J. Q.B. A.D. 1998 No. 05780 J.C.P.A. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF PRINCE ALBERT BETWEEN: CORINNE FAYE PULAK and DONALD HARVEY PULAK RESPONDENT Jean P. Maksymiuk for the petitioner Evatt F.A. Merchant for the respondent FIAT GEREIN J. April 5, 1999 [1] This is an application wherein the respondent seeks an order for interim spousal support. have concluded that relief should be granted, but in the circumstances it should not take the form of spousal support. [2] The parties were married on January 24, 1981, and ceased to cohabit on December 29, 1996. There are three children who live with the petitioner. They are the following: Melissa Ann born April 23, 1982 (16) Matthew Robert born March 19, 1984 (15) Mark Andrew born May 28, 1986 (12) Since the separation the petitioner alone has provided for the children. [3] The respondent is 52 years of age and is unemployed. In the past he has been diagnosed as paranoid schizophrenic and suffering from personality disorder. His present physician describes him as being of sound mind and able to manage his own affairs. In any event, in 1987 he qualified for disability pension under the Canada Pension Plan by reason of his mental disability. This provides his basic income of $580.00 month. When you factor in the G.S.T. rebate his total monthly income is $630.00. At present he lives with friend and pays no rent, but buys the food for both of them. This cannot continue indefinitely. In his financial statement, the respondent states his monthly expenses are $595.00. [4] In that same financial statement the respondent sets out matrimonial property which he values at $488,040.00. The petitioner discloses much the same property, but values it at $293,874.00. The difference in value relates to certain farmland which the respondent brought into the marriage. In total there is section of land, one quarter of which contains the matrimonial home. [5] The petitioner and children reside in that home. The petitioner is 39 years of age and also is unemployed because she is an incomplete quadriplegic. She has three sources of monthly income, namely: (a) Canada Pension Disability Pension $1,049.00 (b) Disability Insurance: London Life 583.00 (c) Pension for children from Respondent’s pension 509.00 Total $2,141.00 According to her financial statement, sworn December 29, 1998, the monthly expenses of the petitioner and children come to $4,086.00. This includes mortgage and land tax payments. [6] There is another source of revenue and that is the farm land which is rented out. The petitioner has de facto possession of the land and receives the entire rental. According to the affidavit of the petitioner sworn on March 16, 1998, the following rents were paid in the years indicated: (a) 1996 $8,000.00 para. 25(a) (b) 1997 $17,000.00 para. 30 In her affidavit sworn on December 14, 1998, the respondent in para. 39 states her share of the 1998 crop has value of $16,000.00. In addition, she received $1,700.00 by way of crop insurance. [7] In summary, the petitioner has to date enjoyed monthly income of some $3,400.00. From that she has provided for herself and the three children. On the other hand, the respondent has monthly income of $630.00 which is insufficient to enable him to rent an apartment and meet his other needs. [8] The claim for relief is grounded in the fact that the respondent is the registered owner of the farm land. This being so, it is argued that he should receive the income from it. In the alternative, it is submitted that he should receive monies by way of spousal support. [9] I can find no juridical reason why the petitioner should obtain the total revenue from land owned by her spouse, particularly when he brought the land into the marriage. In fact, fairness and equity would suggest just the opposite, at least in respect to one half the revenue. Accordingly, I choose to make an order on the basis of the respondent’s ownership of the land rather than order payment of spousal support. [10] In calculating what should be paid commence with rental income of $16,000.00. From that should be deducted mortgage payments and taxes which total some $10,000.00. This sum should be left with the petitioner to meet those obligations which presently form part of her monthly expenses as set out in her financial statement. The balance of $6,000.00 should be paid to the respondent by way of monthly payments in the amount of $500.00. [11] It was argued on behalf of the petitioner that she does not have the means to make the indicated payments. In response note the following. She has pension income of $2,141.00 and rental income of $1,333.33 for total monthly income of $3,474.33. Her stated expenses are $4,086.00 which results in shortfall of $611.67 which increases to $1,111.67 if she is required to pay out an additional $500.00 month. [12] However, her expenses are inflated. There is monthly expense of $290.00 for dental and eye care. No explanation is given for this. There is monthly expense of $75.00 for “other”. This is meaningless to me. There is monthly payment on bank loan which was obtained to purchase an RRSP and thereby reduce tax liability. The transaction was appropriate, but it must be remembered that there is an off-setting asset which could be sold and reduced loan payments would result. There is monthly expense of $500.00 for legal fees. Finally, small economics could be achieved. In the end, have no hesitation in concluding that the petitioner has the means to pay $500.00 month. [13] It was also submitted on behalf of the petitioner that the first consideration is that the childrens’ reasonable needs must be met. do not quarrel with that statement, but one cannot totally ignore the needs of parent. More importantly, the reasonable needs of the children will be met even if some of the rental income is paid to the respondent. [14] It is interesting to note that in her financial statement the petitioner attributes $2,292.58 to the children. If one refers to that sum in The Federal Child Support Guidelines the related income exceeds $150,000.00. recognize that much of the $2,292.58 is the result of an arbitrary and artificial attribution, but it does demonstrate that on the basis of the respondent’s income the children are being adequately provided for. On the other hand, were one to take the respondent’s total pension income, including G.S.T. credit, along with the whole of the rental, his total annual income would be $23,560.00. On that amount, The Federal Child Support Guidelines would stipulate payment of $442.00 month. In fact, they are receiving $508.00 by way of the Canada Pension Plan Benefits. Any payment order will not impact upon that. It seems obvious that an order as contemplated will not jeopardize the welfare of the children. [15] It was also submitted that the respondent does not need financial assistance. It was suggested that because of his mental disability he could live in group home and the cost would be relatively low. It was pointed out that the respondent doesn’t manage his finances well and reference was made to the fact that he spends over 25 per cent of his present income on the luxuries of eating out, entertainment, recreation and cigarettes. The actual amount is $210.00 which is 33 per cent of his present income of $630.00. [16] In this regard, simply say that there is no requirement that the respondent live in group home and there is no basis upon which can order or even expect such. As to the matter of luxurious living, do not see monthly expenditure of $200.00 to amount to such. The fact remains, the respondent is in the position of not being able to obtain suitable shelter on his own and that is deplorable. [17] Ultimately conclude that there is sufficient total means to enable the petitioner and the children to enjoy reasonable standard of living and the respondent to enjoy an improved standard. The latter can be achieved by providing to the respondent some of the income earned from his land. Conclusion [18] In the result, it is ordered that the petitioner pay to the respondent the annual sum of $6,000.00, which shall be paid in monthly installments of $500.00 commencing April 1, 1999. The respondent will have his costs of this application in any event of the cause, which costs fix at $400.00.
The respondent seeks an order for interim spousal support. The parties were married in January 1991 with three children and ceased to cohabit in December of 1996. The respondent is 52 years old and unemployed. In the past, he has been diagnosed as paranoid schizophrenic and suffering from a personality disorder but is currently, according to his physician, of sound mind. He qualifies since 1987 for a disability pension under CPP by reason of his mental disability which provides for a basic income of $580 plus GTS rebate for a total of $630 per month. The petitioner lives on a section of farm land which was brought into the marriage by the respondent, of which one quarter contains the matrimonial home. The petitioner and children live in that home. The petitioner is 39 years old and is also unemployed because she is an incomplete quadriplegic. The farm land is rented out from which the petitioner receives rental income. The petitioner enjoys an income of $3,400 per month while the respondent receives $630 per month. HELD: The petitioner is ordered to pay the respondent the annual sum of $6,000 paid in monthly installments of $500. There is no juridical reason why the petitioner should obtain the total revenue owned by the respondent particularly when he brought the land into the marriage. In fact, fairness and equity would suggest just the opposite, at least in respect to one half of the revenue. Accordingly, the Court makes an order on the basis of the respondent's ownership of the land rather than order payment of spousal support.