Amusing Canadian Court Judgment

(q) final conclusion on spousal support

[210] While Larry’s access-conduct has largely reflected nothing more than inept parenting, Catherine’s parental-alienation behaviour has been evil. Is there a remedy?

[211] Dollars cannot replace the father-daughter relationship that Catherine has destroyed. However, in the circumstances of this case, justice has only a Hobson’s choice. Catherine’s alienation of Taylor and Larry must be condemned and, an effective method of expressing that condemnation, is by way of a reduction in spousal support.

[212] Accordingly, the spousal support to which Catherine would otherwise be entitled shall be reduced to one dollar monthly.

IV RESULT

[213] Despite the involvement of Niagara Family and Children’s Services, Ms. Katz, Mr. Leduc and the court, the parties repeatedly have shown that they are immune to reason. Consequently, in my decision, I have tried ridicule as a last resort.

[214] I point out for the benefit of the parties that, these proceedings being an effort to vary their separation agreement, those provisions that I have not changed remain binding upon them and any future breach may have legal consequences. In other words, my decision does not replace the entire separation agreement. The matrimonial responsibilities and obligations of the parties are now encompassed by the separation agreement and by the orders that I now make:

1. The Application by Larry is dismissed.

2. The Claim by Respondent of Catherine is allowed in part.

3. The separation agreement is varied as follows:

(a) The words “Notwithstanding the fact that the parties have joint custody,” in paragraph 7.2 of the separation agreement, shall be deleted.

(b) The contents of paragraph 8 of the separation agreement (access) shall be deleted. In their place, access by Larry to Brandon shall be as set out in paragraph [125] above. The separation agreement, therefore, shall be silent as to access to Taylor.

(c) The contents of paragraph 13.1 of the separation agreement (child support) shall be deleted and replaced with the following:

(i) Based on an income of $53,000 in 2008, Larry shall pay Guidelines table child support for 2008 in the sum of $798 monthly for the two children, payable on the first of each month commencing January 1, 2008;

(ii) Based on an income of $57,690 in 2009, Larry shall pay Guidelines table child support for 2009 in the sum of $866 monthly for the two children, payable on the first of each month commencing January 1, 2009;

(iii) Based on an income of $81,000 in 2010, Larry shall pay Guidelines table child support in the sum of $1,171 monthly for the two children, payable on the first of each month commencing January 1, 2010 until otherwise ordered.

(d) The contents of paragraph 6 (spousal support) are deleted and replaced by a provision by which Larry shall pay spousal support to Catherine in the sum of one dollar on the first of each month, commencing on January 1, 2010 and ending on June 1, 2012.

(4) Arrears of Guidelines table child support are fixed at $19,920 as of September of 2010.

(5) All other claims in the Claim by Respondent (but for costs) are dismissed.

[215] As for costs, I have not heard submissions on that issue. My strong preliminary view is that success in these proceedings has been mixed such that the parties should bear their own costs. However, not having heard argument on the matter, I do not feel that I am entitled to order no costs. If either party wishes to seek costs they should obtain a date from the trial co-ordinator for that purpose. If neither does so within 60 days of the date of these Reasons, the final order on costs shall be as I have indicated.

[216] A word must be said about the children’s lawyer, Mr. Leduc. I am indebted to him for his effective questioning of the witnesses and wise and helpful submissions. I expect that this was a trying experience for him. Throughout his year-long involvement in the case, he was contacted on numerous occasions by the parties and by the children. While generally siding with Larry’s position, Mr. Leduc, nonetheless, conducted himself in a fair-minded manner, impartial to the parties, always alert to the best interests of the children and in the highest traditions of the Office of the Children’s Lawyer.

Their mother, according to Sam, “is not in the picture” and has abandoned the children.

[2] At one point in the trial, I asked Catherine: “If you could push a button and make Larry disappear from the face of the earth, would you push it?” Her I-just-won-a-lottery smile implied the answer that I expected.

[3] I am prepared to certify a class action for the return of all wedding gifts.

[4] It is likely that, in the period 2004-2006, Larry was having one or more extramarital affairs. Interestingly, Larry’s father was married five times, in addition to going through several relationships. Perhaps there is an infidelity gene.

[5] The home in which Larry and Sandra live is jointly owned by the two of them. Larry did not reveal this fact in his financial statement filed in these proceedings.

[6] This is always a telltale sign that a husband and wife are drifting apart.

[7] The courtroom energy level in a custody/access dispute spikes quickly when there is evidence that one of the parents has a Hells Angels branch in her family tree. Certainly, my posture improved. Catherine’s niece is engaged to a member of the Hells Angels. I take judicial notice of the fact that the Hells Angels Motorcycle Club is a criminal organization (and of the fact that the niece has made a poor choice).

[8] When one considers that the parties then had been separated for a mere four months and that Larry was exercising access, this is a remarkable request. What does it tell us about Catherine?

[9] Donna is a devotee of the literary device known as, “repetition for emphasis.” I do not know whether Donna is the niece who is engaged to the Hells Angels member. If she is, they may be more compatible than I initially surmised.

[10] Pursuant to s. 35(2) of the Family Law Act, R.S.O. 1990, Chapter F.3, once a separation agreement is filed with the court, a provision for support may be enforced and varied as if it were an order of the court.

[11] It turned out to be lower by only a few hundred dollars.

[12] I accept the testimony of Catherine that this date is a typographical error. It should have read “June 1, 2007,” as this is the date that Larry commenced his child support payments.

[13] This also is an error. Larry was not unemployed. He was working for “a temp service” between his employment with two waste management companies.

[14] Assuming a sale for $199,000 and disposition costs at 6%, the net equity would be $24,000 of which Larry would have been entitled to $12,000. I accept the evidence of Catherine that it was in consideration of this fact that the separation agreement, although silent on the point, provided for spousal support of only one dollar for up to three years.

[15] On September 12, 2008, in the course of a case conference, a consent order was made by which Catherine was to have her employment pension valued.

[16] Although Larry was the applicant in the Application, he is shown in the title of proceedings as respondent because the first title used (being the one from Catherine’s change motion, where she is the applicant) is repeated ever-after.

[17] Again, because the title of proceedings is that of the change motion, Catherine is shown as the applicant but, in truth, she is the responding party in Larry’s Application.

[18] I am aware that, under the Family Law Rules, Application, Answer – Claim by Respondent and Reply do not begin with capital letters. However, I prefer otherwise.

[19] In fact, they were represented by lawyers through 12 court attendances over two years (according to the endorsement section of the continuing record), during the babysitting phase of the proceedings and before the heavy lifting began. This case should have been identified by the lawyers in the beginning as one that was impossible to settle and pushed quickly to trial, without the endless toing and froing present in typical cases. The legal fees for the 12 attendances would have been better spent on the trial.

[20] A further testament to the hopelessness of the custody/access situation is that the parties and their common-law spouses are unable to jointly attend Brandon’s ball-hockey games without erupting into mutual conflict. This is very stressful for Brandon.

[21] A finger is worth a thousand words and, therefore, is particularly useful should one have a vocabulary of less than a thousand words.

[22] When the operator of a motor vehicle yells “jackass” at a pedestrian, the jackassedness of the former has been proved, but, at that point, it is only an allegation as against the latter.

[23] In recent years, the evidence in family trials typically includes reams of text messages between the parties, helpfully laying bare their true characters. Assessing credibility is not nearly as difficult as it was before the use of e-mails and text messages became prolific. Parties are not shy about splattering their spleens throughout cyberspace.

[24] These do not strike me as the statements of someone who is concerned about precipitating a Hells Angels house call.

[25] I confess that I sometimes permit a lengthier hiatus than the schedule of the court might otherwise dictate, in order to afford the parties an opportunity to reflect on the trial experience, come to their senses and resolve their difficulties like mature adults. It is touching how a trial judge can retain his naivety even after 15 years on the bench.

[26] The New Shorter Oxford English Dictionary defines “dickhead” as “a stupid person.” That would not have been my first guess.

[27] And all of these prohibitions by Catherine are taking place with a trial date already inscribed on her kitchen calendar.

[28] I am uncertain whether this would be considered a hand-held communication device, now illegal while operating a motor vehicle, under recent amendments to the Highway Traffic Act.

[29] It takes a special level of audacity to utter threats under the roof of the Court House.

[30] I gather that this is Larry’s version of the Big Bang Theory.

[31] Section 51 of the Family Law Act defines “domestic contract” to include a separation agreement.

[32] The pension arises from Catherine’s seven years of employment as a health-care aid at a nursing home (1996-2003). The employment she commenced in 2003 with the District School Board of Niagara does not provide pension benefits.

[33] I do not know why courts find it necessary to alter the meaning of words. One would think that if the legislators had intended “shocking” they would have used “shocking.”

[34] And, despite this knowledge, Catherine has actively sought to create conflict between Taylor and Larry.

[35] On June 12, 2009, a temporary order was made requiring Larry to pay monthly child support of $563 based on his representation that he would earn $38,000 in 2009. He never explained why he was off by 34%.

[36] One might question the purpose of obligating warring spouses to discuss s. 7 expenses before they are incurred. The answer is that the separation agreement makes it a requirement to do so. I will not engage in the speculative exercise of determining what Larry’s response would have been, or reasonably should have been, had he been consulted in advance (under the separation agreement, to be an eligible special or extraordinary expense, it was unnecessary for Larry to agree with the expense – consultation, not consent, was required).



[37] “Should” has been interpreted to mean “must.”

[38] Although some authorities appear to distinguish need and self-sufficiency, I view them as synonymous. If one has need, one is not self-sufficient; if one is self-sufficient, one is not in need.

[39] Bracklow v. Bracklow 1999 CanLII 715 (S.C.C.), (1999), 44 R.F.L. (4th) 1 (S.C.C.) at 16.

[40] Bracklow, supra, at 21.

[41] Bracklow, supra, at 22.

[42] Why conservative? As I have already pointed out, Catherine quit full-time employment (with pension benefits) before separation and replaced it with part-time work (and did so for reasons unassociated with her role or duties in the marriage). She has not taken steps or even made inquiries about improving her position in the job market and she is living common law in a brief but stable relationship with a man earning an income comparable to that of Larry.

[43] For the sake of interest, I point out that the range of monthly spousal support under the SSAGs is $0-$0 if Larry’s annual income were to be $64,000, $0-$174 if $68,000, $0-$273 for $70,000 and $0(low)-$146(mid)-$477(high) at $74,000, with the income for Catherine being as found in her sworn financial statement.

[44] Although the commencement date for the calculation of spousal support is October 1, 2006, and the 5.5 years should be measured from that date, for convenience, I have used January 1, 2007 as the first payment date. Therefore, the six months of the remnant year would begin on January 1, 2012.

[45] And “shocking,” as I pointed out in an earlier footnote.

[46] In Morey v. Morey (1978), 8 R.F.L. (2d) 31 (Ont. Prov. Ct.), the court, dealing with s. 18(6) of the Family Law Reform Act (which is worded identically to s. 33(10) of the Family Law Act), outlined a number of guiding principles. Those same principles were relied on in B.(S.) v. B.(L.) reflex, (1999), 2 R.F.L. (5th) 32 (Ont. Sup. Ct.). However, in my respectful view, these principles do not materially add to an understanding or application of s. 33(10).

[47] I point out that I am not concerned with “parental alienation” as a psychological or a psychiatric term. My reference to parental alienation is merely factual and reflects the ordinary dictionary meaning of the words: “parental” – “of, pertaining to, or in the nature of a parent”; “alienation” – “the act of estranging or state of estrangement in feeling or affection”: see The New Shorter Oxford English Dictionary.