r v. Barber, 2011 ONSC 1175

CITATION : Barber v. Barber , 2011 ONSC 1175 COURT FILE NO.: 06-FL-1466-1 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) BERNARD BARBER ) ) ) Lorna F. Baldwin, Honey/MacMillan, for the Applicant ) Applicant ) ) - and - ) ) ) DIANNE BARBER ) ) ) Self-Represented ) Respondent ) ) ) ) HEARD: February 17, 2011 DECISION ON MOTION TO CANCEL SPOUSAL SUPPORT LALONDE J. The Basis for the Claim [ 1 ] This is a Motion to vary the spousal support provisions of the final Order of Justice Roy dated January 27, 2009, pursuant to s.17(1) (

a) of the Divorce Act . The parties to this action married in 1974 and separated in 2006. The Applicant is now 58 years old and the Respondent is 59 years old. [ 2 ] Justice Roy’s order incorporated a support provision from a temporary order made by Justice Mackinnon shortly after the date of separation. The parties had signed Minutes of Settlement in July of 2008 and thus, they became final by the order of Justice Roy in January, 2009.

[ 3 ] The order provides for payment of $2100 per month by the Applicant to the Respondent based on the fact that the Applicant was making $69,900 per annum and the Respondent was making $4500 per annum. [ 4 ] In Mr. Justice Roy’s order, there is a provision that spousal support can change if there is a material change in circumstances between the parties. [ 5 ] The Applicant retired after 35 years of employment with Rogers Cablevision on December 1, 2008 and he argues that the fact that he is retired warrants a variation of the spousal support provision of the order of Justice Roy.

Background [ 6 ] The Applicant states that he discovered that his wife had forged his signature on several financial documents between 1996 and 2003, and as soon as that came to his attention, he initiated the separation. The original proceedings were commenced on June 5, 2006. [ 7 ] In her answer to this application, the Respondent denies the forgery. She was formally charged by the police in May, 2008.

Bernard Barber was hopeful that a restitution order would be made in those criminal proceedings, but he also sought damages in the family law proceedings. [ 8 ] In July, 2008, the parties engaged in mediation that resulted in settlement of the matrimonial issues. They signed Minutes of Settlement that did not specifically refer to the restitution order. In July, 2008, the Respondent was still denying the forgery.

The Minutes of Settlement resulted in the order of Justice Roy after the Respondent moved for judgment in accordance with those Minutes of Settlement. [ 9 ] In November, 2008, the Respondent pleaded guilty to uttering forged documents. The particulars of her offence are found in the transcript of the proceedings filed at this hearing. Dianne Barber was allowed to take home bank documents for the purposes of obtaining her then husband’s signature. Bernard Barber was unknowingly made financially responsible for large transactions that involved monies borrowed on lines of credit and a mortgage on their cottage.

Dianne Barber was represented before the court by lawyer S. Curran. Through Mr. Curran, the facts surrounding the forgeries were admitted and Madam Justice Alder made a finding of guilt against Dianne Barber. Mr. Barber’s Position The two mistakes that cost Mr. Barber money [ 10 ] Bernard Barber pleads that a first mistake was made in Ontario Court when a restitution order was not made because the court was told that the matter was covered by Minutes of Settlement made three to four months prior to the court hearing in Superior Court.

The Minutes of Settlement did not address the restitution of monies Dianne Barber had obtained through her forgeries. [ 11 ] Dianne Barber, today, denies criminal responsibility of her forgeries and claims that she pleaded guilty on the advice of her lawyer. Mr. Barber’s claim against Mrs. Barber in the amount of $100,000 was never dealt with in the Ontario Court of Justice or in this Court. [ 12 ] Bernard Barber has attempted to have the monthly spousal support payments reduced since January of 2009. Because no case conference had been held, Mr.

Justice Roy granted a final order on January 27, 2009 that dealt with the equalization of the parties’ Net Family Property and he did not touch the adjustment on spousal support even though Mr. Barber had filed a cross-motion asking for a reduction of his ex-wife’s spousal support. This caused Bernard Barber to wait, according to the family law rules, six months before he could get a date for a case conference. A case conference was held before Mr. Justice Smith on September 23, 2009 and he gave a long list of items of disclosure to be supplied by Dianne Barber. Almost one year later, Mr.

Justice Kershman gave Dianne Barber 30 days to comply with Mr. Justice Smith’s order or have her pleadings struck. During that time, namely, January, 2009, to the present February 2011, Bernard Barber was required to pay the full $2100 monthly on his income reduced from $69,900 to $31,659.44, a reduction of 56%. For 25 months, Mr. Barber paid Mrs. Barber $25,200 for 2009, $8000 for 2010 and $1100 for 2011 for a total of $34,300. [ 13 ] Bernard Barber states at paragraph 46 of his affidavit sworn on November 8, 2010: I have been attempting to deal with this matter since January, 2009.

The Respondent has been able to delay and obstruct the normal flow of the litigation process for nearly two years. I believe that my chance of recovering any of the monies the court finds I have overpaid to Dianne Barber throughout 2009 and 2010 is remote.

What the parties received in equalizing their Net Family Property (N.F.P.) [ 14 ] Justice Roy’s order provides that the Applicant will make an equalizing payment of $154,500 to the Respondent. [ 15 ] The Respondent’s one half of the Applicant’s pension, namely, $80,000 was satisfied by a rollover from the Applicant’s pension, grossed up to $103, 896.10 to provide for the fact that it would be taxed in the hands of the Respondent. [ 16 ] Solicitor John Kebe was holding the proceeds of sale of the house and the cottage in trust for the parties totaling approximately $236,000.

The Respondent Wife received her half of this; $118,000 plus $74,500 (the remainder of her entitlement in the equalization) for a total of $192,500 cash, plus the pension rollover. [ 17 ] The Applicant Husband received his half minus the $74,500 or $43,500 plus his half of the pension. [ 18 ] The exhibit book contains the N.F.P. of both clients dated July, 2008. Both parties valued the pension net at $153,436.

[ 19 ] The exhibit book contains Mr. Martel’s opinion as to the value of the Applicant’s pension. $153,436 is the net value of the pension assuming that Mr. Barber retired at age 65. He states that Mr. Barber has acquired a pension entitlement on the valuation date of $2,583.27 per month or $30,999.24 per year. [ 20 ] Correspondence received from the pension trustees at the time of Mr. Barber’s retirement shows that his pension benefit is $3,162.45 per month, or $37,949.40 per annum. Mr. Barber worked for three years after Separation [ 21 ] Mr.

Barber’s pension increased by $6,950.16 per annum after the valuation date of April 1, 2006. This represents an increase of 19% which has not been equalized. Is Mrs. Barber entitled to one half of this increase, as spousal support? 8.5% of Mr. Barber’s current pension benefit of $31,369.44 per annum equals $2,666.41 per annum or $222.20 per month. If a pro-rata calculation is done, Mr. Barber who worked for Rogers for 35 years, 31.6 years while married and 3.34 while separated, Mrs. Barber could be entitled to $124.74 per month under this second method of calculation for the unequalized portion of Mr.

Barber’s pension earned post separation. [ 22 ] Counsel for Mr. Barber argues that a material change in circumstances has taken place. Paragraph 6 of Justice Roy’s order states that the $2100 per month spousal support order is premised on the Applicant making $69,900 per annum and the Respondent making $4500 per annum. Mr. Barber’s 2010 income was reduced to $31,369.44; all of it came from his pension. This is a reduction of 56% in employment income. The Respondent has caused many Delays that resulted in Unfairness to Mr. Barber [ 23 ] Counsel for Mr. Barber points out that Mr.

Barber’s affidavit reveals a history of delay in having this variation proceeding adjudicated by this court in a timely fashion. • First, Mrs. Barber adopted the position that she was entitled to survivor benefits under his pension plan, even though survivor benefits are not mentioned in Mr. Justice Roy’s order; • This resulted in Mr. Barber being retired throughout 2009 but not in receipt of his pension, since his employer would not process Mr. Barber’s pension application without a waiver from Dianne Barber. As a consequence, Mr. Barber paid spousal support to Mrs.

Barber at the rate ordered throughout 2009 with monies borrowed from his sister, namely, $25,000. Mr. Barber who worked for Rogers for 35 years and who retired on December 1 st 2008 only began to receive his pension payment on January 1, 2010. • Mrs. Barber did not appear for questioning as ordered by Justice Smith, on February 8, 2010; • Mrs. Barber did not comply with the disclosure ordered by Mr. Justice Smith until ordered to do so by Mr. Justice Kershman on July 8, 2010; • Mrs. Barber did not respond to inquiries to fix a second questioning date throughout the months of August and September, 2010; • Mrs.

Barber only advised that her solicitor was getting off the record on September 30, 2010 and did not forward the executed Form 4 until October 29, 2010, and was unavailable for a second questioning date set for November 8, 2010; • Mrs.

Barber, although served with this motion on December 1, 2010, did not file her responding materials on time and came to the case conference held on January 18, 2011 saying she did not know she had to file anything; her financial statement did not have her 2009 income tax return and notice of assessment appended to it as required by the Family Law Rules. [ 24 ] Meanwhile, every month the spousal support accrued at $2100 monthly. Mr.

Barber was forced to bring a motion to refrain the Director of FRO from suspending his driver’s license in March of 2010, and bring a further motion to extend that order in September, 2010. A frustrated Mr. Barber had unilaterally reduced his monthly support leading to accumulated arrears of $14,500. [ 25 ] Arrears pursuant to Mr. Justice Roy’s order are currently $14,500 as shown on the Amended Support Deduction Notice attached to Mr. Barber’s sworn financial statement and not the $22,000 referred to by the Respondent in her affidavit.

The Respondent did not file a Financial Responsibility Office statement at this motion. [ 26 ] In July, 2010, the Respondent received the $103,896.10 that was to be carved out of the Rogers pension pursuant to the order of Justice Roy in paragraph 8. The Respondent’s Accounting of her Share of the N.F.P. and her Credibility [ 27 ] Counsel for the Applicant argues that Mrs. Barber had to account for what she did with the money she received at separation in

2006. Mrs. Barber states in her affidavit that she is in receipt of $524 monthly from her half of Mr. Barber’s pension. From the answers received on what she did with the sum of $192,500 received in cash following the sale of two properties and the cash balance of her equalization entitlement on September 6, 2009, it would seem that Mrs. Barber has spent it all. [ 28 ] Counsel for the Applicant points out that: (

a) In her financial statement sworn September 16, 2009, Mrs. Barber states that she owes Revenue Canada $14, 325.95 which is corroborated by her 2007 and 2008 notices of assessment. Mrs. Barber has not produced her 2009 notice of assessment and claims that she owes $23,296.69 to Revenue Canada. There is no way to determine if Mrs. Barber has inflated her debt. (

b) In September, 2009, Mrs. Barber had a time share unit worth $7000. By her current financial statement, Mrs. Barber no longer is showing ownership of a time share unit. Is she also attempting to reduce her assets? (

c) In March, 2009, Mrs. Barber purchased a 2009 Ford Escape for $37,683.32. While Mr. Justice Smith’s order required Mrs. Barber to give particulars of her vehicle purchase, she has not done so. She maintains that she paid $15,635.32 cash and financed $22,048.07. On her financial statement of September 16, 2009, Mrs. Barber shows no vehicle loan. In her accounting on disposition of assets, she maintained she made 14 monthly payments of $460 for a total of $6440 applied to the principal of the debt. (She had % financing from Ford) This would bring the balance owing to $15,608.07.

Yet, she is claiming in her documents that she currently owes $18,700. [ 29 ] Counsel for the Applicant points out that despite being ordered to do so, Mrs. Barber has not provided receipts to justify monthly dental or car insurance payments. [ 30 ] The Applicant points out that Mrs. Barber was given a conditional sentence on very serious charges of breach of trust by Madam Justice Alder so that Mrs. Barber could find employment in the future. Mrs. Barber has been unemployed since the granting of the order in November, 2008 and has made no efforts to find even seasonal employment.

She promptly negotiated a “lay off” with her employer following her court sentence. [ 31 ] Mr. Barber was ordered to maintain $100,000 term insurance on his life to benefit Mrs. Barber. This order was not complied with as he is not insurable. Mr. Barber filed a letter from T.D. Insurance Life and Health, dated October 1, 2010 which states: on the basis of the facts gathered during the underwriting process, your information fits into a category which cannot be insured, with an additional premium. Mrs. Barber’s Position [ 32 ] Mrs.

Barber states that she is representing herself on this final hearing to determine if her spousal support will either be reduced or cancelled as she has ran out of money to pay lawyers. [ 33 ] Mrs. Barber maintained that she pleaded guilty to the charges of forgery on the advice of her lawyer “to get it over with”. [ 34 ] On the matter of income taxes owing, she said that the original $23,000 was assessed as capital gains on the sale of her cottage. Now she owes $14,000 for the current assessment of income taxes on her income. [ 35 ] Mrs.

Barber claims that she did not give particulars of her loans that came from private individuals as she fears that Mr. Barber will harass them. It would be unfair to the lenders to reveal their names in open court. [ 36 ] Even though she separated from Mr. Barber in 2006, Mrs. Barber claims that she did not seek employment as “I spent my time going to court”. She has worked at a deli counter for a minimum wage in the past and in 2006, left a seasonal job at a golf course. She admitted to problems with alcohol consumption but claims she has been “dry” since March 26, 2006. [ 37 ] Speaking of her vehicle loan, Mrs.

Barber maintains that she financed part of it to re-establish her credit. The $10,000 left in the bank, as shown on her financial statement, is now gone as she paid it out to her last lawyer. [ 38 ] Mrs. Barber denies that she is in a spousal relationship with one Richard Lawrence. She maintains that she lives in his house, has her own room and that she pays rent and a portion of the utilities and food. [ 39 ] Mrs.

Barber claims that the Respondent was not honest of his plans to retire and if he had said he wanted to retire she would have adjusted the spousal support and would have helped to avoid the support arrears in which Mr. Barber now finds himself. She repeats this four times in her written statement to the court. [ 40 ] In her statement filed with the court, Mrs. Barber agrees with Mr. Barber’s affidavit except for what is contained in the two previous paragraphs. Decision Credibility

[41] Mrs. Barber’s credibility is seriously affected by her continued denial that she forged her then husband’s signature. Mr. Barber’sclaim at the commencement of these proceedings was for $100,000 due to Mrs. Barber’s forgeries and damages for $75,000. Mrs.Barber’s assertions on this hearing that she pleaded guilty to the forgery charges on the advice of her lawyer, is completelyunacceptable. The following are quotations taken from Madam Justice Alder’s sentencing hearing at page 20: as well in the presentence report, it is clear that you are taking responsibility for your actions.

You’re not making excusesfor them. You are admitting what you did and you’re trying to take responsibility for them at this particular point in time”. [42] Mrs. Barber, in her address to the court stated at page 17: “I realize that what I did was wrong. I was very ill at the time”. Madam Justice Alder at page 17: “I think everyone is in agreement that these are serious charges. Of course they involve forgery of anumber of documents. The results of these forgeries were quite significant for the bank and, as well, quite significant for your ex-husband”.

Madam Justice Alder considered that the effect the forgeries had on Mr. Barber was an aggravating factor on sentencing aswas the number of documents involved and the deliberate planning on Mrs. Barber’s part to commit the offences. Either Mrs. Barberhad a faulty memory when she addressed me or she was deliberately lying to me. [43] At page 22 of Madam Justice Alder’s decision, it was clear that the court gave Mrs. Barber a break so that her opportunities forwork would not be hampered. Mrs.

Barber’s lawyer, at page 14 of the transcript, asked the court to give her a complete discharge so thatshe could continue to work at the golf course. Following that hearing, she spoke to her boss and arranged her lay off and neverattempted to be gainfully employed. It is a circumstance that I can take into consideration in my decision. Lack of Restitution Order [44] Next, it is clear that Madam Justice Alder relied on Mrs. Barber’s submissions that a document her counsel presented to the courtwas “I believe the final settlement of all the family law matters dealing with the property”.

That was untrue and as a result, the financialdamages that Mr. Barber suffered were never dealt with. The Minutes of Settlement dealt with an equalization of Net Family Propertyand was silent on reimbursement of monies Mrs. Barber made through her forgeries. I am also entitled to take this into account when Iconsider cancelling all future spousal support payments to Mrs. Barber. Health wise, Mr. Barber’s health took a turn for the worse. Hesuffers from high blood pressure and is a diabetic. [45] In Boston v. Boston (2001), 2001 SCC 43 , 17 R.F.L. (5th) 4 (S.C.C.), the court had to deal with a similar situation.

Inthat case, the husband retired and begun receiving approximately $8000 per month from pension income. The wife had not worked sincethe settlement, had invested her assets prudently and had no debt. The court reduced spousal support from $3200 per month to $950 permonth. The court stated that “it is generally unfair to allow the payee spouse to reap the benefit of the pension both as an asset and thenagain as a source of income” (paragraph 63, Carswell Ont. 2433).

To avoid double recovery, the court should, where practicable, focuson that portion of the payor’s income and assets that have not been part of the equalization or division of matrimonial assets when thepayee spouse’s continuing need for support is shown.

The court adds at paras 65 and 66: Double recovery may be permitted where the payor spouse has the ability to pay, where the payee spouse has made areasonable effort to use the equalized assets in an income-producing way and, despite this, an economic hardship from the marriage or itsbreakdown persists… Finally, if the payee receives assets in exchange for a share of the capitalized value of the other spouse’s pension and doesnot invest those assets in an attempt to produce an income, the court should impute an income to the payee spouse based on what thoseassets could reasonably produce if invested… [46] In the case at bar, the Applicant is asking that his support payments be cancelled and that the cancellation be retroactive fromJanuary 1, 2009.

I have before me several facts that differ from the facts found in Boston v. Boston. [47] Mrs. Barber has steadfastly denied the fact that she had forged her husband’s signature, that she fraudulently benefitted from themortgage that she forged and that the capital available to both parties, as they approached retirement, was reduced by the amountrequired to discharge that mortgage on the sale of the cottage and above all, to other monies she appropriated on lines of credit. She wasstill denying the forgeries at the time of the mediation in July, 2008, when the Minutes of Settlement were signed.

Once the Minutes ofSettlement were signed, she pleaded guilty and in effect, relied on the lack of familiarity of the criminal court system with thefundamentals of practice in this court to avoid a restitution order being made against her. All of the contrition and acceptance ofresponsibility for her actions expressed in front of Madam Justice Alder were forgotten when she filed an affidavit in February, 2011, inthis action, once again denying her responsibility for her actions. [48] All of this betrays the concept of marriage as a partnership as presumed by the Family Law Act. Mrs.

Barber has squandered theproperty settlement provided for in the order of Justice Roy. She has not accounted for her lack of investments in a complete andforthright way. She used her capital to buy a vehicle, a computer, a camera, personalized license plates and jewelry, and now believesthat Mr. Barber should continue to support her. [49] I have no difficulty in finding that there has been a material change of circumstances due to Mr. Barber’s retirement and thischange was contemplated in Mr. Justice Roy’s order when family assets were equalized. [50] I further find that Mrs.

Barber has failed to properly account for not investing $192,500 received in cash from her ex-husband(her one half share from the sale of the properties plus cash). Moreover, I find that Mr. Barber was so short changed between the ordersmade in Ontario Court of Justice and the Superior Court of Justice, following the discovery of the forgeries, that Mr. Barber was clearly

financially disadvantaged in his marriage breakdown with Mrs. Barber. Furthermore, she undoubtedly has formed a relationship with another and that is why she has not pursued any type of employment. Her answer to me when questioned on the matter of employment was less than forthright and the same goes for her answers concerning he relationship with Richard Lawrence. [ 51 ] As a result, I find that Mrs. Barber will have to make do with the income that she is receiving from her 50% of her ex-husband’s pension. She spent a substantial amount of money in a carefree fashion and I cannot hold Mr.

Barber responsible for his ex-wife’s improvident and irresponsible actions. [ 52 ] Moreover, because of her conduct in delaying matters through her own conduct or through the conduct of her lawyers, I order not only that spousal support be terminated but that the termination take effect on January 1, 2009. This means that the monies overpaid by Mr. Barber namely: $25,200 for 2009, $8000 for 2010, and $1100 for 2011 totaling $34,300 be repaid by Mrs. Barber to Mr. Barber. [ 53 ] As Mrs.

Barber does not appear to have any funds to repay this amount and since she has not been employed in a long time, I have decided that the amount of money overpaid and the amount of money she received through her forgeries should be set off against whatever entitlement she might have received as an equalization of the increase in Mr. Barber’s pension for the three years that were not equalized and any interest she might have had in a reduced support payment for the future. Any money held by the Financial Responsibility Office should be returned to Mr. Barber who has incurred substantial costs due to Mrs.

Barber’s delaying tactics. I wish to discourage and sanction inappropriate behaviour such as demonstrated by Ms. Barber starting with her forgeries and continued by her disobedience of court orders requesting her to disclose her assets and how she spent the money she received in the equalization of the parties N.F.P. at separation. ___________________________ Mr. Justice Paul. F. Lalonde Released : February 24, 2011 CITATION : Barber v. Barber , 2011 ONSC 1175 COURT FILE NO.: 06-FL-1466-1

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: BERNARD BARBER Applicant - and – DIANNE BARBER Respondent DECISION Mr. Justice Paul F. Lalonde Released : February 24, 2011