Rowe v. Piche, 2012 ONCJ 114

COURT FILE No.: City of North Bay, FO 148-08 DATE: 2012·02·24 Citation: Rowe v. Piche , 2012 ONCJ 114 ONTARIO COURT OF JUSTICE BETWEEN: Linda Lucille Gail Rowe Applicant — AND — Michael Piche Respondent Before Justice L.J. Klein Heard on January 3, 4, 5, 6 and February 10, 2012 Reasons for Judgment released on February 24, 2012 E. Rae ................................................................................................................ for the applicant(

s) Michael Piche on his own behalf KLEIN J.: 1: HISTORY [ 1 ] On April 30, 2008, the Applicant Linda Lucille Gail Rowe executed the necessary documents to bring this matter before the court and the Application was issued on May 12, 2008 for an initial court date of June 19, 2008. [ 2 ] The Application was inter alia for orders for spousal support on both an interim and final basis to compel the Respondent to maintain the Applicant on his benefits available through his employer and court costs. [ 3 ] The Respondent, Michael Piche, prepared an Answer dated July 9, 2008 and filed same in court the next day being July 10, 2008.

He disputed the Applicant’s claims and specifically denied that the necessary three year period of cohabitation had occurred to permit an order being made for spousal support. [ 4 ] This matter proceeded to trial in the Ontario Court of Justice at North Bay commencing December 4, 2008 and continued over a further three days in January and March 2009 before a final order for spousal support was made on May 1, 2009 in the absence of the Respondent who had apparently confused the starting time of court that day. [ 5 ] On appeal to the Superior Court of Justice, Justice Valin on November 24, 2009 granted the Respondent’s appeal on certain conditions, set aside the judgment of May 1, 2009, stayed enforcement of arrears by the Director of the Family Responsibility Office, fixed ongoing spousal support on a without prejudice basis and remitted this matter back to the Ontario Court of Justice for continuation of the trial for final determination of the issues including the issue of costs. [ 6 ] This matter was retried before me on January 3, 4, 5 and 6, 2012 and finally on February 10, 2012. [ 7 ] At the commencement of the re-trial of this matter it was agreed between the parties, on my suggestion, that the evidence of the three witnesses who testified at the original trial in 2009 be received into evidence through transcripts prepared following their earlier testimony on the premise that they could be recalled to be further questioned on their evidence.

Those transcripts were filed as composite exhibit 20 and were reviewed by me. These included the testimony of: the real estate agent, Terry Shea, in chief and on cross; the Applicant’s son in law, Jeff Steed, in chief and on cross and the Applicant’s daughter, Robby Steed, in chief only. I also had occasion to review exhibits 1-19 that were filed at the original trial. [ 8 ] This trial then proceeded with Robby Steed being cross-examined on her earlier testimony by the Respondent. She was followed to the stand by her sister Nancy Rowe and finally by the Applicant herself.

[ 9 ] The Respondent, in addition to testifying himself, presented friends of his and, in some instances, mutual friends including, Pierre Perigny, Ricky Stanley, Linda Stanley, Mimi Dionne, Charlene Keats and Dan Bouliane. He also called his present spouse Angela Montreuil who is also the mother of his 3 year old daughter and her brother Jamie Montreuil. The real estate agent, Terry Shea was recalled by the Respondent.

Peter Rutland, counsel for the Applicant during her divorce proceedings with her ex-spouse Garnet Rowe, gave evidence after the Applicant had waived the solicitor-client privilege that attached to her dealings. 2: BACKGROUND [ 10 ] The Applicant Linda Lucille Gail Rowe, born June 18, 1946 (hereinafter referred to as “Linda”) and Michael Piche, born February 5, 1967 (hereinafter referred to as “Michael”) have a lengthy history together which began sometime in the early 1980’s.

By all reports Michael came to live in the Rowe household as a teenager when he could no longer continue to live in the dysfunctional house of his parents. He continued to reside with the Rowe family for relatively short periods in their residences within the city of North Bay located at Lakeshore drive (The Dunrovin Motel), 1070 Premier Rd and 907 Premier Rd. [ 11 ] Like many relationships, that of Linda and Michael changed and evolved over time.

Not surprisingly given the issues before the court, their characterization of their relationship differs greatly as does that of the various witnesses who were called by the parties. Those witnesses were all family and friends of Linda and/or Michael save and except for the real estate agent, Terry Shea who was the brother of Linda’s original counsel, the late Judy Shea and Peter Rutland, Linda’s former counsel during her divorce proceedings with her husband Garnet Rowe. None of the witnesses, save Mr. Shea and Mr. Rutland, could be said to be at all neutral in their positions taken at trial.

Both Linda and Michael had taken positions and provided evidence at other legal proceedings including Linda’s divorce and Michael’s motor vehicle accident claim that could be characterized as being tailored to meet the issues that were alive in those proceedings. [ 12 ] In the end result, I was left with the task of sifting through a great deal of evidence spanning at least 15 years from 1992 to 2007 much of which was admitted into the record on a previous occasion as composite exhibits.

Given the history of these proceedings and the nature of the evidence admitted into the record, the judicial search for the facts to determine the issues resembled a forensic investigation or audit or, more accurately, an archaeological dig into the past of Linda and Michael. This was further complicated by the fact that, as Michael rightly pointed out in his argument, some of the photos, documents and other evidence were clearly misfiled in some of the composite exhibit files representing the years 1992 -2007.

In the end result, I am not convinced that the scrambling of this veritable avalanche of material prevented me from determining the issues before the court at the end of the trial as there were significant nuggets of information that provided a path to the finding of facts. 3: ISSUES [ 13 ] Linda and Michael were not married and no child had been born to them. Accordingly, the claim for support under

Part III of the Family Law Act (“the Act”) is governed by firstly the definition of “spouse” under s. 29 of the Act, and in effect, amounts to a threshold issue to be determined. [ 14 ] S. 29

Definitions – in this part, “spouse” means a spouse as defined in subsection 1 (1), and in addition includes either of two persons who are not married to each other and have cohabited, (a)continuously for a period of not less than three years, or (

b) in a relationship of some permanence, if they are the natural or adoptive parents of a child. [ 15 ] S. 1

Definitions –

(1) In this Act, “cohabit” means to live together in a conjugal relationship, whether within or outside marriage. [ 16 ] The arguments clearly revolved around whether Linda had proven on a balance of probabilities that a common law relationship of at least three years duration existed between she and Michael. [ 17 ] Michael countered that although he admitted that the parties had moved into a residence at 9 Waukegan Rd. in Corbeil, Ontario together on October 27, 2003, that they ceased to cohabit just short of the three year mark on or about October 10, 2003 and that, in any event, they had lived separate and apart for sometime in January 2005 to the end of March 2005, and from May 2006 to October 2006.

In all of those circumstances Linda had not met the three year threshold to be entitled to spousal support. [ 18 ] Michael further argued that Linda had received substantial funds from the sale of 9 Waukegan Rd. post-separation as well as pursuant to a Family Law claim in his motor vehicle accident suit in 2006. [ 19 ] Michael presented evidence of his subsequent common law relationship with Angela Montreuil and the fact that they now have a three year old daughter and another child due in the coming months.

On that basis he made the alternative argument that his first financial responsibility was to his new family and that no spousal support should be forthcoming. Presumably he would also argue that any spousal support found owing should be reduced so as not to harm financially his new family to solely benefit Linda. 4: ANALYSIS

[20] The period of time under consideration by the court was expanded from the rather narrow time frame bounded by October27, 2003 on one end and October 10, 2006 on the other to an examination of the nature of the relationship as it existed between Lindaand Michael from when Michael first moved into the residence at 907 Premier Rd in North Bay sometime in 1993 to when the house at 9Waukegan Rd in Corbeil was sold in 2007. [21] This analysis was rendered considerably more difficult by the competing interests which engulfed Linda and Michaelduring much of that time period and which caused them to tailor their official pronouncements to meet the exigencies of the day as theypresented themselves.

In so many words, their official positions vis a vis the dates of their relationship are unreliable at best and anexacting look at various other “pebbles that were dropped into the evidentiary pool” must be undertaken by me. [22] I should also remark that given that most of the witnesses called at trial were clearly in one camp or the other, I also hadto look very critically at all of their evidence to determine where they went “off script” and where commonalities existed in the evidenceto assist in establishing the timelines necessary in this analysis. [23] I was referred to a line of cases that began with Judge Kurisko’s decision in Molodowich v.

Pettinen (1980) (ON SC), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.) in which he analyzed the then s. 14 of the Family Law Reform Act, 1978 which is theprecursor to s. 29 of the present Family Law Act.

In paragraph 16 of his judgment Judge Kurisko set out a number of questions to beasked and answered in seven descriptive components to provide guidance to the court in determining ‘the complex group of human inter-relationships broadly described by the words “cohabitation” and “consortium”.’ I don’t propose to reproduce those questions or theseven descriptive components indentified by Judge Kurisko but did refer to them in analyzing the evidence presented to me.

I did so withthe obvious caveat that the answer to any or all of the questions in any one of the seven descriptive components should not bedeterminative of the issue of the length of the relationship between Linda and Michael and the proper characterization of that relationshipas it existed from time to time. [24] The length of the relationship was not disputed to any extent but the nature of that relationship formed the core of the casebefore me.

Most specifically, the question of when the common law relationship commenced and, more importantly, how long it lastedconsumed the vast majority of court time. [25] Michael lived with Linda Rowe and her family in various residences in North Bay and area from sometime in the early tomid 1980’s until he and Linda separated in late 2006 or early 2007. There were a few periods when he lived elsewhere but on the wholehe spent a good deal of his youth and adulthood with Linda.

When he moved into 907 Premier Rd, a house owned by Linda and herestranged husband, Garnet Rowe, in approximately 1993, he shortly began a relationship with Linda. This relationship he claimed to beof a boyfriend/girlfriend nature which lasted until they moved in together on October 27, 2003 when he purchased the house at 9Waukegan Rd in Corbeil.

He further claimed that it ended in mid-October 2006 thus leaving it two weeks short of the three yearthreshold for a finding of cohabitation. [26] For reasons set out below I find that the so-called three year threshold has been made out by Linda and her claim forspousal support survives that challenge put up by Michael. [27] Michael and Linda lived together in the basement at 907 Premier Rd, referred to as apartment 2, for a period of close totwo years when Linda’s daughter Nancy and her family occupied the upper floors which consisted of three bedrooms.

Michaelattempted to assert that the downstairs unit consisted of two bedrooms and that he and Linda occupied separate bedrooms. Thisdescription was not supported by his own witnesses and Michael relectantly conceded in cross-examination that the second bedroom wasindeed a glorified storage area. His contention that when the two units were available to he and Linda from 1995 to 2003, that heoccupied the basement apartment #2, was clearly a construct supported from time to time by Linda but does not reflect the true nature oftheir relationship in fact.

In reviewing the voluminous exhibits that were filed at trial the address provided by Michael to employers andpotential employers was 907 Premier Rd with no mention of the distinctive apartment 2. The phone number 705-472-1905 provided tothose same people was the number held by Linda since sometime in the distant past and, in any event, long before Michael came uponthe scene. It was Linda’s phone number. His explanation that he provided that number as it was a land line and messages could be leftwith his friend Linda does not make any sense.

In any event, case law is clear that even if the parties maintain separate residences theycan still cohabit for the purposes of

section 29 of the Family Law Act. [28] I cannot determine with any certainty when the relationship morphed from one of boyfriend/girlfriend to one of commonlaw spouses but it is clear that both Linda and Michael were tailoring their evidence when answering questions at the Examination forDiscovery during the divorce proceedings between Linda and Garnet Rowe on 23 June 2004. The obvious benefit to be had from thiswas that Linda would continue to be supported by Garnet.

During those same divorce proceedings both Robby Steed and her husbandJeff Steed, the daughter and son-in-law of Linda, provided affidavits to Garnet Rowe’s counsel alleging that Linda and Michael had beenliving together since 1993. Needless to say, this caused a rupture in Linda’s family but Robby and Jeff Steed felt very strongly that Lindaand Michael should not benefit at the expense of Garnet Rowe. Linda, with the advice of counsel and in the presence of Michael, agreedto accept spousal support in the amount of $300.00 per month despite the fact that Garnet had been married for over 30 years.

It wasinstructive to read the transcript of Michael’s examination as he answered questions that would meet many of the criteria for a finding ofcohabitation as set out by Judge Kurisko in Molodowich. At questions 87 and 88, Michael asserted: “We weren’t cohabiting together weboth had separate residences. I didn’t support Linda in anyway. She’s still married. We couldn’t be living together. It’s against thelaw.

I don’t think it’s right morally.” A very interesting position given that Michael and Linda had been engaging in sexual relations forapproximately ten years with Linda being still married to Garnet Rowe during the entire time. At questions 117 and 119, Michaeladmitted that he and Linda stored their “stuff” in the same storage locker and that “(w)e made a decision at that point when the housewas sold...I said, ‘well, let’s look for a place.” The joint storage of their “stuff” and the clear intention to live together in a house to bepurchased pushes the timeline back to the end of June 2003 at the very least.

This intention was confirmed by Michael’s witness andfriend, Dan Bouliane, who testified that he helped move the “stuff” of Linda and Michael from 907 Premier Rd into storage with theclear understanding that it would later be moved into their new house which became 9 Waukegan Rd.

At question 300 over three-quarters of the way through a two and one half hour, at times, testy examination for discovery, Michael uttered the following: “As far asI know every time when...when we were there at nine...when I was living downstairs at...907.” This can only be described as asignificant slip of the tongue and probably Freudian in nature while struggling to stay on script.

[ 29 ] Michael and Linda ate meals together, attended family events (hosting some at 907 Premier Rd) and engaging in the behaviours typical of a couple in front of family and friends. There could be only one conclusion that those people could draw and that was that Linda and Michael were a couple long before their penultimate move to 9 Waukegan Rd. Michael was known as “Uncle Mike” to Linda’s grandchildren. He coached one of the grandchildren’s hockey teams and was godfather to one of Robby and Jeff Steed’s children, an honorific not bestowed on casual acquaintances or friends.

Michael listed Linda as his “partner” in an application to the Wikwemikong Police Service, while again providing 907 Premier Rd as his address and 705-472-1905 as his contact number on June 8, 2001. Any person reading that description “partner” would naturally assume a common law relationship was in existence. Michael and Linda attended his graduation ceremony from the OPP academy in January 2002 and he presented her with a gift that is traditionally given by OPP graduates to their spouses or mothers.

Michael listed Linda on his benefits and personal information with the OPP in 2001 and onwards as his spouse which on the forms specifically refers to a spouse as defined in the Family Law Act . His response to that being pointed out to him in cross-examination was that he didn’t read that part...that he had put Linda on his plan without her knowledge when he joined the OPP to protect her against Garnet Rowe’s threats to cut her off her benefits.

It begs the question as to why he didn’t simply wait until she was removed by Garnet or until they moved in together at 9 Waukegan Rd in October 2003. [ 30 ] In addition to maintaining a joint bank account for a number of years prior to the move to 9 Waukegan Rd into which Michael’s OPP pay was deposited, Michael and Linda also spent considerable sums of money each received from separate insurance settlements as a result of motor vehicle accidents. They bought big ticket items and extensively renovated 907 Premier Rd. They were joint holders of vehicle insurance over those years while residing at 907 Premier Rd.

Two separate receipts for rings described as a diamond “engagement” ring and a “friendship” ring in the name of Michael and with the phone number 472-1905 were presented to Michael under cross-examination and he took the position that Linda simply used his account. Significantly, Michael did not confront Linda with this accusation during his cross-examination of her. Given the parties history of purchasing big ticket gifts for each other, I can only conclude that Michael bought the rings for Linda on his account at Kern’s Jeweller’s in the North Bay Mall.

Linda also paid of debts of Michael’s after the sale of 907 Premier Rd and 9 Waukegan Rd, a period well outside the three year threshold argued by Michael. [ 31 ] While looking through the reams of material in the composite exhibits filed for the years 1991 to 2008 inclusive, it was obvious through the cards and photos that Michael and Linda were seen to be a couple by friends and business contacts (Wilfred Weiskopf and Mark Lyons). A number of photos taken in the upstairs hallway at 907 Premier Rd clearly show the certificates, citations and awards earned by Michael.

When this was raised with him, Michael explained that the basement apartment that he occupied was too damp to keep them there. Even if that explanation were true, the very fact that those items were displayed in the upstairs unit, i.e. Linda’s, would lead others to the inevitable conclusion that Linda and Michael were cohabiting. The most striking photo contained in the exhibits was in exhibit 14 for the year 1996.

It can only be described as a “glam” photo of Michael and Linda, very striking, easily identifiable as a very intimate couple and not typical of a boyfriend/girlfriend relationship. [ 32 ] Prior to the purchase of the 9 Waukegan Rd, Corbeil house, Michael and Linda made a number of conditional offers on other houses in 2002 and 2003 including 68 Arbutus Trail, Mattawan Twp in 2002 and 644 Lavigne Rd, Corbeil on May 26, 2003 and 2 Trapper’s Court, Astorville on June 6, 2003.

All of these joint offers by Michael and Linda lead to a simple conclusion...that they intended to live together as they had both been doing so at 907 Premier Rd. [ 33 ] For a number of years Michael received annual rent receipts for apartment 2, 907 Premier Rd in the amount of $500.00 per month or $6000.00 per annum in lieu of work which he performed to maintain that property. He claimed the rental payment receipts on his income tax returns and received tax credits when available.

On the other side Garnet Rowe was able to write-off mortgage interest paid against the notional rent received when otherwise there would be no way to claim the mortgage interest expense with Linda as co-owner living with Michael. This amounted to a win-win situation and is not determinative of Michael and Linda living in separate residences.

It was a fiction designed to maximize financial benefits for both sides. [ 34 ] Even if Michael and Linda kept separate residences at 907 Premier Rd for a number of years from 1993 until them moved to 9 Waukegan Rd on October 27, 2003, I am convinced by case law that it is not a prerequisite for them to have lived together all the time. [ 35 ] For the reasons above I must conclude that Linda and Michael were common law spouses within the meaning of

section 29 of the Family Law Act . 5: ENTITLEMENT TO SPOUSAL SUPPORT [ 36 ]

Section 30 of the Family Law Act provides that ‘every spouse...has an obligation to provide support...for the other spouse...in accordance with need, to the extent that he or she is capable of doing so” Subsection 33(8) provides that an order for support should: (

a) recognize the spouse’s...contribution to the relationship and the economic consequences of the relationship for the spouse..., (

b) make fair provision to assist the spouse...to become able to contribute to his or her own support; and (

c) relieve financial hardship. [ 37 ] Section 33(9) enumerates the relevant factors to be considered by the court in determining the amount and duration of support in relation to the need of the recipient spouse. [ 38 ] Linda’s financial statement shows her income to be $1463.94 per month: composed of $637.09 CPP Disability; $526.85 Old Age Security and $300.00 spousal support from her first spouse Garnet Rowe for a total annual income of $17,567.28. In addition she is receiving temporary support from Michael in the amount of approximately $1406.00 per month or $16,872 annually. This

provides her with total annual income of $34,439.00. [ 39 ] Her expenses as disclosed in her financial statement filed at court total $1,888.00 per month. She, however, has no figures for clothing, hair care, recreation, entertainment or gifts, all of which were part of her former life’s expenses with Michael. [ 40 ] During the years of her relationship with Michael, Linda contributed a substantial amount of time and energy in promoting his career and in ensuring that he reached his goal of becoming a police officer.

Every application sent by Michael was prepared by Linda and she took obvious pride in his being sworn in as a peace officer as witnessed by the ad which was placed in the North Bay Nugget in January 2002. It is also obvious to me that Linda’s relationship with Michael caused her to agree to a lesser sum for spousal support from her ex-husband, Garnet Rowe, when they divorced in 2004. The nature and length of her relationship with Michael was very much a factor in that decision. [ 41 ] I am satisfied that pursuant to

section 30 of the Family Law Act , Michael has obligation to provide support for Linda in accordance with her need and to the extent that he is capable of doing so. The support order in this case will recognize Linda’s contribution to the relationship and the economic consequences of the relationship and its breakdown. It also recognizes to some extent Linda’s need for financial support. [ 42 ] Michael and Linda cohabited for approximately 11 years at a time when Linda was older and needed to financially secure her future.

Linda contributed housework, the preparation of meals and personal services to Michael and their relationship. She promoted and supported Michael in his career aspirations. She spent large sums of money on gifts and the lifestyle that she and Michael enjoyed during those years. Linda expected to spend her remaining years with Michael and to be supported by him. She now lives a very modest lifestyle with no savings and approximately $13,100.00 in debts.

Given her age and health, Linda is unable to work. [ 43 ] Michael has moved on to a new relationship with Angela Montreuil, her two children from a previous relationship and their daughter, Johanna, now 3 years old. They are expecting another child this summer and Michael will be supporting that child as well. Angela Montreuil does not work outside the house and receives child support for her two children from her previous relationship in the monthly amount of $437.00. During the course of these proceedings, Michael declared bankruptcy, lost his house on Hwy 533 in Mattawa and, as a consequence, has no assets.

The present temporary order of Justice Valin of the Superior Court of November 24, 2009 ordered payment of spousal support on a without prejudice basis in the amount of $692.00 every two weeks and suspended enforcement on accumulated support arrears of over $30,000.00 until such time as a final order could be made by this court after a trial on the merits. The amount of those arrears (if any) will be calculated by the Family Responsibility Office in accordance with the judgment contained herein. [ 44 ] Michael has the ability to pay support to Linda.

The question to be determined is the quantum of that ongoing support given the competing demands on his income from his expanding family. Given the length of Michael and Linda’s relationship, both as boyfriend/girlfriend and as a common law couple and the manner in which their finances were intertwined, I do not find that spousal support should be time limited. [ 45 ] Michael began a relationship with Angela Montreuil in the latter part of 2006. By February of 2007, Michael and Angela were living in Angela’s parents’ home in Mattawa as corroborated by both Angela and her brother, Jamie Montreuil.

Angela advised that she and Michael moved into an apartment in Mattawa in May 2007 and subsequently purchased and occupied a home on Hwy 533 in August 2007. The conclusion that I draw from that is that Michael and Linda’s relationship definitely terminated in May 2007. [ 46 ] Michael assumed responsibility for Angela’s support by August 2007 and also some responsibility for the support for her two children, Sheldon and Tyson Hallé. I note that in Michael’s financial statement filed at trial and dated January 6, 2012, he listed additional income of “child support” of $437.00 per month.

As no evidence was presented at trial by either Angela Montreuil or Michael, I can only draw the conclusion that income was being received by Angela either by way of child support payments from Sheldon and Tyson’s father or by way of the Child Tax Credit. In either case it lessens the financial burden upon Michael. [ 47 ] Michael and Angela purchased their home on Hwy 533 in August 2007 some nine months prior to his being served with Linda’s court application.

Presumably this was done on the basis that Michael believed that he had no further financial obligations towards Linda and that their relationship was at an end with no strings attached. In the same vein, this must have informed his and Angela’s decision to have a child together as Angela was pregnant with Johanna by the time court papers were served on Michael in May 2002.

Just prior to the service of these documents on Michael he had removed Linda as his “spouse” eligible for benefits available through his employment as he believed that he had fulfilled his commitment to provide benefits coverage for a year following separation and is consistent with their having signed the agreement to sell 9 Waukegan on April 28, 2007. [ 48 ] In her decision in Kugler v. Kugler (1994) 8 R.F.L. (4 th ) p.295 (O.C.J.), Justice Katarynych summarized the law in relation to support by a party where there is a second family involved.

Quoting from p.220 of that reported decision: It is clear that a court cannot disregard a new family unit that has come into being since the breakup of the marriage.

It is also clear that the new family responsibilities weigh heavier when the court is making an original (italics in text of decision) order for support and the payor’s circumstances are financially very tenuous...In short, the court cannot ameliorate the condition of the first family while devastating the second family. [ 49 ] The facts of Kugler are very different from the facts in this case as it involved the payment of child support but it is instructive as it urges the consideration of the plight of the second family in the context of the case before the court.

There will be greater consideration given for the child or children born within the second family as opposed to those children for whom the payor has voluntarily assumed responsibility and are not the payor’s own children. It appears that the court should not reduce the payor’s support obligations to the first family in situations such as voluntary assumption of responsibility for children not the payor’s own. [ 50 ] Self-sufficiency by the lesser income spouse is an ideal set out in section 33(8).

By its very nature it is a relative concept to be considered in the context of the parties’ prior standard of living and the standard of living they should be able to enjoy after

separation. Linda, as the lesser income spouse at the time of separation, became dependant on Michael and his ever-increasing income especially since his induction into the OPP in 2001. Her dependency was as a direct result of her long-term relationship with Michael. Linda could not be expected to replicate her former standard of living given her substantially lower income. Her age and infirmity make it impossible for her to do so.

For reasons that are almost inevitable, even with substantial assistance from Michael, Linda would not be able to replicate that standard of living that existed at the time of separation. There is simply not enough income to go around. I am also left with the strong impression that neither Linda nor Michael could have sustained their joint standard of living even had they remained together.

They continually demonstrated through the length of their relationship that they could not or would not live within their means as demonstrated by the fact that they spent proceeds of two substantial motor vehicle collision settlements and still had significant debts at the time of the sale of 9 Waukegan Rd. The standard of living that each should expect to enjoy is less than what they did enjoy during their relationship. [ 51 ] In attempting to arrive at a figure for spousal support with those considerations above, I was provided with Divorcemate calculations by Linda’s counsel, Mr. Rae.

Those calculations for the years 2006 through 2011 pursuant to Spousal Support Advisory Guidelines (SSAG) provided monthly support ranges from as low as $970 to as high as $1684. Unfortunately, they did not take into account the additional support responsibilities Michael incurred with the birth of his daughter Johanna in 2008 or the impending birth of a second child in the coming months. A recalculation with those factors amounts to a current monthly spousal support range of a low of $780 and $1020 as a high.

Bearing in mind the competing interests that I outlined above of trying to meet Linda’s needs while not penalizing Michael’s second family and, most specifically, his child (soon to be children), I think it is best to remain towards the lower midpoint of the SSAG amounts. [ 52 ] The question of the commencement date for the payment of spousal support must be answered before fixing support payments given the changes in circumstances which Michael faced. Spousal support entitlement was triggered upon the separation of Michael and Linda in May 2007.

For reasons never fully explained, the Application before this court was not filed until May 12, 2008 thus causing Michael to make certain decisions that led to his assuming support obligations for first one child and soon another. On that basis payment of support should commence on that later date being June 1, 2008. [ 53 ] Spousal support shall be payable by Michael to Linda in the amount of $508.00 every two weeks commencing June 8, 2008.

On June 1, 2012 in recognition of the impending birth of a second child, support shall be payable by Michael to Linda in the amount of $401.00 every two weeks. 6: FRO RECALCULATION [ 54 ] I am very mindful that given the length of time that has elapsed since the commencement of this matter and the various court orders that have issued requiring the payment of support by Michael, that there will be a re-calculation of support totals by the Director, Family Responsibility Office.

I have reason to believe that there will be arrears of spousal support payable by Michael and I would want to cushion the impact of that fact. On that basis, I am ordering that payment on arrears be at the rate of $100.00 every two weeks commencing April 1, 2012. 7: BENEFITS [ 55 ] The issue of benefits coverage presents its own degree of difficulty. I heard at trial that Linda’s health requires access to drug and other benefits available through Michael’s employer’s plan. I also heard, as I have many times in the past, that the employer’s insurer will only recognize one spouse for the receipt of benefits.

Michael has two spouses, Linda and Angela and can divorce neither of them as he is and was married to neither. Angela is not employed and is dependent on Michael for support while staying at home to raise their child, Johanna and soon a second child. Her need for benefits coverage is also borne out by those facts. I was told at trial, although the issue was not explored at any length, that Linda, given her age and the nature of some of her income, has access to benefits that would not be available to Angela.

On that basis, I do not assess Linda’s need as being greater than that of Michael’s family and order that benefits coverage for Linda be discontinued on June 1, 2012. 8: DISPOSITION [ 56 ] 1) Michael Piche shall pay to Linda Lucille Gail Rowe support in the amount of $508.00 every two weeks retroactive to June 1, 2008. 2) Commencing June 1, 2012, support shall be varied to require Michael Piche to pay Linda Lucille Gail Rowe the amount of $401.00 every two weeks. 3) Any arrears of support or overpayment thereof as calculated by the Director, Family Responsibility Office shall be payable by or credited to Michael Piche in the amount of $100.00 every two weeks commencing April 1, 2012. 4) Michael Piche shall continue benefits coverage available through his employer for Linda Lucille Gail Rowe until June 1, 2012 at which time he shall be at liberty to discontinue coverage for Linda Lucille Gail Rowe. 5) CPI Clause – On June 1 st each year commencing June 1, 2013, the spousal support payment by Michael Piche to Linda Lucille Gail Rowe shall be increased by the indexing factor as defined in subsection 34(6) of the Family Law Act for November of the previous year.

9: COSTS [ 57 ] Linda may make brief written submissions with respect to costs by serving the same and filing with the court on or before March 16, 2012. [ 58 ] Michael may respond on the issue of costs with brief written submissions to be served and filed on or before April 5, 2012. Released: February 24, 2012 Signed: “Justice L.J. Klein”