evidence indicated the pension was acquired post marriage. Fay is not entitled to a deduction for the Avon pension.
[32] To summarize Paul is entitled to a pre marriage asset deduction of $8,000 and Fay is entitled to a pre marriage asset deduction of $15,000.
Other claims for deductions
[33] Fay also claims deductions for various amounts she paid for loans from Paul’s family during the marriage. Paul acknowledges she paid these loans. Both parties testified they needed the loans to assist with their ongoing financial hardship. The total Fay claims for three loans is $22,800. $17,800 was for two loans from Paul’s mother Ann ($10,000 and $7,800). The other loan was from Paul’s sister Diane for $5,000. The loan payment to Diane and the $7,800 payment to Ann were made in November 2009. The $10,000 payment of Ann was made in May 2012. These amounts could not be proven to have been traceable to other exempt proceeds. They were transactions made during marriage. They were done well before separation. In my view, they simply confirmed the ultimate submission of Paul’s counsel that these parties were living beyond their means throughout their relationship.
[34] Based on the evidence I find that the loans and the repayment of same were made for the benefit of both parties. They do not represent a debt or liability that was incurred recklessly or in bad faith. The debts did not exist at the time of separation or at a time in reasonable proximity to the separation. Fay is accordingly not entitled to deduct these amounts from her net family property at date of separation.
[35] Fay was in a single car accident on November 21, 2007. She testified the accident caused her long-term health issues and damage to her neck and hands as well as developing renial sympathetic distress after a shoulder surgery related to the accident. She settled with her accident benefits provider in November 2009 for $52,000. She did not commence a tort claim. She claims a corresponding deduction from her net family property claiming this amount is excluded property within the meaning of section 4(1)(2) 3 of the Family Law Act.
[36] Fay testified that she used the proceeds to buy a rental property. This property was sold well before separation and no evidence was given proving a tracing of these funds to an asset that existed on the date of separation. Fay did not otherwise prove these amounts could be traced to any assets that existed as at the date of separation. In my view, this lack of evidence means Fay cannot claim a deduction for these settlement funds from her net family property at the date of separation.
[37] The parties agreed the mortgage on the matrimonial home at the date of sale was $303,537.95. It will be divided evenly as a deduction from the respective parties’ net family property.
Other property issues
[38] The parties jointly owned a 2009 Mitsubishi car at the date of separation. It was driven by Fay. Payment of the ongoing insurance has been an issue in the pretrial motions in this matter. Fay claimed the value exclusively on her financial statement. In my view the value should be divided evenly between the parties.
[39] The parties had an RBC joint account at the date of separation. The statement of account for the period April 1, 2018 through March 28, 2019 was filed by way of two exhibits at trial. A review of the statements indicates the parties were more often, than not in an overdraft position. However, this was not the case on the date of separation April 19 2018. On that date the balance in the account was $9,243.66. Fay sought to value this account at negative $1,778.43 on her side of the net family property ledger.
[40] I find both parties shared the asset at date of separation. The sum of $4,621.83 will be added to both their net family properties in coming to a determination of the equalization payment owed by Paul to Fay.
[41] The parties also had a small account that had a balance of $160.98 at date of separation. This amount will added evenly between both net family properties.
[42] Paul had a credit card that was used by both parties. Fay did not testify that she was in anyway responsible for paying off the amounts on the card despite using it for her own purposes post separation. The balance owning at the date of separation was $4,350. On the basis that Paul paid off the credit card debt post separation, I find he is entitled to deduct this amount from his net family property.
[43] The parties spent a good deal of time dealing with what existed or did not exist by way of household items at the date of separation. Both parties had exclusive possession of the home post separation, with Paul having the lion’s share of time as well as being there when the property sold. Neither party provided valuations of the household items on the date of separation. Neither party provided detailed particulars of what exactly each other took from the home. In my view, none of the evidence provided by either of the main parties did anything other than prove the household assets were divided evenly in the post separation period. I repeat my comments about “yard sale values” for household items.
[44] For net family property calculation purposes, I attribute a value of $5,000 of household contents to both the parties.
[45] I also did not allow Fay to introduce evidence of two written separation agreements that she alleges were entered into by the parties. As Fay did not make an express claim for enforcement of either of these agreements, I did not allow them to be entered into evidence during her evidence in chief. Paul testified he did not agree to both alleged agreements. In my view, during her evidence Fay sought to “cherry pick” portions that she says she agreed to without proposing the entire agreement be accepted. This was particularly with respect to the disposition of the household contents.
[46] Also, as there were two agreements, by definition, the first that came in time would have been expressly repudiated by Fay as she tendered a second agreement. The agreements were not witnessed by third parties. In my view, they were not relevant to the determination of the issues of the division of property between the parties.
NFP calculation
[47] Accordingly, based on the above findings, I find the net family properties of the two parties at the date of separation consisted of the following:
Fay Paul
Matrimonial Home $217,500.00 $217,500.00
Pension $197,915.00
Household contents $5,000.00 $5,000.00
Mitsubishi car $2,500.00 $2,500.00
RBC account $4,621.83 $4,621.83
RBC account $80.49 $80.49
Deductions
Mortgage $151,768.97 $151,768.97
Credit Card $4,350.00
Pre-Marriage Assets
Corvette $8,000.00
House contents $7,000.00
Doll collection $1,000.00
Pension $7,000.00 ________
NFP $62,852.86 $267,767.86
Paul pays Fay $100,282.50
Equalization payment
[48] The proceeds of sale less all appropriate deductions for payment of the mortgage, taxes, solicitor’s fees and commission are presently in a neutral lawyer’s trust account. Counsel for Paul advised that as the date of the conclusion of trial the amount is $75,359.58.
[49] There has been an interim distribution of the proceeds as reflected in the agreed facts. An equal distribution of the remaining proceeds taking in to account the previous distribution would see Fay receiving $30,721.55 and Paul receiving $44,638.03.
[50] Based on the evidence, Paul does not have the assets on hand to immediately make a cash payment to Fay to satisfy his obligation to equalize the parties’ net family properties. Paul submits the only way this can be achieved is by way of a division of his pension. I accept this submission. I understand there would have to be a tax calculation involved in this method of payment. Accordingly, I direct counsel for Paul to prepare a final order reflecting my findings regarding the equalization payment and reflecting the appropriate tax gross up with regard to the precise amount that is to be transferred to Fay with the Sprinkler Industry Pension Plan to satisfy Paul’s obligation to make the equalization payment to Fay.
[51] I appreciate this may take some time. Also, there will be an issue with respect to costs. Balancing this reality against the needs of the parties, I direct that immediately upon release of these reasons the solicitor holding the proceeds of sale release $20,000 to Fay and $20,000 to Paul. If necessary, a copy of these reasons should be provided to the solicitor if there is any question that a court is directing him to make these payments forthwith. In the context of the costs, I will entertain submissions if the funds remaining with the neutral solicitor will be used to pay costs if appropriate.
Spousal Support
[52] Fay is in need of support and Paul has the ability to pay. The remaining issues to be decided in respect of the issue of spousal support are:
-quantum of ongoing support determined by;
-what is Paul’s income;
-should an income be attributed to Fay as she has remained unemployed since 2007;
retroactive support;
duration of support.
[53] Both parties relied on the Spousal Support Advisory Guidelines. I see no reason not to utilize this tool to assist the Court in determining the appropriate quantum of support in this case. I am considering this issue as a claim for support under the Divorce Act.
Paul’s income
[54] I begin with a consideration of Paul’s income for the purpose of an ongoing order for spousal support. Paul’s income for 2010 to 2020 was agreed by the parties. Paul also receives so called “subsistence payments” as the result of provisions of a collective agreement which apply to his employment as a licenced installer of residential, commercial, and industrial sprinkler systems.
[55] These subsistence payments are non-taxable. They are used to cover lodging and meal expenses when Paul works “out of town”. His employer can assign him to work anywhere from the Manitoba border to White River. If one had to drive this area end to end it would take about ten hours. Fay asserts Paul “pockets” a good proportion of these payments by economizing on meals while he is away on jobs.
[56] Paul also pays union dues which he would be entitled to deduct from any calculation for spousal support.
[57] I am not prepared to include either of these amounts as an addition or a deduction to Paul’s income in any calculation for spousal support. The amounts are work related and not guaranteed in any particular quantum on an annual basis. Paul has to pay union dues. They depend on how much he works. Paul is entitled to use the subsistence payments as he sees fit and I do not agree with Fay’s submissions that the parties regularly personally benefitted from these payments in a materially significant way while they were married. Including these amounts in any calculation would also inject a degree of uncertainty in any future consideration of spousal support if an application to vary becomes necessary. Based on the evidence and the manner in which these parties have litigated this case, I foresee this as a distinct possibility.
[58] Fay seeks a monthly payment of $3,044 based on an annual income for Paul $86,914.
[59] Paul argues his current income for 2021 will be $51,520.08. This is the lowest amount Paul has earned since 2010. His pay stub of August 14, 2021 indicated he had earned $25,754.61 to date. Paul was on unemployment benefits for part of this year, 2021. Paul has earned $10,937.04 to date of trial from EI. If employment earnings continue the same path for the balance of 2021, counsel submits his 2021 income will be $51,520.08.
[60] Paul’s median income for the years 2010 to 2020 was $60,481.00, the amount he earned in 2014. If his income is averaged for 2018 through 2020, the amount is $77,963.33. It is clear that Paul’s projected 2021 income is low on a historic basis.
[61] In the circumstances, for the purposes of calculating an amount of spousal support payable as of October 1, 2021 I find Paul’s income to be $67,355. This is the amount Paul earned in 2020. I fix this on the basis of looking at both Paul’s short term and a long term earnings, taking in to account his evidence that he is slowing down, he is experiencing difficulties on the job given his age and the physical demands of his job and his belief that this will continue to affect his earning ability until he retires.
Income attribution for Fay
[62] Fay has not worked since 2007. She describes herself as an “educated person” but in her evidence made it quite clear she views herself as incapable and unwilling to consider any minimum wage jobs that involves any degree of physical labour. She cites ongoing problems with her neck and hands. I accept her evidence that she is experiencing medical issues that impact her ability to do any jobs that involve significant efforts with her hands. I accept that this would limit her employment opportunities. However, I do not think she is incapable of earning some income. She has demonstrated ingenuity, persistence and focus in navigating a difficult marital breakdown and putting forward her case to this court in a time of uncertainty caused by an unprecedented global pandemic. In my view, these skills can be utilized by her in the future to supplement the income she will receive from ongoing spousal support.
[63] Paul argues that Fay should have applied for Canada Pension Plan disability payments. He argues this would provide her with $12,379.00 per annum. This amount would also reflect a potential part-time wage from a minimum wage job.
[64] I agree that Fay should have some income attributed to her for the purposes of calculating support using the Spousal Support Advisory Guidelines. While it is clear Fay is suffering significant medical issues, she did attempt to have a business after her career with Avon ended. She had a candle business at the time of her accident. Her ability to trade in collectibles such as her dolls and music box in my view indicates she does have the wherewithal to seek some kind of gainful employment which could include an internet based business or some other service based occupation which does not require a significant degree of manual labour. The world is evolving, and people are adapting to change.
[65] Both parties have suffered an economic disaster as the result of their marriage breakdown. Paul is nearing the end of his career. I accept his evidence that his job involves hard physical labour that he finds increasingly difficult to do given his age. Fay has an obligation under the Divorce Act to become self-sufficient in so far as is practicable. It is but one of the goals of a support order under section 15.2 of the Divorce Act. She must accept some degree of economic burden of this breakdown despite all the medical issues that are plaguing her including being recently electrocuted by a pop machine. In my view, it is just and fair to attribute a nominal amount of income to her in the circumstances on a go forward basis.
[66] I agree with Paul’s submissions that this amount will be $12,379 per annum.
[67] Counsel for Paul submitted a Divorcemate calculation for Paul’s 2020 earnings using the $67,355 annual income. However, it included a deduction for union dues of $407 which I am not allowing for reasons stated above. I have recalculated the amount.
[68] I am of the view that the mid-range of the Guidelines is appropriate for this matter. By my calculations using Divorcemate, this level of income means Paul is to pay periodic spousal support commencing on October 1, 2021 in the amount of $1,523.00 per month. A support deduction order will issue.
[69] I am also going to provide for a range of annual incomes for both parties that will trigger the ability of either party to seek a review of ongoing support and claim a material change in circumstances. Paul will have an obligation to disclose his prior years income annually to Fay, starting on July 1, 2022. Fay will only have to disclose her income if she seeks a change in support. For Fay, it will be considered a material change in circumstances if Paul’s income increases beyond $77,000 per annum. For Paul, if Fay earns more than $35,000 per annum, this will be a material change in circumstances allowing Paul to seek a review of ongoing spousal support. Also, if Paul’s annual income drops below $40,000 per-annum he may claim a material change in circumstances has occurred and can seek a review of ongoing support.
[70] In my view, the evidence at this trial indicates both parties have suffered economic disadvantages as the result of the breakdown of this marriage. Previously the parties owned a very nice home. Now both are renting. The degree to which they were living beyond their means was evidenced by the fact that their mortgage increased from the time they bought their home until it was sold. It went from approximately $142,000 to $303,000 at time of separation. It doubled. It appears the couple was using the equity of their home as a bank. Unfortunately, the bank has to get paid at some point. Now it has been paid but the couple does not have any liquid assets upon which they can immediately rely to fund the lifestyle to which they were accustomed.
[71] Paul’s income has dropped since separation. Fay is experiencing significant medical issues which I am sure have been exacerbated by dealing with the stress and uncertainty of having to remove herself from Thunder Bay, where she lived for twenty years and return to southern Ontario. Fay has not worked since 2007. From her evidence she has no intention to look for work in the immediate future.
[72] The parties have been able to relieve themselves of three burdensome lines of credits at the cost of selling their matrimonial home. Paul has a new truck which he obtained post separation. Fay is still driving a 2009 vehicle which requires ongoing repairs as one would expect from a vehicle that is over ten years old. In my view, there did not appear to be significant advantages to either of these parties from living together particularly after Fay was seriously injured in 2007. I did not hear any evidence that would assist in assessing any other basis than what I have set out regarding the quantum of ongoing spousal support.
[73] I also find that in the event Paul retires this fact will give rise to a material change in circumstances which will permit an application to this court to vary the amount of ongoing support.
[74] As the parties cohabited for some nineteen years this order for spousal support will be for an indefinite (unspecified) duration subject to variation and possibly review.
Retroactive Spousal Support
[75] In the circumstances, I am not ordering that this award of spousal support be made retroactive to the date of separation. I say so for the following reasons.
[76] Paul has been subject to a temporary order to pay Fay spousal support since May 1, 2020. The order by Pierce J. dated April 24, 2020 provided Paul pay Fay $1,500 per month commencing May 1, 2020 plus $80 per month for Fay’s car insurance. Fay gave evidence at trial that there were some issues with enforcement of the order by the Family Responsibility Office for which she blames the Thunder Bay courthouse staff. I make no findings in this regard however any problems in enforcement were not Paul’s responsibility.
[77] At trial, there was no evidence that Paul was in arrears of his ongoing responsibility to pay pursuant to the order of Pierce J..
[78] The parties separated April 19, 2018. They continued to live under the same roof until December 2018. Paul was removed from the house by police. Fay lived in the matrimonial home by herself until May 2019. She moved to Trenton, Ontario at that time.
[79] Paul continued to pay all the expenses for the house, except property taxes, from date of separation until May 2019. Fay did not lead any evidence of any expenses she incurred for that period except moving expenses which she paid using the parties joint credit card. As noted previously Paul paid the credit card bills.
[80] From May 2019 to April 2020, Paul made periodic payments in varying amounts. He paid a total of $11,390.00 for this 11-month period. Averaging the payments out over the period yields a payment of $1,035 per month. Paul claims he was unable to claim a tax deduction for these payments. Fay claimed these amounts as income for 2019 tax year. However, Paul continued to pay the mortgage and insurance for the property. He did not pay the property taxes for 2019 and 2020 and these were paid from the proceeds of sale.
[81] There were no adjustments for these various payments in the calculation of the parties’ net family property. In my view, Fay has benefited from these ongoing payments by Paul since separation.
[82] Fay also initiated and successfully prosecuted a small claims court case involving the matrimonial home. She received settlement funds of $4,000 post-separation. She did not share these funds with Paul.
[83] Fay has not provided evidence of significant debt that she has incurred since separation. I appreciate she has had car bills. I did not find the vet bills as particularly persuasive of indicating she has suffered any additional financial hardship that would require a retroactive payment of spousal support.
[84] Given the current financial situation of these parties, and particularly Paul’s apparently low 2021 income, an order for a retroactive payment of spousal support would impose an undue financial burden on him.
[85] Accordingly, I find that there is no basis for any retroactive payments of spousal support by Paul to Fay for the period April 18, 2018 to October 1, 2021.
[86] Paul has not been able to claim his payments for 2019 to date as the result of problems Fay has had in providing him with a receipt. I am directing as part of this order that Fay provide a receipt forthwith for the 2020 spousal support made and for every subsequent year she is in receipt of these payments. She is to provide the receipt on or before February 1 for 2022 and forward.
Claim for Assault
[87] Fay claims damages in the amount of $50,000 for two acts of assaults she claims Paul committed on her.
[88] Fay testified she was assaulted twice by Paul. The first time was in 2003 when she claims he choked her and pushed her up against the fridge in the kitchen. The second time was in May or June 2016, he elbowed her in the back so hard she fell out of bed.
[89] Fay also claims Paul threw a land line phone at her in 2018, but it missed. Paul denies either assault in 2003 or 2016 occurred.
[90] Paul was charged with assault in December 2018. Fay testified she was asking him to sign a separation agreement, terms of which she alleged had been agreed, and when he refused, he appeared so angry that she feared for her life. She called the police. Paul left the house. When he returned, he was arrested and charged with assault contrary to section 266 of the Criminal Code.
[91] Ultimately the Crown withdrew the assault charge. Fay disagrees with the Crown’s decision.
[92] Fay made a claim to the Criminal Injuries Compensation Board. She received an award from the Board. There were no particulars provided of the basis upon which the Board decided to grant her compensation.
[93] Fay filed a heavily redacted summary of what may have been the Crown brief respecting Paul’s assault charge. It did not contain any particulars of the assault that were useful in determining the credibility issue arising from the conflicting evidence as to whether or not the assaults occurred.
[94] Fay did not provide any medical records in respect of any injuries arising from the assaults. She did not particularize the nature of her injuries. A common-sense inference may be drawn as to the horrible experience that must occur while being choked by your spouse or being elbowed in the back while sleeping.
[95] On the balance of probabilities, I find the assault in 2003 did occur. On the balance of probabilities, I find the assault in 2018 did not occur.
[96] I make these findings on the basis of the nature of the alleged assaults. I believe Fay when she says she was choked in 2003. Being choked is hard to forget.
[97] Being elbowed in bed is also not easy to forget, but it can be explained as an accidental hitting or an unfortunate result of another person’s sleep pattern. On the evidence I do not believe the interaction between Paul and Fay rises to the level that would allow me to find a civil assault occurred in 2018.
[98] I find Fay has not proven any significant damages arising from either incident. I appreciate she testified she has been traumatized by the events leading to her separation and thereafter. However, there was not sufficient evidence led for me to make the necessary causal connection between the 2003 incident and the trauma Fay testified she experienced and is experiencing on an ongoing basis.
[99] I fix nominal damages for the 2003 assault in the amount of $500. Paul will pay this amount out of his share of the proceeds of the sale of the matrimonial home.
Other issues
[100] Both parties agreed to final mutual restraining orders. I order that neither party shall communicate directly or indirectly with each other except through counsel. Further neither party shall come within 1000 metres of each other. These mutual restraining orders shall last until further court order.
[101] Fay asks for an order that Paul surrender his passport. I am not prepared to make that order on the basis of the evidence presented at trial.
[102] Fay called three other witnesses at trial. The testimony given by these witnesses did not assist the Court. Their evidence was a simple repetition of evidence already given by Fay. It was “oath helping”.
[103] Counsel for Paul provided a draft order at the close of trial. It obviously requires amendment based on my decision above. I direct counsel for Paul to prepare a draft order for my signature based on the above reasons for decision. It shall be provided electronically to the Court and to Fay within 15 days of the release of these reasons. If Fay has any substantive objections to the language of the terms of the order, noting it is not an opportunity to object to what has been ordered, she shall provide her comments in writing within five business days of receiving this draft order. As Fay has been communicating with the Court by email, she may make her comments by email, but her response shall be in the form of an attachment to the email in Word format limited to two pages at most. If no response is received within the time limits noted above the Court will issue the order once the issue of costs is resolved.
Costs
[104] Both parties shall make written submissions as to costs. Fay shall make a written submission regarding costs of this trial and any interim proceedings within 30 days of the release of these reasons. Paul shall make a written submission regarding costs of this trial and any interim proceedings within 30 days of the release of these reasons. Both parties shall submit their submissions in the form of Word attachments to an email. The submissions shall be no more than two pages in length plus a bill of costs and copies of a relevant offers to settle.
“Original signed by”
Released: September 23, 2021 The Hon. Mr. Justice F. B. Fitzpatrick
COURT FILE NO.: FS-19-0312-00
DATE: 2021-09-23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Fay Audrey Smith
Applicant
- and -
Paul Jeffrey Smith
Respondent
TRIAL JUDGMENT
Fitzpatrick J.
Released: September 23, 2021
/lvp