COURT FILE NO.: FS-16-00016438-0000 DATE: 20240229

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

SILVIA DENISSE SROOR-HERNANDEZ Applicant – and – ORLANDO EFRAIN GUTIERREZ-AGUIRRE Respondent

Counsel: Jason P. Howie and Tristan J. Miller, for the applicant Zane R. Handysides and Samantha Greenspan, for the respondent

HEARD: September 21, 2022; January 17, 18, 19, and March 9, 2023

REASONS FOR JUDGMENT

HOWARD J.

Overview

1The applicant, Silvia Denisse Sroor-Hernandez, was born on February 28, 1971 (“Ms. Sroor” or the “applicant wife”), was 43 years of age as of the date of separation, and was 51 years of age as of the commencement of trial.

2The respondent, Orlando Efrain Gutierrez-Aguirre, was born on May 10, 1970 (“Mr. Gutierrez” or the “respondent husband”), was 44 years of age as of the date of separation, and was 52 years of age as of the commencement of trial.

3The parties were married on July 5, 2000, in Mexico. They separated as of July 31, 2014, but continued to reside in the matrimonial home while living separate and apart until October 1, 2016, when they physically separated as a result of the applicant wife moving out of the home.

4There was no pre-marriage cohabitation between the parties. As such, theirs was a marriage of 14 years and 26 days.

5The parties have one child, Brenda Denisse Gutierrez-Sroor, born of the marriage on October 31, 2005 (“Brenda”). Brenda was born in Ann Arbor, Michigan, was eight years of age when her parents separated, and was 16 years of age as of the commencement of trial.

6Brenda currently resides in the primary care of her father, the respondent.

7The parties were divorced on September 21, 2018.

8Originally, the applicant wife’s proceeding was framed as a claim for an equalization payment and spousal support. The applicant wife has an obligation to pay child support, which she acknowledges. At the opening of trial, counsel for the applicant advised the court that the claim for an equalization payment would not be pursued at trial.

9As such, the main issues in this trial that require judicial determination are the questions of the entitlement, quantum, and duration of spousal support alleged to be payable by the respondent husband to the applicant wife. Further, there is a dispute between the parties as to the appropriate calculation of retroactive support. As well, the respondent husband seeks child support from the applicant wife, together with various ancillary orders.

10The trial of this matter was held in Windsor over about a six-month period, commencing on September 21, 2022, and continuing on January 17, 18, 19, and March 9, 2023. The court heard evidence from only the two primary litigants, being the applicant wife and respondent husband, over four days of evidence at trial. The applicant wife required a Spanish translator for her testimony at trial. Final submissions were delivered by counsel on the fifth day of trial. Both counsel filed comprehensive written submission briefs in support of their closing argument, which were of great assistance to the court.

Factual Background

11I do not propose to recount or summarize the entirety of the evidence given by the two witnesses at trial in any great detail here. The testimony of the witnesses at trial was reviewed and summarized at considerable length in the final written submissions of each of the parties. My review of the evidence at trial is limited to those facts that are significant to the central issues or that provide context necessary to appreciate and determine the relevant issues. As such, while I will highlight some of the salient features of the factual background here, I will also deal with some of the more specific relevant evidence in the course of my analysis of the issues below.

12Ms. Sroor and Mr. Gutierrez met in or about 1996, were engaged in 1998, and were married in Mexico City (a Civil Law regime) on July 5, 2000, having first met in or about 1996. They both received their secondary and post-secondary education in Mexico.

13In particular, the evidence of the applicant wife was that she attended the Technologic University of Mexico for a period of five years, where she was pursuing a computer science program, which included both hardware and software. She did not complete her education until the age of 26 years as she was paying for her own education and could not afford to attend each semester consecutively. She graduated with a bachelor’s degree in computer science. From 1997 to 1998, she did post-graduate work in quality assurance and productivity.

14In 1997, Mr. Gutierrez commenced employment with Delphi Automotive (“Delphi”).

15It is common ground that, during the period of their engagement (1998-2000), the couple had discussions about their plans for the future. Mr. Gutierrez was aware of the possibility of obtaining, within Delphi, three-year employment placements in Michigan, which he perceived as a great opportunity to improve their lives. Ms. Sroor agreed. I find that the couple discussed, and agreed upon, plans to move to Michigan, when an employment position for Mr. Gutierrez became available there. However, the couple’s ultimate goal was to move to Canada. This was something that, I find, was discussed during the couple’s engagement and agreed upon.

16While Ms. Sroor was employed in different computer-related positions in the few years leading up to the parties’ marriage in July 2000, Ms. Sroor was not employed as of the date of marriage.

17As of the date of marriage, Mr. Gutierrez continued to be employed with Delphi.

18In October 2002, two years into the marriage, the parties moved to Canton, Michigan, because Mr. Gutierrez obtained a three-year placement there. Prior to their departure, Ms. Sroor received, for what she described as a very short duration, some English language lessons with a private tutor.

19It is common ground that Mr. Gutierrez obtained an “L1” visa in order to work in Michigan. They also agree that Ms. Sroor obtained an “L2” visa. However, they disagree as to whether her visa permitted her to work in Michigan. The evidence of the applicant wife was that she understood that she was not permitted to work for at least two years. The evidence of the respondent husband was to the contrary. He understood that her L2 visa permitted Ms. Sroor to work. No expert evidence on the legal status of the L2 visa was tendered on behalf of either party at trial.

20The parties resided in Canton, Michigan, for some five years. Mr. Gutierrez continued to work for Delphi throughout that period.

21Ms. Sroor’s time in Michigan was the first time that she had lived outside of Mexico. She received, through Mr. Gutierrez’s employment package, 50 hours of English language lessons. She also recalled attending a free English class in Plymouth, Michigan.

22Ms. Sroor was not continuously employed while the family resided in Michigan. That was a point of contention between the parties. The evidence of the respondent husband was that there was always an expectation that Ms. Sroor would return to work after marriage. Again, Ms. Sroor’s position is that she was unable to work for two years under her L2 visa. Instead, she did some volunteer activities, singing at her church. She found a job as a nanny in Dearborn, Michigan, but the position did not pay very much and was short-lived. She had an opportunity to work with a local school board on a database, but she does not recall precisely why she did not land the position; she believes the board did not call her back.

23It is common ground that the couple socialized with other families within the Mexican “expat”(riate) community in Michigan. It appears that this also was a point of contention within the marriage. The evidence of the respondent husband was that Ms. Sroor got along “way too well” with the other wives in the “expat” community, none of whom worked. Mr. Gutierrez explained that these other families had different goals, in that, they just wanted to complete their three-year employment contract and then return to Mexico. But that was not the goal of Mr. Gutierrez.

24As referenced above, the parties’ only child, Brenda, was born October 31, 2005, in Michigan.

25The evidence of the applicant wife was that, following the birth of their child, her responsibilities within the marriage were devoted to caring for Brenda and running the home. The respondent husband denied that there was ever an agreement that Ms. Sroor should stay home with Brenda. His testimony was that, during his employment with Delphi for the period from 1997 to 2013 (including the period from 2002 to 2013, during which he mostly worked in Michigan), he was paid in Mexican pesos. Given the currency fluctuation in the Mexican peso – Mr. Gutierrez testified that one day it could be 5:1, and the next day it could be 13:1 – his evidence was that “in that reality, I needed her to work.”

26In 2007, after almost six years in Michigan (two three-year contracts), the parties moved to Juarez City in Chihuahua, Mexico, again because of another transfer in Mr. Gutierrez’s employment with Delphi. The evidence of the respondent husband was that the Michigan company was experiencing financial difficulties, Delphi being part of General Motors, within the context of the 2007-2008 economic crisis in the automotive industry.

27The evidence of the respondent husband was that he did not wish to work in Juarez City because, as he testified, and both parties agreed, it was a very dangerous city because of the drug trafficking and related violence. However, he felt it was a “forced decision.” His company was offering him a return to Mexico City with no job or a transfer to Juarez City with a job. Mr. Gutierrez was very conscious of the fact that his job was the only source of the family’s income. He testified that if Ms. Sroor had a steady job, then he would have had a choice.

28The parties stayed in Juarez City for only a year-and-a-half. In her testimony, Ms. Sroor described a security incident that occurred at Brenda’s school. Mr. Gutierrez tendered his resignation with Delphi as a result of the family’s situation. His evidence was that he told his employer that “no job justifies risk to my family.”

29Mr. Gutierrez testified as to some candid conversations with his boss and his boss’s boss. As he understood it, the plan that his bosses put to him was that he should take a pay-cut and he could go anywhere he wanted until they found a job for him back in Michigan. The respondent husband knew that he could go to Montreal, Quebec, because he had a sister who lived there.

30Accordingly, in 2008, the parties moved to Montreal, where the respondent husband’s sister offered the family a place to live. While living in Quebec, the respondent husband continued to receive 40 percent of his income, but he was not required to actually work. Indeed, neither of the parties worked while the family resided in Montreal.

31The family stayed in Montreal for less than a year. In 2009, the family moved to Novi, Michigan, as Delphi offered Mr. Gutierrez a position there. In cross-examination, the applicant wife acknowledged that she received an authorization card that permitted her to work from November 2009 until May 2011.

32In June 2010, the family moved to Windsor, Ontario, and lived in a residence at 2143 Everts Avenue, in the South Cameron area of Windsor. Legal title to the home was placed in the name of the respondent husband. He purchased the residence with the benefit of a housing allowance benefit made available to him through his employer. He commuted to his workplace in Michigan from that residence.

33Subsequently, the respondent husband obtained employment with ZF Corporation in Livonia, Michigan.

34In September 2010, after the family had moved to Canada, Brenda started school at Notre Dame Catholic Elementary School in Windsor. Prior to that, Brenda was in daycare, in Michigan, from at least November 2009.

35The parties separated in the home as of July 31, 2014. The respondent husband continued to pay for all expenses for the maintenance of the home, without any financial contribution from the applicant wife. The evidence of the applicant wife was that she bought food for herself and, on occasion, for Brenda as well, but that all of her remaining income, she kept for herself. In cross-examination, Ms. Sroor agreed with the proposition that Mr. Gutierrez paid for the family bills, and she kept her own income for her personal use.

36The parties physically separated as of October 1, 2016, when the applicant wife moved into her own apartment.

37Immediately after the parties’ physical separation, Brenda had week-about parenting time with the parties, residing one week with the applicant wife and the next week with the respondent husband. (Each of the parties also had a mid-week visit with their daughter from after school until 8:00 p.m. when she was in the care of the other parent.)

38The applicant wife commenced this proceeding on April 29, 2016.

39On March 8, 2017, a temporary order was made by King J., in accordance with a consent endorsement request, pursuant to which the court ordered, inter alia, that:

a. The parties shall have joint custody of Brenda on an equal time-sharing basis. b. The respondent husband shall pay the applicant wife the sum of $2,000, to be credited against future support payments owing to the applicant wife or the equalization of net family properties. c. Commencing October 1, 2016, the parties shall pay child support for Brenda as follows: i. The respondent husband shall pay $1,114 per month to the applicant wife, based on his annual income of $130,000, and ii. The applicant wife shall pay $375 per month to the respondent husband, based on her annual income of $41,600. d. Commencing October 1, 2016, on a without prejudice basis, the respondent husband shall pay the applicant wife spousal support in the amount of $1,841 per month.

40In August 2018, Ms. Sroor moved in with her boyfriend, Mr. Lance Ransom. They reside at his residence at 238 Woodview Drive, in Essex, Ontario. Mr. Ransom is an employee of General Motors in Michigan.

41On September 6, 2020, at the age of 14 years, Brenda moved in with the applicant wife on a full-time basis.

42Some nine months later, on June 7, 2021, at the age of 15 years, Brenda moved out of the applicant wife’s residence and moved to the respondent husband’s residence, where she continues to reside on a full-time basis.

43On December 10, 2021, King J. heard competing motions from both parties as to interim child support and interim spousal support pending trial. In His Honour’s endorsement released January 14, 2022, in support of the court’s temporary order of that same date: ³

a. King J. found that Brenda had been living with the respondent husband since June 7, 2021. ⁴ b. His Honour also found that each of the parties had made offsetting child support payments, the respondent husband in the amount of $7,798, and the applicant wife in the amount of $3,375, for a net overpayment amount of $4,423 by the respondent husband. ⁵ c. On the issue of child support from June 1, 2021, to December 21, 2021, in respect of which the applicant wife acknowledged her obligation to pay support for Brenda, King J. ordered that the applicant wife pay $670 per month, for a total of $4,690, based on her income and a severance package of $71,723 (less any amounts already paid by the applicant mother on this account). ⁶ d. On the issue of then-prospective child support commencing January 1, 2022, King J. ordered the applicant wife to pay the respondent husband $237 per month based on her annualized EI income of $28,080 at the time. ⁷ e. On an “interim interim without prejudice basis,” the court ordered the respondent husband to continue to pay the applicant wife spousal support in the mid-range amount of $1,868 per month, based on his income of $189,827 and her income of $71,723. ⁸

44Based on the evidence before me, I find that the parties’ annual income for the years in question was as follows:

a. For the applicant wife: i. In the 2013 taxation year, her total income was $4,410. ii. In the 2014 taxation year, her total income was $19,383. iii. In the 2015 taxation year, her total income was $13,271. iv. In the 2016 taxation year, her total income was $48,284. v. In the 2017 taxation year, her total income was $62,115. vi. In the 2019 taxation year, her total income was $82,574. vii. In the 2020 taxation year, her total income was $62,512. viii. In the 2021 taxation year, her total income was $125,245. ⁹

b. For the respondent husband: i. In the 2013 taxation year, his total income was $85,997. ii. In the 2014 taxation year, his total income was $107,030. iii. In the 2015 taxation year, his total income was $135,300. iv. In the 2016 taxation year, his total income was $135,300. v. In the 2019 taxation year, his total income was $193,179. vi. In the 2020 taxation year, his total income was $189,827. vii. In the 2021 taxation year, his total income was $201,680.

45It is common ground that in April 2022 the respondent husband stopped paying all spousal support, contrary to the order of King J. dated January 14, 2022. At trial, his counsel, Mr. Handysides, characterized the respondent’s decision to stop paying spousal support as “less than ideal.” Counsel was engaging in some client-friendly understatement. I will deal with the issue below.

46As referenced above, the applicant wife abandoned her claim for an equalization payment. The evidence of the respondent husband at trial was that he was worth less as of the date of separation than he was as of the date of marriage. The Form 13B: Net Family Property Statement dated September 13, 2022, tendered by the applicant wife at trial indicated that the applicant wife owed an equalization payment of $3,688.02 to the respondent husband.

47At present, Brenda is 18 years of age. She will attain 19 years of age this October 2024.

48As referenced above, this proceeding was commenced in April 2016. It took more than six years to get to trial. ¹⁰ There are a number of reasons that contributed to that delay, ¹¹ but it appears to be common ground that the most significant factor was the complicated nature of the property issues, including the validity of the parties’ marriage contract, the validity of the enforcement of the separation of assets regime entered into under the parties’ marriage contract in the event of their separation, whether Mexican law would govern the division of property because of the alleged marriage contract or whether Canadian law would determine division of property, etc.

49At one point, a trial of an issue had been ordered to determine the questions relating to the Mexican law/marriage contract/division of property issues and was scheduled to proceed in June 2018, but that trial of an issue was then adjourned to October 2018, and was then further adjourned to a date to be fixed by the Trial Coordinator.

50Ultimately, that trial of an issue was never heard because the parties resolved the property issues.

Issues

51The following issues arise in this proceeding:

a. The obligation of the applicant wife to pay child support. b. The calculation of the retroactive support award. c. The applicant wife’s claim for prospective spousal support. d. Costs.

Analysis

The obligation of the applicant wife to pay child support

52Brenda has been residing with her father since June 2021. The applicant wife does not dispute her obligation to pay child support for Brenda for so long as she remains a child of the marriage for the purposes of the Divorce Act. ¹²

53As of the time of trial, the applicant wife was employed on a full-time basis at IZA Design & Manufacturing Inc., as a 3D designer. Her evidence was that she is paid $27 per hour and works an average of 42 hours per week. I find that a fair estimate of the applicant’s extrapolated annual income is $58,968. ¹³

54The corresponding table support amount under the Federal Child Support Guidelines ¹⁴ for one child based on an annual income of $58,968 is $545 per month, which, I find, is payable to the respondent husband commencing October 1, 2022.

55The evidence at trial was that the applicant wife has health and medical benefits available to her through her employment. As the respondent husband is employed in the state of Michigan, he does not have medical benefits available for their daughter in Canada, and she is in need of the Canadian coverage available to the applicant wife through her employment. I therefore agree with Mr. Handysides that the applicant should be ordered to provide benefit coverage to their child under the plan available to her.

The calculation of the retroactive support award

56Both Mr. Howie for the applicant wife and Mr. Handysides for the respondent husband presented their own calculations of what they say is owing for retroactive support (child and spousal) for the period from 2018 to September 2022 (commencement of trial), based on the actual incomes earned by the parties, the residency of Brenda, and the two interim support court orders.

57The position of the applicant wife is that she is owed $49,835 ¹⁵ by the respondent husband for retroactive support. The position of Mr. Gutierrez is that he owes Ms. Sroor $28,645.13 in retroactive support.

58Both parties based their calculations of spousal support owing based on the mid-range, which I find is appropriate, for the reasons discussed below.

59There is one central difference between the parties’ respective calculations. The proper calculation of the retroactive amount should have regard for the tax treatment of support payments.

60The payment of spousal support by the respondent husband would be by way of a lump-sum payment and, as such, it would not be available to him for an income tax deduction in the same manner as a periodic payment would be. The respondent husband earns $201,680 per year from his employment and has an effective tax rate of 37.7 per cent. As such, in order to properly “true up” the support obligations owing between the parties, the lump-sum amount of spousal support payable to the applicant wife should be reduced by 37.7 per cent to account for the fact that it will not be tax deductible to the respondent husband, nor taxable in the hands of the applicant wife, as it will be satisfied by a lump-sum payment.

61This approach is reflected in the calculations submitted by Mr. Handysides, which I accept. A copy of those calculations are attached as Schedule “A” to these reasons.

62While the mechanics of the credits and debits are set out in the calculations, to summarize, (a) the net child support owing to the applicant wife is $8,027, and (b) the net spousal support owing to the applicant wife is $36,310, less taxes payable at an effective rate of 37.7 per cent, being the amount of $13,688.87, less the $2,000 advance payment pursuant to the 2017 interim order of King J., which equals $20,621.13. The total of the net child support owing ($8,027) and the net spousal support owing ($20,621.13) is $28,648.13. As such, I find that the respondent husband owes $28,648.13 in retroactive support to the applicant wife.

63It is worthy of note that with the retroactive award of $28,648.13 makes the applicant wife completely whole, based on the actual incomes earned by the parties and the mid-range support level, from the date of separation to the commencement of trial.

The applicant wife’s claim for prospective spousal support

64The most contentious issue between the parties involves the quantum and duration of spousal support payable by the respondent husband to the applicant wife.

65The position of the applicant wife at trial was that the respondent husband should pay prospective spousal support at the mid-range level of $2,287 per month for an unspecified duration, subject to variation in the event of a material change of circumstances, regardless of whether the change is foreseeable or unforeseeable.

66The position of the respondent husband at trial was that his obligation to pay spousal support to the applicant wife should terminate effective September 30, 2022.

Statutory Provisions

67Section 15.2 of the Divorce Act authorizes the court to make an order for spousal support for married spouses, as follows:

Spousal support order 15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

Interim order (2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1).

Terms and conditions (3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

Factors (4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (a) the length of time the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse.

Spousal misconduct (5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

Objectives of spousal support order (6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

68No one objective of a spousal support order predominates; rather, all four objectives must be balanced in the context of the circumstances of the particular case. ¹⁶

Basis of Entitlement

69It is well established that there are three conceptual bases for entitlement to spousal support: compensatory, non-compensatory, and contractual. ¹⁷ Contractual support is not sought in the instant case.

70Mr. Howie submits that the circumstances of Ms. Sroor, the parties’ roles within the marriage, the impact on Ms. Sroor caused by the breakdown of the marriage, and other relevant factors combine to make a strong case for compensatory and non-compensatory support.

71I am not convinced by Mr. Howie’s argument that Ms. Sroor presents a particularly strong compensatory claim.

72To be clear, I say at the outset that I agree with Mr. Howie’s submission in reply argument that compensatory support is not reserved for only those cases that present long-term marriages with stay-at-home parents, as typified by, to use Mr. Handysides’ term, the “great grandma” cases. There certainly can be cases other than what some call “traditional” marriages where one spouse suffered economic disadvantage arising out of the marriage.

73I agree that there is some compensatory basis for Ms. Sroor’s spousal support claim; but I do not agree that hers is a particularly strong compensatory claim.

74That is, I agree, and there can be no question, that the parties lived in five locations, in three different countries, in order to allow the respondent husband to pursue his career (although I would not include the parties’ move to Quebec as part of the respondent’s career pursuit – on the contrary, he did not actually have a job at the time, and my sense of the evidence is that they moved there just because his sister offered them an inexpensive place to live). And I recognize that these moves would have made the independent pursuit of Ms. Sroor’s own career a little more logistically challenging. So, in my view, there is at least some economic disadvantage arising out of the marriage.

75But I also note two important features of the evidence at trial. First, as I have referenced above, the couple had specific discussions during their engagement about their plans for the future, and, as I have found, those plans were agreed to by Ms. Sroor. On my view of the evidence, both parties perceived the opportunity to leave Mexico and have Mr. Gutierrez take up an employment position in Michigan as a great opportunity to improve their lives as a married couple. Ms. Sroor agreed. I have also found that the couple’s ultimate goal was to move to Canada; that was something that both Mr. Gutierrez and Ms. Sroor discussed during their engagement and agreed upon. This was not a situation of Mr. Gutierrez merely dictating to Ms. Sroor how their married life was going to unfold. Ms. Sroor is not an individual that one would call meek, docile, or submissive. On the contrary, I find on the evidence before me that these plans to leave Mexico and pursue a better life in the U.S.A. and, ultimately, Canada was something that both parties discussed before the marriage and agreed upon.

76Second, and more importantly, on the evidence before me, I reject the contention of the applicant wife that she and Mr. Gutierrez expressly agreed that she would not work during the marriage and that her role was to stay home and look after Brenda and run the household. On the contrary, I accept the evidence of Mr. Gutierrez that there was always an expectation that Ms. Sroor would return to work. I agree with the submission of Mr. Handysides that the applicant wife’s refusal to re-enter the workforce is not the same thing as deliberately staying out of the workforce to care for their child and to support the respondent husband’s career.

77In my view, the evidence before the court overwhelmingly supports the former scenario, and I find that the instant case is one where the applicant wife refused to re-enter the workforce during the marriage.

78That finding is based on the totality of the evidence adduced at trial, but I would highlight the following aspects of the evidence before me:

a. Again, the parties married in July 2000 and moved to Canton, Michigan, in October 2002. Brenda was not born until October 2005. More than five years passed before the married couple’s first and only child was born, and during the period, one can only say that the applicant wife’s work history was sporadic, at best. b. Stepping back, but taking in all of the evidence on point, I continue to struggle to understand the objective basis for the applicant wife’s position that her failure to re-enter the workforce was anything other than her own personal choice. c. In particular, I am not satisfied with the applicant wife’s explanation that her L2 visa, which she obtained through the respondent husband’s employment when the couple moved to Canton, Michigan, did not legally permit her to work for two years, i.e., from 2002 to 2004. That position was squarely contradicted by the evidence of the respondent husband. If the applicant wife wished to establish the veracity of her position at trial, it was incumbent upon her to call expert evidence at trial as to one’s employment capabilities when holding an L2 visa. She failed to present that evidence. d. As referenced above, the evidence of the respondent husband was that because he was paid in Mexican pesos during his employment with Delphi from 1997 to 2013, given the currency fluctuations, “in that reality, I needed her to work.” The respondent husband was not cross-examined on this point. e. The evidence establishes that Brenda was in daycare by November 2009 (at the latest), when she was then four years of age. Brenda was attending elementary school at Notre Dame in Windsor full-time as of September 2010. Even assuming for the moment that I were to accept the applicant wife’s position (which I do not) that her self-professed child-rearing responsibilities prevented her from re-entering the workforce, the impact of any such responsibilities was largely ameliorated by 2009 to 2010, when Brenda started in daycare and then elementary school. And yet Ms. Sroor still did not return to the workforce at that time. f. When Mr. Handysides put to Ms. Sroor in cross-examination that she could have found full-time employment once Brenda started attending elementary school on a full-time basis in September 2010, she replied “probably.” g. The evidence of both parties was that the question of the applicant wife not looking for and/or obtaining steady employment during the marriage was the subject of ongoing arguments between the parties throughout the marriage. It is not clear to me how to reconcile that admitted evidence with the position of the applicant wife. That is, if in fact there was an agreement, understanding, or expectation between the parties that Ms. Sroor was not to return to the workforce during the marriage and/or for Brenda’s early child-care years, then why would the parties have continued arguments about it? If in fact they both agreed to the applicant wife staying home, then why would there be a need to continually argue about it? That makes no sense to me. Rather, it seems to me that it is more probable than not that the reason the couple continued to argue about the issue throughout the marriage is because in fact there never was any agreement, understanding, etc., that Ms. Sroor should stay home; rather, the reason why the couple continued to argue about it was because, consistent with the evidence of the respondent husband, Mr. Gutierrez very much wanted his wife to return to the workforce but she declined to do so. h. I note the efforts the Mr. Gutierrez made to prompt Ms. Sroor to re-enter the workforce. Among other efforts, I highlight, in particular, the email exchange between Mr. Gutierrez and Ms. Sroor on May 11, 2011, when, Mr. Gutierrez having been contacted by email by a head-hunter or, more correctly, a person in “Engineering Talent Relationship Management” with a recruitment firm that specializes in engineering professionals, who reached out to Mr. Gutierrez to indicate that their firm was interested in maintaining a long-term relationship with him even if he was not actively looking for new employment at the moment, then forwarded that email exchange to his wife and suggested that, “Intenta este link de Head Hunters” [try this head hunters link], and he then provided a link to the head hunters’ website for his wife. His evidence was that Ms. Sroor never followed up. I consider this to be objective evidence that supports the testimony of the respondent husband and contradicts the evidence of the applicant wife. Again, if in fact there was an agreement between the married couple that Ms. Sroor should not work during the marriage, then why would Mr. Gutierrez be sending her emails suggesting that she try this head hunters’ link? i. I agree with Mr. Howie that in anticipation of the separation of the parties, the applicant wife made admirable efforts to obtain new employment. In my view, she saw the writing on the wall. j. Particulars of Ms. Sroor’s employment endeavours during that time period include the following: i. After the parties separated in the home in July 2014 and before Ms. Sroor physically moved out of the matrimonial home in October 2016, she said she was “very fortunate” to find work through the husband of a friend, who were both from Columbia, and the friend’s husband indicated they needed employees to work with systems, which the applicant wife described as “old platforms” that she had experience with from her employment in Mexico. The applicant wife believes that this employment was with Hiram Walkers. ii. The applicant wife then obtained a job at a company she described as “Champion.” The position was for three months only. Despite representations that she would be working on a software program called “Crystal,” she described that she worked cleaning a cold warehouse. iii. The evidence of the applicant wife was that, after the brief position at Champion and before she left the house (in October 2016), she attended a job fair and found a position at Windsor Machine Group. She was hired as a “trim engineer” and worked 40 hours per week. It appears that she commenced her position on or about November 8, 2015. She described that position as the “key” to permit her to leave the matrimonial home. Her notice of assessment in 2015 shows total income of $13,271 and in 2016, $48,284. iv. The applicant wife’s employment with Windsor Machine Group came to an end on October 1, 2020. She was permanently laid off and received a severance package. The severance package included 26 weeks of regular wages, with vacation pay and health benefits until April 2021. v. The applicant wife was out of work for only four months. She obtained employment at Woodbridge Foam Corporation, as a trim engineer, as of January 2021. The position required her to commute to Blenheim, Ontario, every day. vi. The applicant wife testified that while she was employed at Woodbridge Foam, she noticed that her eyes and lymph nodes started to swell. She sought medical attention, and it was determined that she was probably allergic to some of the chemicals with which she was working. Her doctor confirmed that she could not return to work due to her reaction to a chemical known as isocyanate. The applicant wife’s employment came to an end on September 1, 2021, and she received a severance of 21 weeks, being a lump sum of $27,057.69. vii. Undeterred, the applicant wife found another job on May 10, 2022, with IZA Design & Manufacturing Inc. in Ruthven, Ontario. She was hired as a product design junior engineer. (This position is unrelated to her computer science education.) She works Monday to Friday from 6:00 a.m. to 3:30 p.m. She is paid $27 per hour and works 44 hours a week.

79As such, it is not unfair to say, as Mr. Howie urges, that the applicant wife made “exemplary” efforts to obtain employment post separation.

80But that relates only to Ms. Sroor’s efforts to find employment post separation and/or for that period following July 2014 when the marriage had broken down, the parties separated in the house, and it was apparent that financial separation was imminent.

81Put differently, the applicant wife’s commendable, if not “exemplary,” efforts to obtain employment post separation does not mean that she was economically disadvantaged during and because of the marriage.

82Rather, I suspect that her commendable efforts, post-separation, to secure meaningful employment lend credence to the common-sense argument of Mr. Handysides that, in the anticipation of the parties’ separation, when the applicant wife’s focus would have been on her post-separation circumstances, her abundant success in securing alternate positions suggests that she would have had similar success in obtaining good-paying employment positions if only she had brought similar focus and made some concerted effort towards that goal.

83On the evidence before me, it appears that the respondent husband was an active participant in the raising of their daughter Brenda throughout the parties’ marriage. Immediately following the physical separation of the parties, they shared parenting time with their daughter on an equal time-sharing basis. Any burden on either party flowing from childcare responsibilities was divided evenly between the parties following their physical separation and was shared during the marriage.

84In sum, I am not satisfied that the applicant wife has established a strong compensatory claim to spousal support.

85That said, I am satisfied that the applicant wife’s entitlement to spousal support is established on a non-compensatory or needs-based model. There is an obvious and marked disparity in the respective incomes of the parties. In 2016 when the parties physically separated, the applicant wife earned a total income of $48,284, while the respondent husband earned $135,300. The respondent husband was earning almost three times what the applicant wife was earning.

The Impact of Re-partnering

86As indicated above, in August 2018, Ms. Sroor started to cohabit with her new partner, Mr. Lance Ransom, residing in his home in Essex, Ontario. Like the respondent husband here, Mr. Ransom also works in Michigan in the automotive industry.

87Mr. Ransom earns a salary that is certainly comparable, at the least, to that of Mr. Gutierrez. According to his notices of assessment, Mr. Ransom earned $202,028 in the 2019 taxation year (while Mr. Gutierrez earned $193,179), and he earned $219,122 in the 2020 taxation year (Mr. Gutierrez earned $189,827). For the 2021 taxation year, Mr. Ransom earned $207,692, while Mr. Gutierrez earned $201,680.

88The evidence of the applicant wife was that Mr. Ransom pays for all the housing expenses on behalf of himself and the applicant wife and, by her own admission, when she finds herself unemployed or short on cash, Mr. Ransom steps in and “picks up the difference” in their household bills on her behalf (as, I would note, spouses typically do for each other). As such, in addition to the spousal support payments that she has received from Mr. Gutierrez since the commencement of her common law relationship in August 2018, her common-law partner, Mr. Ransom, is also supporting Ms. Sroor.

89That said, the evidence of Ms. Sroor at trial was that, although at one point she and Mr. Ransom were engaged to be married, since then their relationship has become somewhat tenuous. The court first heard of Ms. Sroor’s concerns for the status of her relationship with Mr. Ransom on the first day of her evidence, in September 2022. Her evidence attempted to portray a picture in which the relationship between Ms. Sroor and Mr. Ransom was deteriorating and might not be permanent. And yet, half-a-year later in March 2023, when counsel were making their final oral argument, the relationship between Ms. Sroor and Mr. Ransom remained intact.

90In these circumstances, and in view of the totality of the evidence before me, I do not accept Ms. Sroor’s evidence that her relationship with Mr. Ransom is in any appreciable doubt. Frankly, I regard her evidence as tactical and self-serving.

91However, it is to be noted that Mr. Ransom has obligations to his first family. Pursuant to the divorce order of Patterson J. dated September 12, 2018, Mr. Ransom was ordered to pay, commencing October 1, 2018, the sum of $2,129 USD per month for the support of his first two children, as well as the sum of $750 USD per month for the support of his first wife.

92As such, I have also considered the effect of Ms. Sroor having re-partnered and her continuing relationship with Mr. Ransom. The cases have held that where a spouse re-partners in a relationship of some permanence post-separation, that does not automatically disentitle the spouse to spousal support, although it is one of several factors that may impact the quantum and duration of support. In Politis v. Politis ¹⁸, Nakonechny J. summarized the law as follows:

A spouse’s re-partnering in relationship of permanence post-separation does not disentitle them to spousal support. However, the re-partnering does impact the quantum and duration of spousal support: Conway v. Conway, [2005] O.J. No. 1698 (Ont. S.C.J.).

Re-partnering has a greater impact on need-based support than on compensatory support. Re-partnering does not compensate for financial hardship experienced by a spouse as a result of the former marriage and its breakdown. But when a spouse who has financial need re-partners, the burden of meeting that need shifts over time from the former spouse to the new spouse. The longer the second relationship, the greater the obligation of the new spouse to meet that financial need: Kelly v. Kelly, 2007 BCSC 227, [2007] B.C.J. No. 324 (B.C.S.C.), at para. 49.

93Further, as Fryer J. reiterated in G.(J.M.) v. G.(L.D.) ¹⁹, our courts have held that the significance of the re-partnering will vary, depending, on a number of factors, including:

a. the duration and stability of the new relationship; b. the value to the support recipient of any benefits she or he receives by reason of this new relationship; c. the existence of any legal obligation of the new partner to provide support; d. the economic circumstances of support recipient’s new partner, sometimes in comparison to his or her former partner.

94As such, I have considered that Ms. Sroor has been in a new common-law relationship with Mr. Ransom for over five years now. Mr. Ransom earns a comparable (somewhat better) income than does Mr. Gutierrez. While Mr. Ransom continues to shoulder not insignificant financial responsibilities to his first family, he still has the financial means to help support the applicant wife here. On my assessment of the totality of the evidence before me, it appears that Ms. Sroor now enjoys a standard of living with Mr. Ransom that is comparable to, or better than, the standard of living that the parties in the instant case enjoyed during their marriage.

95I have considered all of these circumstances in crafting the award here.

Quantum

96In many contested spousal support cases, the amount of income to be attributed to the parties is a live issue. That is not the case here. As our Court of Appeal observed in Mason v. Mason ²¹, s. 6.1 of the Spousal Support Advisory Guidelines ²⁰ states that: “[t]he starting point for the determination of income under the Spousal Support Advisory Guidelines is the definition of income under the Child Support Guidelines.”

97I have found that the income of the applicant wife for child support purposes is $58,968. As reflected in both counsel’s calculations of the retroactive support amount owing, it is common ground that the income of the respondent husband for support purposes is $201,680.

98Turning to the question of quantum, I first pause to note the case law that has developed around the status of the Spousal Support Advisory Guidelines and their use as the presumptive starting point for making an award of spousal support. In Politis v. Politis ²², the Court of Appeal held that:

The appellant is correct in pointing out that the ranges generated by the Spousal Support Advisory Guidelines (Ottawa: Department of Justice, 2008) formulas are the presumptive starting point for awarding support: McKinnon v. McKinnon, 2018 ONCA 596, [2018] O.J. No. 3487, at para. 24; Slongo v. Slongo, 2017 ONCA 272, 137 O.R. (3d) 654, at paras. 105–106. While not binding, the SSAGs should not be lightly departed from: Slongo, at para. 105. Any departure requires adequate explanation: McKinnon, at para. 24. That being said, while the SSAGs formula offers a valuable tool in assessing a reasonable amount of spousal support, there are complicating factors that must be considered: Gray v. Gray, 2014 ONCA 659, 50 R.F.L. (7th) 257, at para. 45.

Where, in my view, the appellant’s position errs is in equating the principled guidance offered in the SSAGs as a whole with the values generated by the short-hand formulas. Those formulas are intended to be used as tools only and, according to the SSAGs themselves, cannot be applied automatically in every case.

99With the applicant wife’s annual income of $58,968 and the respondent husband’s annual income of $201,680, the DivorceMate calculations following the SSAGs indicate that the applicable range of spousal support runs from $1,960 (low) to $2,287 (mid) to $2,614 (high).

100Here, both counsel based their calculations on the mid-range level of support.

101I agree with counsel’s assessment.

102In his closing argument, Mr. Howie on behalf of the applicant wife submitted that, but for his client’s re-partnering with Mr. Ransom, he would otherwise argue for placement at the high-range because, as counsel said, “it checks off all the boxes,” in that, there is here a heavy compensatory claim, there was no equalization award made, and the applicant wife made “remarkable” efforts to achieve self-sufficiency.

103I have already explained that while I agree with Mr. Howie that Ms. Sroor made commendable efforts towards self-sufficiency after separation and only when “the writing was on the wall,” I respectfully disagree with Mr. Howie that the applicant wife presents a strong compensatory claim. As I have said, while I agree that there is some merit to the applicant wife’s claim to spousal support on a compensatory basis, I certainly do not regard hers as a strong compensatory claim.

104All circumstances considered, including the applicant wife’s re-partnering with Mr. Ransom, I am satisfied that the support obligation is appropriately positioned at the mid-range level under the SSAGs or, in other words, $2,287 per month.

Duration

105I have, of course, considered the question of duration of the spousal support award – perhaps the most critical issue between the parties in this trial.

106At the end of the day, this was a marriage of 14 years and 26 days. It was not a long-term marriage, as that term is understood in the caselaw. Rather, it was a medium-length marriage of less than 14 years and one month. To date, by reason of the retroactive support award that I have made (which serves to make the applicant wife completely whole under the interim court orders), the respondent husband has effectively been paying support since October 1, 2016 (under para. 10 of the interim order of King J. dated March 8, 2017, and para. 6 of the interim order of King J. dated January 14, 2022).

107While this was a marriage of some 14 years, the applicant wife was just 43 years of age when the marriage broke down. This is certainly not the type of case that justifies making the spousal support obligation indefinite in the sense of permanent or “for life.” Moreover, this is certainly not a “Rule of 65” case. And in fairness to Mr. Howie, he did not argue for same.

108In the circumstances of the instant case, the SSAGs indicate a spousal support duration of seven to fourteen years.

109There was disagreement between the parties as to the effective commencement of the spousal support obligation. That is, when should the respondent husband’s support obligations begin? On behalf of the respondent husband, Mr. Handysides argued that it is appropriate that the respondent husband receive credit for “third-party” payments made on behalf of the applicant wife in lieu of spousal support from July 31, 2014, until October 1, 2016. Mr. Handysides submitted that this would result in a credit of two years and three months of spousal support paid against the ultimate duration of support as determined by this court.

110Respectfully, I must disagree. I have reflected on this point at great length. I have reviewed and weighed the evidence supporting each party’s position. On balance, in my view, I do not think it is appropriate to credit the respondent husband for the value of full-up spousal support payments ever since the parties legally separated on July 31, 2014, in advance of their physical separation on October 1, 2016.

111No one can doubt that the respondent husband was paying for some expenses to maintain the matrimonial home during that two-year period, which financially benefitted the applicant wife while she was residing there. By her own admission, she was able to bank essentially all of her earned income.

112However, the reality is that the parties’ finances were not completely separate during the time period from legal separation (July 31, 2014) until physical separation (October 1, 2016).

113Moreover, the evidence presented did not distinguish or break-down what portion of payments, the respondent says, should be attributed to the applicant wife. So, for example, given that Brenda was staying with him on a full-time basis as of June 2021, and he was paying for, say, all of the mortgage payments and property tax payments on the residence, what is the appropriate amount to be attributed to the applicant wife, given that the respondent husband was paying for those amounts in any event? That argument was for the respondent husband to advance.

114On the other hand, certainly, in theory, one might surmise that for those household maintenance expenses that depend on consumption, there might be an amount notionally attributable to the applicant wife staying in the matrimonial home from July 2014 to October 2016. For example, the respondent husband would have paid for a water utilities bill for the maintenance of the matrimonial home, and such utility bills are based on consumption – the more water used by the household, the more the amount of the utility bill. And so, logically, the addition of the applicant wife in the matrimonial home during that period of time would have increased the respondent husband’s obligation for such expenses. (That said, at least in the context of the example I have provided, it is not clear to me that the increase in the respondent husband’s financial obligation would be all that significant.)

115But none of that was quantified before me.

116And that evidence was incumbent on the respondent husband to present if he wished to establish his claim that the amounts he said he paid for the maintenance of the matrimonial home during the period from July 31, 2014, to October 1, 2016, should offset his support payments to the applicant wife under the SSAGs for that same period. But that was not done.

117As such, I am not prepared to conclude, on the evidence before me (or lack therefor), and without the respondent husband having presented any financial breakdown on this point, that the amounts he says he paid for the maintenance of the home, etc., for the period from July 31, 2014 to October 1, 2016, would equal or surpass the amount he would otherwise have been obligated to pay to the applicant wife as spousal support under the SSAGs for that same period.

118The interim order of King J. dated March 8, 2017, ordered that the respondent husband should start to pay the applicant wife spousal support as of October 1, 2016. In the circumstances where the parties separated in the home as of July 31, 2014, but did not physically (or completely financially) separate until October 1, 2016, in my view, the determination by King J. that the spousal support obligation should commence of October 1, 2016, was wholly appropriate.

119Further, as I have explained above, the retroactive support award that I have made effectively serves to make the applicant wife completely whole from the date of physical separation until the commencement of trial.

120Therefore, while I would not terminate spousal support immediately or retroactively, given all of the circumstances of the instant case, I conclude that the respondent husband’s support obligation should terminate as of September 30, 2024.

121As of September 30, 2024, the respondent husband will have paid spousal support for eight years (in addition to the financial assistance he provided for the two-year period they were separate in the house).

122Through the commendable efforts of the applicant wife, post-separation, to achieve self-sufficiency, she has become financially stable with full-time employment in her chosen field of work.

123I agree with the submission of Mr. Handysides that “non-compensatory or lifestyle support is meant to provide the recipient with a launching pad to [return the recipient] to economic self-sufficiency.” In my view, the eight years of spousal support that the applicant wife will have received from the respondent husband as of September 30, 2024, will have sufficiently provided her with that launching pad and will have returned her to economic self-sufficiency.

124In my view, by September 30, 2024, the time will have come when one may say that the applicant wife is fully compensated for any economic disadvantage she suffered because of the marriage breakdown and the respondent husband’s obligation to pay support to her can and should end.

125Moreover, by September 30, 2024, Ms. Sroor and Mr. Ransom will have been co-habituating for more than half-a-decade. As was said in Politis ²³, the burden of meeting the needs of a support recipient “shifts over time from the former spouse to the new spouse.” In my view, it is appropriate that the shifting of that burden be completed by September 30, 2024.

126For all of these reasons, I conclude that Mr. Gutierrez’s obligation to pay spousal support should terminate effective September 30, 2024.

Costs

127Costs should normally follow the event. Subrule 24(1) of the Family Law Rules ²⁴ provides that “[t]here is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.”

128In my view, the respondent husband was the more successful party at trial and is entitled to his costs. I appreciate that Mr. Gutierrez was not completely successful, as I did not terminate spousal support effective September 2022, as he had urged. However, there is no doubt that he was more successful on the critical issue of spousal support than was Ms. Sroor, and he prevailed on essentially all the other contested issues.

129That said, I would not award the respondent husband any costs of the proceeding.

130As I have referenced, the respondent husband stopped paying interim spousal support in April 2022, as he was required to do by the interim order of King J. dated December 10, 2021. It was not the case that the respondent husband did not understand his obligation under the court order – he had been previously paying it. And the evidence at trial was that he had the financial means to comply with the support order. He simply stopped paying. At trial, Mr. Gutierrez tried to suggest that he “got behind in his bills” – that was clearly not the case. The man was earning over $200,000 per year, and, as Mr. Howie observed, the only “bill” that he decided not to pay was his spousal support. Mr. Handysides offered some explanation for his client’s “less than ideal” decision to stop paying spousal support, suggesting, inter alia, that his client was frustrated by the litigation process. While I accept Mr. Handysides’ assertion that his client was frustrated, that provides no excuse or justification for disobeying a court order.

131Court orders are not suggestions. ²⁵ They are not recommendations or guidelines. They are orders of the court and must be obeyed. “A resentful spouse is not above the law. Where a party disagrees with an order, he may seek to appeal it. In some circumstances he may seek to vary it. But it is not an option to simply disregard the order.” ²⁶

132In Mercedes-Benz Financial v. Kovacevic ²⁷, Brown J. (as he then was) explained, in the context of a contempt motion, why it is imperative to follow court orders and their relationship to the rule of law, as follows:

A court exercises its contempt power to uphold the dignity and process of the court, thereby sustaining the rule of law and maintaining the orderly, fair, and impartial administration of justice: see the sources cited by Lax J. in Korea Data Systems Co. v. Chiang (2007), 85 O.R. (3d) 425 (Ont. S.C.J.), paras. 16 to 19. When a person deliberately fails to obey a court order, he shows disregard for the obligations which he owes to others in his community, disrespect for his community’s system of justice which enforces those obligations, and disdain for the fundamental principle that all persons who live in our community do so subject to the rule of law. By disobeying a court order, a person seeks to place himself above and beyond the law of his community. His disobedience also creates conditions of gross inequality, rewarding those who turn their backs on the law, while placing burdens on those who follow the law. As Cumming J. so aptly put it in Sussex Group Ltd. v. 3933938 Canada Inc., [2003] O.J. No. 2906 (Ont. S.C.J. [Commercial List]), at 48:

The thin veil of civilization that cloaks our community through the rule of law is fragile, in need of constant protection, and in need of being seen by all members of the community to be constantly protected. ²⁸

133The decision of Mr. Gutierrez to simply disregard the orders of the court for interim spousal support is not something I am prepared to overlook. It requires sanction. Thus, while Mr. Gutierrez is clearly the successful party at trial, and would otherwise be entitled to payment of some portion of his costs of the proceeding by the applicant wife (which would be significant given that this proceeding has been ongoing since 2016), I would deprive him of his entitlement to costs.

134Further, even if Mr. Gutierrez delivered an offer to settle that was less favourable to him than the result at trial, such that he would otherwise be entitled to a full recovery of his costs from the applicant wife pursuant to subrule 18(14), I would still deprive him of his costs. There are consequences for those who deliberately choose to disregard the orders of the court.

135In the result, there shall be no award as to costs. Each party shall bear their own costs.

Conclusion

136For the reasons set out above, a final order shall issue in the following terms.

137All temporary orders shall terminate effective September 30, 2022.

138There shall be no order as to decision-making responsibility or parenting time with respect to the child of the marriage, Brenda Denisse Gutierrez-Sroor, born on October 31, 2005, who continues to primarily reside with the respondent.

139The applicant, Silvia Denisse Sroor-Hernandez, shall pay child support to the respondent, Orlando Efrain Gutierrez-Aguirre, for the child of the marriage, Brenda Denisse Gutierrez-Sroor, born on October 31, 2005, in the amount of $545 per month, in accordance with the tables under the Child Support Guidelines based on the applicant’s annual income of $58,968, commencing October 1, 2022, and continuing on the first day of each month that follows.

140The annual income of the applicant is $58,968. The annual income of the respondent is $201,680. The applicant shall pay to the respondent 23 per cent of all reasonable and necessary extraordinary expenses as defined by s. 7 of the Child Support Guidelines that are incurred by the respondent for the benefit of the child of the marriage, Brenda Denisse Gutierrez-Sroor, born on October 31, 2005.

141The applicant shall maintain the child of the marriage, Brenda Denisse Gutierrez-Sroor born on October 31, 2005, as beneficiary on all health and medical benefits available to her through her employment and shall ensure that the respondent has a health benefit card and all necessary information in order to access the said benefit coverage.

142As of September 30, 2022, the net child support arrears owing between the applicant and the respondent are fixed in the amount of $8,027, which fixed amount shall be paid by the respondent to the applicant.

143As of September 30, 2022, the spousal support arrears owed to the applicant by the respondent are fixed in the amount of $20,621.13 (calculated on the basis of $36,310, less $13,688.87 being the taxes payable by the respondent at an effective tax rate of 37.7 per cent, less the $2,000 advance payable under para. 4 of the order of King J. dated March 8, 2017), which fixed amount shall be paid by the respondent to the applicant.

144The respondent, Orlando Efrain Gutierrez-Aguirre, shall pay spousal support to the applicant, Silvia Denisse Sroor-Hernandez, in the amount of $2,287 per month commencing October 1, 2022, and continuing on the first day of each month that follows until September 30, 2024. For greater clarity, the spousal support payable under this provision shall terminate effective September 30, 2024.

145There shall be no award as to costs.

Original signed by “J. Paul R. Howard”

J. Paul R. Howard Justice

Released: February 29, 2024

Footnotes

Footnotes

1. 3Sroor-Hernandez v. Gutierrez-Aguirre, 2022 ONSC 366 (S.C.J.).
2. 4Ibid., at para. 7, contrary to Closing Submissions Brief of the Respondent, Tab 4, Respondent’s Statement of Law, p. 3, para. 3(a) [semble 3(h)], that King J. found that Brenda had been living with the respondent “since June 1, 2021.”
3. 5Ibid., at para. 13.
4. 6Ibid., at para. 14.
5. 7Ibid., at paras. 15 and 19.
6. 8Ibid., at paras. 21, 23, and 28(6).
7. 9The higher income in 2021 included a severance package paid to the applicant wife by Woodbridge Foam Corporation on account of the cessation of her employment there.
8. 10There were at least two court orders extending the time for completion of the case.
9. 11While it is not the most significant factor – and I do not wish to over-emphasize the significance of this factor – but I do note that counsel for the applicant at trial appears to have been the third lawyer retained by the applicant wife over the course of the litigation.
10. 12Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.).
11. 13If the applicant was paid for 52 weeks a year, her annualized income would be $61,776 ($27/hr x 44 hrs/wk x 52 wks). However, the evidence at trial did not touch on her vacation time and how her employer treated vacation pay. As well, these calculations of extrapolated annualized income are solely based on the applicant’s base pay; they do not include overtime hours worked. The applicant’s pay stub that was made Exhibit no. 4 indicates that the applicant was paid $40.50 per hour (“time-and-a-half”) for overtime work. In all of the circumstances, the $58,968 estimate is quite fair to the applicant.
12. 14Federal Child Support Guidelines, SOR/97-175 (“Guidelines”).
13. 15The initial calculations prepared by Mr. Howie on behalf of the applicant claimed a difference owing by the respondent to her in the amount of $51,835; however, in his closing submissions, Mr. Howie very properly conceded that his calculations did not include the $2,000 amount that was to be credited towards the respondent pursuant to para. 4 of the order of King J. dated March 8, 2017, and, thus, his amount should be reduced to $49,835.
14. 16Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241, 47 R.F.L. (6th) 235, 288 D.L.R. (4th) 513, at para. 34.
15. 17Bracklow v. Bracklow, [1999] 1 S.C.R. 420, 44 R.F.L. (4th) 1, 169 D.L.R. (4th) 577, at paras. 15-31.
16. 18Politis v. Politis, 2020 ONSC 1306, 40 R.F.L. (8th) 174 (S.C.J.) [Politis SCJ], at paras. 111-112, affirmed on other grounds, 2021 ONCA 541, 158 O.R. (3d) 230, 61 R.F.L. (8th) 27 [Politis OCA]. See also G.(J.M.) v. G.(L.D.), 2016 ONSC 3042 (S.C.J., F.C.B.), at para. 283 per Fryer. J.
17. 19Ibid., at para. 283, citing Boland v. Boland, 2012 ONCJ 102 (O.C.J.), at para. 107. See also B.S. v. B.W., 2019 ONSC 2769, 27 R.F.L. (8th) 360 (S.C.J.), at para. 72.
18. 21Mason v. Mason, 2016 ONCA 725, 132 O.R. (3d) 641, at para. 50.
19. 20Carol Rogerson & Rollie Thompson, Spousal Support Advisory Guidelines (Ottawa: Department of Justice Canada, 2008) [“SSAGs”], at p. 31.
20. 22Politis OCA, at paras. 28-29.
21. 23Politis SCJ, at para. 112.
22. 24Family Law Rules, O. Reg. 114/99.
23. 25Lima v. Ventura (Estate of), 2020 ONSC 3278, 58 E.T.R. (4th) 232 (S.C.J.), at para. 24 per Emery J.
24. 26Taylor v. Taylor, 2005 CarswellOnt 5264, [2005] O.J. No. 4593, 21 R.F.L. (6th) 449 (S.C.J.), at para. 3 per Corbett J.
25. 27Mercedes-Benz Financial v. Kovacevic, 2009 CarswellOnt 1142, [2009] O.J. No. 888, 308 D.L.R. (4th) 562, 74 C.P.C. (6th) 326 (S.C.J.).
26. 28Ibid., at para. 5.