Husband Sabotages Wife’s Job – Then Claims She is Under-Employed
Family law litigation has a well -deserved reputation for often being unpleasant: by definition, all disputes involve conflict but the addition of emotional factors frequently foster mud-slinging and accusations, sneaky tactics, and generally bad behaviour on the part of separated and divorcing spouses.
Although certainly not the worst I’ve seen, a decision from last week released by the Ontario Superior Court of Justice called Myers v. Myers illustrates this, and in particular shows how such tactics can sometimes backfire on the party perpetrating them.
The couple had been married for about 15 years when they separated. They had two children aged 16 and 12 at the time. Respecting the child custody arrangement, the court wrote:
After separation, they maintained their separate residences relatively close to one another in the Napanee area. They developed and maintained an equal time sharing regime for the children, who moved seamlessly from one parent’s home to the other. This continued until that arrangement was disrupted as a result of an incident in August 2010 during a baseball tournament in New Brunswick. [The daughter’s] baseball team was playing for the champanionship. The Respondent/father, a spectator, became involved in an incident which found several of the parents confront one another on the playing field. [The daughter] was embarrassed and angry at her father. Their relationship unfortunately deteriorated to the point where [the daughter] has refused to see her father as of December 2010. Since then, she has resided in the sole care and custody of her mother and has not had any contact with her father. Although this unfortunate estrangement could and should have been resolved a long time ago, it continues to linger. In my view, a little goodwill and some humility would likely restore the prior unblemished relationship of father and daughter. They both owe it to one another. [The other daughter] continues with the original sharing arrangement, spending equal time with each parent.
The wife sought support from the husband, and claimed that he was routinely under-reporting his income from his self-employment as a plumber.
The husband, in turn, was asking for spousal support from the wife. However, her current work situation and income-earning capacity was in turmoil, a situation that was at least partly orchestrated by the husband himself.
This is because the wife, who had been employed with Legal Aid Ontario (LAO), had been the subject of a work-related complaint lodged by the husband himself in 2010 (i.e. after separation) that she was misconducting herself in her job, by directing legally-aided clients to her own lawyer. The court described the situation this way:
With respect to the Respondent’s complaint made to LAO, she has and continues to deny it. She states there is no substance, nor factual support for the complaint. In confronting the Respondent, he admitted to her that “if you throw enough s***, something will stick.” Additionally, the Respondent told her that if she were to discontinue her Application, he would withdraw his complaint to LAO. In this trial, the Respondent called no evidence to substantiate any of the allegations of his complaint to LAO. In fact, he admitted that he had no facts to support his complaint and that it was entirely an unsubstantiated feeling upon which he had acted. Nevertheless, it had a drastic adverse consequence for the Applicant. Despite her prior unblemished work record, she was in effect put on a dead end track by LAO, pending the outcome of the investigation launched as a result of the complaint. To this day, the investigation does not appear to have reached an official conclusion.
Not surprisingly, the allegation took its toll on the wife personally: She had been removed from the front lines of her workplace, had been instructed to work from home, gradually became depressed and struggled with her work. Her doctor recommended a leave of absence, and she sought counselling. She was eventually diagnosed with post-traumatic stress disorder.
On the husband’s motivation for filing the complaint, the court wrote:
I find the complaint made by the Respondent to be malicious and without substance. By his own admission, the Respondent acknowledged the complaint was in retaliation by him to the Applicant’s actions in attempting to identify the particulars of any cash transactions in which he may have been involved with respect to his business. He acknowledged that he had no information regarding the Applicant’s status of her employment with LAO and had no information regarding her emotional disability resulting from the complaint which he launched. To his credit, he has accepted that the Applicant has gone through a difficult period as a result of his unfounded complaint.
Since her job status with LAO was uncertain, the wife switched careers by training to become a licensed paralegal. Yet despite his undeniable role in her work-related woes, the husband nonetheless claimed she was deliberately under-employed.
The court found that, to the contrary, under the circumstances this change in the career path was reasonable in the circumstances. Indeed, it commented that the husband had advanced a spousal support claim against the wife “[f]or reasons that are not clear.” He currently earned more than she did, and in light of all the usual legal considerations was the party who was in a better position to pay support.
Furthermore, the husband had been hiding his true income. The court concluded that as sole proprietor of an unincorporated plumbing business, he was regularly operating on a cash-sales basis with no “paper trail”, and he was earning unreported income that amounted to at least 10% of his annual declared gross sales. The court also found the husband had significantly inflated his business expenses.
In the end, the court took all these conclusions into account, and allocated the husband as having 60% of the child support responsibility, while the wife was to have 40%. He was to pay $1,750 per month for 2012, $2,000 per month for 2013, with adjustments made for subsequent years until 2017 when support would terminate. The court also made additional findings in connection with special expense and costs.
For the full text of the decision, see:
Myers v. Myers, 2013 ONSC 170 http://canlii.ca/t/fvj1g