Ontario Supreme Court
Ashworth v. Ashworth
Date: 1995-06-27
Agnes Rebecca Ashworth
and
Ronald John Ashworth
Ontario Court of Justice (General Division) Haines J.
Heard - April 25 and 26, 1995.
Judgment - June 27, 1995.
T. Stomp, for petitioner.
E. Perfect, for respondent.
(Doc. Windsor 91-DV-23050)
[1] June 27, 1995. HAINES J.: - This is a divorce action. The only issues outstanding are the date of separation and the claim by the petitioner for support.
[2] The parties were married October 6, 1984. There are no children of this marriage although Mrs. Ashworth has a daughter, Alicia Rene Lewis, born October 21, 1975.
[3] The petitioner is now aged 43. She completed high school with a Grade 12 diploma in June 1969. The evidence with respect to her work history up to the time of the birth of her daughter is somewhat unclear but it appears that she was employed during some of that time as a clerical person with both a furniture retailer and a drywall company and also worked part time as a waitress. Mrs. Ashworth enrolled at the University of Windsor in 1976 but withdrew after one year claiming an inability to cope financially. For three years subsequent to that, she supported her daughter and herself with the assistance of Mother's Allowance. In 1981, she successfully completed a one year course for dental assistants and found employment with a dentist. Mrs. Ashworth testified that she left that employment after three weeks because of problems with her back, but in cross-examination was referred to her examination for discovery where she had made no reference to any difficulties with her back indicating instead that she had quit that job because it was not financially worth her while. She said it was costing her more in babysitting expenses for her daughter than she was earning. Mrs. Ashworth did testify that she enjoyed the work of a dental assistant but in the years following has made no effort to pursue that line of work.
[4] From 1981 until her marriage to the respondent, Mrs. Ashworth received Mother's Allowance benefits which she supplemented with income she earned from babysitting for others. Mrs. Ashworth did not work outside the home during the marriage but continued to earn approximately $75-$100 per week from babysitting. She also earned modest amounts from sewing and cake baking that she did in her home from time to time.
[5] The petitioner claims to suffer from longstanding health problems which include migraine headaches and arthritis in both her right shoulder and back. Sometime in 1977 she had an episode where she experienced numbness down one side of her body. She underwent a diagnostic spinal tap as part of the medical investigation at that time and relates the onset of headaches to that procedure. Unfortunately Mrs. Ashworth was also diagnosed with multiple sclerosis in 1993.
The whole of the medical evidence before me is contained in two reports from Mrs. Ashworth's family physician. The first report dated June 10, 1991 reads:
Rebecca Ashworth is a patient of mine, who has two major problems. She has recurrent migraine headaches which can be quite disabling at times and she also has significant pain in her right shoulder which appears to be arthritic in nature. She requires the use of Sandomigraine for prophylaxis of migraines and uses Tylenol 3 for the shoulder pain.
She states that she has lost a job before because of the migraine problem. Hopefully, we can get this under control and down the road she may become more employable, however, at the time being she might have great difficulty holding down a job.
[6] The second report dated May 11, 1994 reads:
My patient, Mrs. Ashworth, is a 42-year-old female, with a history of migraines and back pain, for approximately the last 15 years. Evidentially, she had been having some confusing neurological symptoms, and in order to rule out multiple sclerosis the doctors had done a spinal tap on her. Following this, she continued to be bothered by headaches and back pain, until the present time. Approximately one year ago, she again started to develop symptoms that would suggest multiple sclerosis. These symptoms were investigated and it has been discovered that Mrs. Ashworth does have multiple sclerosis. She at present, is being bothered by both blurred vision and weakness. She continues to have much back pain and recurrent headaches. She has been unemployed for over a year now, and I do not feel that she will likely be able to return to work, unless there is a reduction in her symptomatology. She at present, is not employable and has a great deal of difficulty doing many of the tasks of daily living.
It is possible that if this disease progresses, as multiple sclerosis can, she will become much more incapacitated in the future and may become totally disabled. This however, depends upon the progression of this disease, which is known to be highly unpredictable. It will however, progress, to which point no one knows.
[7] In the fall of 1991, the petitioner was elected to be council for the community of St. Clair Beach and served a three year term ending in October of 1994. She testified that she did not seek re-election because of her deteriorating health. During her term in office Mrs. Ashworth received an annual stipend of $5,000.
[8] The respondent, an elementary school teacher, is 48 years of age. He graduated from high school in 1966, attended teachers college the following year and commenced his teaching career in September 1967. During the 1970's he obtained Bachelor of Arts and Master of Education degrees while he continued to work. His current annual salary is $63,319.
[9] Prior to his marriage to the petitioner, Mr. Ashworth owned a condominium unit. That property was sold and the proceeds were used in the purchase of the matrimonial home at 318 St. Marks Road, St. Clair Beach. The petitioner made no financial contribution to that purchase.
[10] Mr. Ashworth was aware that Mrs. Ashworth had some health problems prior to their marriage. He confirms that she complained of headaches from time to time during the marriage and, on occasion, experienced problems with her back.
[11] It is apparent from the evidence of both parties that this was not a happy marriage. Problems arose early on, and late in 1986 the parties sought the assistance of the first of a series of marriage counsellors. Counselling continued, intermittently, through to November of 1990 although the respondent maintains that the counselling he received subsequent to April of 1990 was not for the purpose of rehabilitating his relationship with the petitioner but was intended to help him gain insight into the reasons for the failure of this and an earlier marriage. Mr. Ashworth maintains that by April of 1990, he and Mrs. Ashworth were living separate and apart although they maintained the same residence. By that time, he claims they rarely communicated and participated in almost no activities together apart from the occasional family function. He says there was no sexual contact and that each was making their own meals and attending to their own laundry. Some time during 1990 Mr. Ashworth sought the advice of a lawyer on the financial implications of separation but, at that time, decided against retaining counsel believing that he and the petitioner might reach some financial accommodation on their own.
[12] Mrs. Ashworth's view of the marriage is not so bleak. She admits to there being problems but denies those problems ever achieved the dimensions claimed by Mr. Ashworth. She admits to sleeping on the couch, but only periodically, and claims that the reason for doing so was her back pain and not a desire on her part to terminate the conjugal relationship. She says she only neglected the respondent's laundry when he failed to deposit it into the proper hamper and maintains that she continued to regularly prepare meals for him up to May 24, 1991 when she says Mr. Ashworth made it clear that he was no longer prepared to provide money for groceries for the household.
[13] The respondent relies on Buller v. Buller (1979), 26 O.R.(2d) 92 (Co. Ct.). At p. 98 Clements Co. Ct. J. concluded:
The indicia of the breakdown of the partnership and the determination that the spouses are separated though under the same roof can be found when the following circumstances are present:
(1) The spouses occupy separate bedrooms;
(2) Absence of sexual relationships;
(3) Little, if any, communication between the spouses;
(4) Wife performing no domestic services for the husband or the husband refusing to assist in household maintenance for the wife;
(5) Eating meals separately;
(6) No social activities together.
[14] The respondent submits that all of these circumstances existed as of April 1990 and argues, therefore, that I should find that he and the petitioner were living separate and apart from that time forward.
[15] The petitioner submits that the evidence does not support the respondent's position and refers me to Newman v. Newman (1970), 2 R.F.L. 219 (Ont. C.A.) where at p. 220 Aylesworth J.A. accepted the following reasons of the trial judge in concluding that the parties were not living separate and apart:
Here I have concluded, until he left, in my view there was still one household and there was still, on the facts, a matrimonial relationship of a sort, and while not a happy one it was still in existence, and if one were looking at it (and again I am dealing with the question of fact, not law), I think they could more aptly be described as an unhappy married couple rather than a separated one, and an unhappy household rather than a separated one.
[16] In my view, the above passage aptly describes the circumstances of the petitioner and respondent while they continued to reside in the matrimonial home. I do not accept that the breakdown of the relationship was as complete as the respondent contends. From the evidence before me I have no difficulty accepting that the parties had a very unsatisfactory relationship for some time even prior to April 1990, but I am unable to find that either party had a settled intention to terminate the marriage until July 11, 1991 when the petitioner initiated these proceedings. I therefore conclude that the parties separated July 11, 1991.
[17] I turn next to the issue of spousal support. The relevant provisions of s. 15 of the Divorce Act (1985) are:
(2) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring one 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
(a) the other spouse;
(b) any or all children of the marriage; or
(c) the other spouse and any or all children of the marriage.
…
(5) In making an order under this section, the court shall take into consideration the condition, means, needs and other circumstances of each spouse and of any child of the marriage for whom support is sought, including
(a) the length of time the spouses cohabited;
(b) the functions performed by the spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of the spouse or child.
…
(7) An order made under this section 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 the obligation apportioned between the spouses pursuant to (8);
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) insofar as is practicable, promote the economic self-sufficiency of each spouse within a reasonable amount of time.
[18] A review of the work history of the petitioner from the time she left high school until her marriage to the respondent in 1984 indicates that she was not a person intent upon pursuing a career. She did not hold any particular employment for longer than a year, and although she made some attempts to upgrade her skills she did not persist with any of those initiatives. I conclude that her career potential was settled prior to the marriage and find that her employability and income earning capacity were not impaired or jeopardized by the marriage. The respondent was content that the petitioner not work outside the home but understood that she would assume responsibilities for running the household while he undertook their financial support. It is apparent that much of the discord in the marriage arose out of his perception that the petitioner was failing to fulfil her part of the bargain.
[19] The petitioner derived substantial financial advantage from the marriage. She made no financial contribution to the purchase of the matrimonial home but shared equally, as provided by law, on disposition of that home. Her share of the net proceeds was $47,000. With the finding that the parties separated on July 11, 1991, the petitioner will also be entitled to a substantial payment from the respondent upon equalization largely as a result of the value of the respondent's pension. With the exception of a short period when the respondent was on strike, he has paid the petitioner interim support of $400 per week since their separation.
[20] I accept, on all the evidence, that during the marriage and for several years prior to the marriage, the petitioner had some health problems associated with headaches, shoulder pain and back pain. I do not accept that those health problems were particularly disabling or that they contributed to the vocational decisions made by the petitioner prior to the marriage. I do find that Mrs. Ashworth is now afflicted with multiple sclerosis and that as a result it is highly unlikely that she will be able to make any meaningful contribution toward her own support through gainful employment.
[21] The petitioner's daughter is employed and resides with the petitioner. There was no relationship of any permanence between Mrs. Ashworth and Alicia's father. He has not contributed to the support of his daughter and Mrs. Ashworth has not pursued him for such support. Although Mrs. Ashworth testified that she does not know her daughter's current income, it seems that it is relatively modest and Mrs. Ashworth has not yet asked her to contribute to household expenses. In any event, counsel advise that there is no issue concerning support for Alicia.
[22] Counsel for the petitioner submits that her client is entitled to long-term support from the respondent on the basis of the provisions of s. 15 of the Divorce Act (1985) and directs me to a number of cases where spouses have been awarded support in circumstances where they are unable to work because of illness or disability: Garbutt v. Garbutt, (1993), 84 Man. R. (2d) 237 (Q.B.); Colletta v. Colletta, (1993), 50 R.F.L. (3d) 1 (Ont. C.A.); Mahoney v. Mahoney, (1994), 3 R.F.L. (4th) 235 (Ont. Gen. Div.); L. (M.) c. N.(O.), (1992), 103 D.L.R. (4th) 94 (C.A. Qué.).
[23] It is accepted, since Moge v. Moge, (1992), 43 R.F.L. (3d) 345 (S.C.C.) that there is no requirement to demonstrate a causal link between a debilitating illness and the marriage in order to establish entitlement to support. In Moge at p. 373 L'Heureux-Dubé J. determined that:
the focus of the enquiry when assessing spousal support after the marriage has ended must be the effect of the marriage in either impairing or improving each party's economic prospects.
[24] In the cases to which I was referred by Ms. Stomp the courts examined the respective circumstances and contributions of the spouses and although the facts varied, the conclusions were consistent in finding some deprivation of vocational opportunity or some positive contribution toward the economic advancement of the other spouse during the course of the marriage. Counsel for the respondent contends that the evidence in this case does not support any such findings and I agree. On the contrary, Mr. Perfect argues that the petitioner has derived economic advantage from the marriage to an extent that is substantially disproportionate to her contribution and again, I agree.
[25] Although the issue of illness or disability was not germane to the circumstances of the parties in Moge, L'Heureux-Dubé J. does make the following comment at pp. 386-387:
The Act refers to economic advantages and disadvantages flowing from marriage or its breakdown…Sections 15(7)(a) and 17(7)(a) of the Act are expressly compensatory in character while ss. 15(7)(c) and 17((7)(c) may not be characterized as exclusively compensatory. These latter paragraphs may embrace the notion that the primary burden of spousal support should fall on family members, not the state. In my view, an equitable sharing of the economic consequences of divorce does not exclude other considerations, particularly when dealing with sick or disabled spouses. While the losses or disadvantages flowing from the marriage in such cases may seem minimal in the view of some, the effect of its breakdown will not, and support will still be in order in most cases.
And then on p. 387 writes;
The four objectives set out in the Act can be viewed as an attempt to achieve an equitable sharing of the economic consequences of marriage or marriage breakdown. At the end of the day, however, courts have an overriding discretion and the exercise of such discretion will depend on the particular facts of each case, having regard to the factors and objectives designated in the Act.
[26] If Mrs. Ashworth were not ill, I would have concluded, "having regard to the factors and objectives designated in the Act" that an order for spousal support was not warranted. But she is ill and s. 15(5) of the Act requires that the court take into account the "condition" and "other circumstances" of each spouse which must include consideration of any illness or disability that affects the economic prospects of either spouse. I conclude, therefore, that Mrs. Ashworth is entitled to support; however, given the length of the marriage, the economic benefits that have accrued to the petitioner from the marriage and the absence of any financial disadvantage to her that can be attributed to the marriage, it would be unreasonable to expect or require the respondent to assume sole responsibility for the financial support of the petitioner indefinitely. Notwithstanding these observations, I do not consider it appropriate to make a time limited order for support in the face of the rather pessimistic medical prognosis indicating that Mrs. Ashworth's need is long term. Having attempted to analyse and consider the wide variety of factors as mandated by the Act and interpreted in Moge, I have concluded that a monthly payment by the respondent of $1,000 is a reasonable sum for him to pay to the petitioner for support.
[27] In the result, I am satisfied that the petitioner is entitled to a divorce judgment on the basis of the evidence before me and order that the respondent pay to the petitioner the sum of $1,000 per month for spousal support commencing on the 1st day of July, 1995 and continuing on the 1st day of each month thereafter. Counsel are directed to make their submissions as to costs in writing within 30 days.
Application granted.
