Bildy v. Bildy

  • Document:
  • Date: 2018

Bildy v. Bildy

42 O.R. (3d) 737

[1999] O.J. No. 501

Docket No. C27449

Court of Appeal for Ontario

Finlayson, Osborne and Moldaver JJ.A.

February 22, 1999

 

Family law — Support — Spousal support — Parties married for 13 years — Husband earning substantial income from law practice — Wife having grade 12 education and having worked as secretary before birth of children — Wife having been out of workforce for over eight years — Children aged 11 and nine — Husband ordered to pay spousal support in amount of $30,000 per annum for five years — Trial judge erring in over-emphasizing self-sufficiency in circumstances — Order varied on appeal — Support to continue for further four years.

The parties were married for 13 years. The wife was 39 years old and the husband was 40. The husband was a partner in a major law firm. In 1996, his gross practice income was $251,436. The wife had a grade 12 education. She had worked as a secretary before the birth of the parties’ eldest child, never earning more than $27,000 per annum, and had not worked outside the home for over eight years. The wife was granted custody of the two children of the marriage, who were nine and 11 years old. The trial judge ordered the husband to pay child support of $30,000 per annum for each child and spousal support of $30,000 per year for a period of five years. The wife appealed.

 

Held, the appeal should be allowed.

 

The wife’s job expectations contrasted starkly with the husband’s potential. The goal in this case was to encourage her to be self-sufficient, while still recognizing that support payments would be necessary from the husband for some time in the future. The figure of $30,000 per year would not in itself make the wife self-sufficient, and the children would require continuous supervision by the wife until they were in their late teens. The trial judge erred in placing too much emphasis on self-sufficiency. To extend the period during which the husband was required to pay spousal support by a further four years would give adequate recognition to the need to encourage the wife to take positive steps towards self-sufficiency by finding employment.

 

Cases referred to

Linton v. Linton (1990), 1 O.R. (3d) 1, 42 O.A.C. 328, 75 D.L.R. (4th) 637, 30 R.F.L. (3d) 1, 41 E.T.R. 85n

 

Statutes referred to

Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 15(5), (7) Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.)

 

APPEAL from an award of spousal support.

 

William R. Clayton, for appellant.

James G. McLeod and Aldred A. Mamo, for respondent.

 

The judgment of the court was delivered by

FINLAYSON J.A.: — Carol Dianna Bildy appeals an award of spousal and child support by the Honourable Mr. Justice Beckett of the Ontario Court (General Division Family Court) dated November 26, 1997.

The parties settled the corollary issues in this dispute, including custody, access, quantum of child support and quantum of spousal support. It was agreed that the appellant would have sole custody of the two children of the marriage. The respondent would have access as defined in the minutes of settlement and would pay child support of $30,000 per year for each child. He was also to pay the appellant $30,000 per year in spousal support for a total of $90,000 per year in support payments. Counsel before us agreed that the provisions of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) apply as they were prior to May 1, 1997. The effect is that the respondent can deduct the full amount of the support payments from his income and the appellant must pay income tax on the full amount of the support payments she receives.

To the extent that it was not fully agreed, it was determined at trial that the appellant was to pay $43,165.31 for the equalization of net family property. This amount was to be payable in monthly instalments of $500, commencing April 15, 1997. At this rate, it would take between seven and eight years to complete the equalization payment. The only unresolved issue was whether the payments of spousal support were to be limited as to time. The trial judge accepted the argument of the respondent on this issue and ordered that all spousal support payments were to commence on April 30, 1997 and terminate on April 30, 2002. He also awarded the respondent the costs of the trial on a party and party basis. The time-limited spousal support payments for the appellant and the disposition of costs are the issues in this appeal. The appellant is 39 years old, and the respondent is 40. They were married on July 17, 1982 and separated on February 5, 1995. They have two children, Stefan born June 1, 1988 and Michael born July 10, 1990.

The respondent is a partner in a major law firm with offices in London, Ontario. He holds an LL.B. from Osgoode Hall Law School and an LL.M. from Cambridge University, England. For several years, he has received a substantial six-figure income from his practice, with a 1996 gross practice income of about $251,436.34. At the time of trial the respondent had a gross practice income of $240,000.

The appellant had not worked outside of the home for over eight years, since the oldest child was born. Her role had been full-time mother and homemaker. Her formal education ended with grade 12. She had worked at a variety of secretarial jobs, topping out at $27,000 per annum while working at an oil company in Calgary. She left that job when she and her husband moved back to London. The respondent took up a position with a local law firm and shortly afterwards became a founding lawyer at the London offices of his present law firm. The respondent made it clear in his evidence that, following separation, he did not expect the appellant to seek employment while either of the children was still at home. The youngest child would have started full-time at school in September 1996, just six months before the trial and over a year and a half after separation.

The appellant is a devoted mother and spends considerable time with the children in their extra-curricular activities, especially in sports. With a grade 12 education, her job expectations contrast starkly with the respondent’s potential. There was no evidence that there were jobs available that the appellant could have taken. The trial judge found only that the respondent had given the appellant a list of names of possible employers, and she had not followed up. The trial judge, in arriving at the conclusion that this was a proper case for time limited spousal support payments stated:

There is no doubt that Mrs. Bildy is a devoted mother and spends a considerable time with the children in their extra- curricular activities especially in sports, but so too does Mr. Bildy. He also appears to be a devoted parent. He has the children every second weekend as well as one overnight during the week. I get the impression from the Applicant’s evidence and the manner in which she answered questions that she continues to harbour considerable bitterness and resentment towards Mr. Bildy and for that, or perhaps other reasons, is not anxious to return to work and become self-supporting. I was not assured by her evidence that she has any intentions of doing so in the near future or that she feels any obligation to do so. She was, no doubt, a very competent secretary with both London Life and Norsen.

One would have expected that she might have made inquiries with her former employer, London Life. Although Mr. Bildy made it clear in his evidence that following separation, he did not expect her to seek employment while either of the children was still at home, he now takes the position that she has an obligation to make some reasonable efforts to become self-supporting. As the trial judge recognized, the support payments to the appellant are not overly generous and, in my opinion, cannot on their own make the appellant self-sufficient. The reality is that at the present time the appellant is receiving $90,000 per year in support payments for both herself and the children and has the burden of paying the respondent $6,000 per year to satisfy the equalization payment.

It is unfortunate that this matter was presented to the trial judge with such limited options. On this record, the appellant has never earned as much as $30,000 a year and it is acknowledged that that figure by itself would not make her self-sufficient. The goal in this case must surely be to encourage her to be self-sufficient, while still recognizing that support payments will be necessary from the respondent for some time in the future. With respect, the trial judge was in error in placing so much emphasis on self-sufficiency in this case. As was said by Osborne J.A. in Linton v. Linton (1990), 1 O.R. (3d) 1 at pp. 28-29, 30 R.F.L. (3d) 1 at pp. 35-36:

The objective of self-sufficiency must be assessed in the context of the marriage, particularly in a marriage involving a long period of cohabitation. To do otherwise is to recognize inadequately the economic value of the functions of child care and household management, and the economic disadvantages accruing as a result of a long-term absence from the work-force. . . .

. . . In my view, the provisions of s. 15 [of the Divorce Act] require both need and self-sufficiency to be considered as above stated. The “once a secretary always a secretary” support model is not reasonable in a marriage of long duration. It does not adequately address the factors and objectives set out in subss. 15(5) and 15(7).

. . . Although I acknowledge that self-sufficiency may lead to a clean break, it must be remembered that the objective of self-sufficiency, as referred to in s. 15(7)(d), is qualified. Thus, the clean break approach to support must be viewed as having a limited legislative underpinning.

This was a marriage of 13 years duration and the children are presently 11 and nine years of age. They will require continuous supervision by the appellant until they are in their late teens. Additionally, the spousal support payments are not overly generous in the first place and are subject to the obligation of the appellant to pay the equalization payment until 2004. In my view, an order for the continuation of the $30,000 spousal support payment until the year 2006 gives adequate recognition to the need to encourage the appellant to take some positive steps towards self-sufficiency by finding employment. At that time, either of the parties should have the right to review the quantum of the support payments.

Accordingly, I would allow the appeal, and vary the order of Beckett J. to provide that the spousal support payments of $30,000 a year are to commence on April 30, 1997 and terminate on April 30, 2006. At that time, either party may apply to the court to reconsider the appellant’s entitlement to support and any continuation of support. The quantum of support, if any, should be decided in light of all of the circumstances as may then exist and upon the application of s. 15(5) and (7) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). There should be no costs to either party with respect to the proceedings before Beckett J.

I would allow the appellant her costs of this appeal.

 

Appeal allowed.