Sarjeant v. Sarjeant, 2010 ONCJ 646

Brampton Registry No. 1758/09 DATE: 2010·XII·21 CITATION: Sarjeant v. Sarjeant , 2010 ONCJ 646 ONTARIO COURT OF JUSTICE BETWEEN: IAN DONALD SARJEANT, Applicant, — AND — HEATHER SARJEANT, Respondent. Before Justice Juliet C.

Baldock Heard on 17 December 2010 Reasons for Judgment released on 21 December 2010 SUPPORT ORDERS — Variation — Assessment of quantum — Payor’s assets and means — Attribution of income — Whether payor “intentionally under-employed or unemployed” — Evidence — When parties signed separation agreement 2 years ago, payor husband had for many years earned respectable wage as salesman at local automobile dealership — On that basis, he had agreed to make monthly support payments of $1,500 to wife — Over following year, global economic recession affected North American automotive industry badly, resulting in drop in payor’s income by third — Accordingly, husband made motion to reduce quantum of his support payments — Wife suspected that husband was deliberately under-employed and gave evidence of having made several telephone calls to his place of work, only to be told on each occasion that that he was not in or had left — Husband had presented documents affirming that he was now doing shift work, thus raising possibility that wife, who was ignorant of his schedule, might have called at wrong hours — Wife failed to specify dates on which she called or names of persons to whom she spoke — Motion judge found wife’s evidence to be hearsay and, even if admissible, source of her information was unknown, thus rendering it unreliable and deserving no weight — Judge accepted husband’s evidence of involuntary decline in income and, although wife’s needs had increased, adjusted quantum of monthly support to $917.

Bonnie A. Caplan-Stroeder .......................................................... counsel for the applicant husband Ronald S. Sleightholm ..................................................................... counsel for the respondent wife [ 1 ] JUSTICE J.C. BALDOCK:— This is a motion brought by the applicant (husband) to vary spousal support provisions contained in the parties’ separation agreement dated 30 December 2008. [ 2 ] That agreement required the applicant husband to pay $1,500.00 per month.

At the time, his income was approximately $75,000.00 per year. [ 3 ] He has for many years worked as a salesman for a local Chevrolet auto dealership. [ 4 ] The respondent wife was working for a company owned by her brother, earning approximately $39,000.00 per year. [ 5 ] The parties (who are now aged 66 and 67), were married for 26 years. Their children are grown and otherwise provided for. [ 6 ] The applicant husband claims that, in 2009, the automobile industry suffered a financial upheaval, resulting in a significant loss of sales due to the global economic recession.

His income is now stated to be approximately $50,000.00 per year. [ 7 ] The respondent wife’s income has also dropped. Her brother sold his company and she lost her job without any severance or compensation. She currently receives employment insurance and is otherwise dependant on the support received from the

applicant. [ 8 ] Each party argues that the other is not maximizing his or her income. [ 9 ] The respondent states in her affidavit material that, on learning that the applicant wanted to reduce his spousal support payments, she made some calls to the dealership where he works. She was told either that he was not in or had left. [ 10 ] The applicant’s evidence is that he works shifts and the respondent would be unaware of which shift he was on so that, if indeed he was not in, it was likely due to his hours of work. He submits a letter from his employer confirming that he has worked all required shifts. [ 11 ] The respondent wife does not specify the dates on which she called or the person(

s) to whom she spoke. [ 12 ] Her evidence is hearsay and, even if it were admissible, as the source of her information is unknown, I regard it as unreliable. Accordingly, I give it no weight. [ 13 ] There is no evidence to support the respondent’s theory that the applicant is intentionally reducing his income. [ 14 ] I accept that the applicant’s income is now reduced by approximately one third. [ 15 ] Counsel for the parties each provided “Divorce Male” calculations based on various scenarios. [ 16 ] That the respondent is entitled to continued support is not contradicted.

I also accept that, for reasons outside her control, she does not have the income that she earned when the agreement was signed. [ 17 ] Therefore, while the applicant’s ability to pay is less, the respondent’s need has increased. The effects of these circumstances must be apportioned fairly between the parties. [ 18 ] For this reason, I find that the respondent is entitled to an amount in the higher range based on the parties’ respective incomes being $50,525.00 for the applicant and $25,548.00 for the respondent. [ 19 ] Final order to issue: 1.

Commencing on 18 September 2009, the applicant will pay for the support of the respondent the sum of $917.00 per month. This order varies the support set out in the parties’ separation agreement dated 30 December 2008. The applicant will be given credit for all payments made after 31 August 2009. 2. Counsel may each, within 30 days, make brief written submissions with respect to costs to include a bill of costs and any formal offers of settlement.