Rioux v. Rioux
97 O.R. (3d) 102
Court of Appeal for Ontario,
Laskin, Juriansz and G.J. Epstein JJ.A.
July 14, 2009
Family law -- Support -- Spousal support -- Parties separating after 21-year traditional marriage during which wife managed household, raised child and worked part-time -- Wife economically disadvantaged by breakdown of marriage -- Wife not having achieved self-sufficiency -- Self-sufficiency relating to achievement of reasonable standard of living having regard to lifestyle couple enjoyed during their marriage -- Husband ordered to pay spousal support of $1,500 per month for five years.
The parties separated after a traditional 21-year marriage. They were both 45 years old at the time and their one child was preparing to start a four-year university program. The husband was required by pre-trial orders to pay spousal support in the amount of approximately $900 every two weeks, to pay child support of $837 per month and to pay 89 per cent of the child's post-secondary education expenses. At the time of the trial, the husband was earning $105,000 and the wife, $26,208. The trial judge ordered the husband to pay guideline child support of $916 a month, a lump sum of $100,000 to cover all retroactive child support, including s. 7 (of the Family Law Act, R.S.O. 1990, c. F.3) post-secondary education expenses, and retroactive spousal support. The wife appealed, seeking an order requiring the husband to contribute his proportionate share of the child's education expenses and to pay ongoing spousal support.
Held, the appeal should be allowed in part.
The trial judge included education expenses in ordering the husband to pay monthly child support of $916 and specifically identified retroactive child support, including post-secondary education expenses, as forming part of the $100,000 lump-sum payment. His treatment of the s. 7 special expenses was entitled to deference.
The wife was entitled to ongoing spousal support. When the appeal was heard, her income was approximately $16,000. The important role she played in the family during the marriage left her economically disadvantaged by its breakdown. The trial judge's apparent conclusion that she was, or could soon become, self-sufficient was not supported by the evidence. Self- sufficiency is a relative concept. It relates to achieving a reasonable standard of living having regard to the lifestyle the couple enjoyed during their marriage. By the time of separation, the parties anticipated sharing a joint income of about $125,000. The wife would need some time to achieve the goal of self-sufficiency. The husband was ordered to pay spousal support in the amount of $1,500 per month for a further five years, at which time spousal support would be subject to review by either party.
APPEAL by wife from the order of Nadeau J. of the Superior Court of Justice dated July 13, 2007.
Cases referred to Bracklow v. Bracklow, [1999] 1 S.C.R. 420, [1999] S.C.J. No. 14, 169 D.L.R. (4th) 577, 236 N.R. 79, [1999] 8 W.W.R. 740, J.E. 99-703, 120 B.C.A.C. 211, 63 B.C.L.R. (3d) 77, 44 R.F.L. (4th) 1, 86 A.C.W.S. (3d) 1109; Fisher v. Fisher (2008), 88 O.R. (3d) 241, 2008 ONCA 11, [2008] O.J. No. 38, 232 O.A.C. 213, 163 A.C.W.S. (3d) 432, 288 D.L.R. (4th) 513, 47 R.F.L. (6th) 235; Hickey v. Hickey, [1999] 2 S.C.R. 518, [1999] S.C.J. No. 9, 172 D.L.R. (4th) 577, 240 N.R. 312, [1999] 8 W.W.R. 485, J.E. 99-1206, 138 Man. R. (2d) 40, 46 R.F.L. (4th) 1, REJB 1999-12847, 88 A.C.W.S. (3d) 1044
[page103]
Statutes referred to Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 15.2(6) Family Law Act, R.S.O. 1990, c. F.3, s. 7
Susan T. McGrath, for appellant. Jacques Rioux, in person.
The judgment of the court was delivered by
1G.J. EPSTEIN J.A.: -- The primary issues raised by the appellant, Jayne Rioux, in this family law appeal are the obligation, if any, of her former husband, the respondent, Jacques Rioux, to pay additional s. 7 [of the Family Law Act, R.S.O. 1990, c. F.3] expenses for their daughter's post- secondary education and ongoing spousal support.
A. Background
2Mr. and Ms. Rioux separated in 2005 after a 21-year marriage. At the time of separation, they were both 45 years old. Their one child, Kayla, then aged 19, was finishing high school and preparing to start a four-year university program at Brock University.
3Following separation, Mr. Rioux, who was then earning $103,984 in contrast to Ms. Rioux's $26,208, paid no support to Ms. Rioux, nor did he contribute to Kayla's education expenses. Ms. Rioux, with family assistance, paid Kayla's tuition, residence and associated expenses, totalling $16,800 for the 2005-2006 academic year.
4On July 6, 2006, Riopelle J. made a temporary order that required Mr. Rioux to maintain Ms. Rioux and Kayla on his group health insurance plan, gave Ms. Rioux exclusive possession of the matrimonial home and the couple's 1999 Cadillac Seville, together with proof of paid up insurance, and required Mr. Rioux to pay child support of $837 per month on estimated income of $95,000. The order also required Mr. Rioux to pay 89 per cent of Kayla's post-secondary education expenses and $700 every two weeks in spousal support. The motion judge specifically left the issues of retroactive child support, post-secondary education contributions and past spousal support to a later hearing.
5Mr. Rioux made none of the payments pursuant to the July 6, 2006 order. On September 14, 2006, Smith J. ordered him to show cause within 15 days for his failure to abide by the order [page104] for outstanding child and spousal support, failing which his pleadings would be struck.
6On October 19, 2006, Riopelle J. struck Mr. Rioux's pleadings. However, the order contained a provision that required Mr. Rioux to continue to receive notice of all future steps in the proceedings and indicated that Mr. Rioux's participation at trial would be at the court's discretion.
7On November 2, 2007, Riopelle J. granted security to Ms. Rioux over Mr. Rioux's interest in the matrimonial home and his future and existing personal property, including the Cadillac, for current and future indebtedness owing under any court order.
8On January 11, 2007, Riopelle J. increased Ms. Rioux's spousal support to $907.70 every two weeks commencing December 7, 2006. This order was made after Mr. Rioux cancelled the insurance on the Cadillac.
9At the time of trial, Mr. Rioux was in breach of several court orders. In addition to his failure to insure the car, he was in arrears under the support orders in the amount of $22,648. This notwithstanding, the trial judge allowed Mr. Rioux to participate in the trial.
10The trial judge granted the divorce, ordered Mr. Rioux to pay guideline child support, a lump sum of $100,000 to cover all retroactive child support, including s. 7 post-secondary education expenses, retroactive spousal support and reimbursement of other presumptively shared expenditures since separation. In addition, the lump sum payment was intended to cover the equalization payment owed by Mr. Rioux to Ms. Rioux. However, as discussed below, it is not clear whether the lump- sum payment was also intended to cover ongoing spousal support. The trial judge further ordered Mr. Rioux to pay costs of the litigation fixed in the amount of $30,000.
11In this appeal, Ms. Rioux seeks an order requiring Mr. Rioux to contribute his proportionate share of Kayla's education expenses, to pay ongoing spousal support, to maintain her and Kayla on his group health insurance plan through his employer as long as this coverage is available to him and to pay a larger lump-sum amount.
12For the reasons that follow, I would allow the appeal, in part, by providing for a specific spousal support order in the amount of $1,500 per month for the period from April 1, 2007 to March 1, 2012, after which a review order will be available to either party.
B. The Trial Decision
13The trial judge started his brief reasons by setting out the history of the marriage and noting that the proceedings that [page105] followed the parties' separation had suffered from Mr. Rioux's failure to actively participate.
14In para. 2 of the reasons, the trial judge set out the backdrop against which he came to his conclusions on the issues outstanding between the parties:
In order to arrive at an equitable determination in this matter it was necessary to consider the history of the litigation and, most significantly, two Temporary Orders made by The Honourable Mr. Justice Riopelle on July 6th, 2006 and January 11th, 2007. Those Temporary Orders include provision for child support and contribution to Kayla's post-secondary education, as well as spousal support. It is noteworthy that the spousal support payments were increased significantly by the second Order. Having regard to the testimony at trial, I have no doubt that there remains significant arrears pursuant to those Orders. I have considered in this decision that these arrears of child support (including contribution to post-secondary education) and spousal support shall be enforced and collected in due course. Furthermore, I have been satisfied on this evidence that [Mr. Rioux] should earn approximately $105,000.00 from his employment during 2007, and I am confident that his position is relatively secure.
15Before setting out the terms of his order, the trial judge, in the third paragraph of his reasons, noted that Mr. Rioux had asked for an equitable assessment of how much he should pay as well as for reasonable terms of payment.
[16] At para. 4, the trial judge made the following orders:
i) The divorce order shall issue upon the Registrar of this Court being satisfied that all of the procedural requirements have been met by [Ms. Rioux]. ii) [Mr. Rioux] shall return and transfer to Beulah Ann Sowa each of the seven firearms listed at Tab 48 of Exhibit #1 (more specifically as indicated on Pages 216 and 217 of the Document Brief of the applicant). In this regard, Ms. Sowa has provided this Court with a copy of her Firearms Possession and Acquisition Licence. iii) Having regard to the amounts previously paid or ordered to be paid by [Mr. Rioux] for Kayla's post-secondary education expenses, this Court is satisfied that the Child Support Guidelines "table amount" is appropriate at this time for their adult child given his annual income of $105,000.00. Therefore it is ordered that [Mr. Rioux] shall pay $916.00 per month commencing August 1st, 2007 to [Ms. Rioux] in full satisfaction of his obligation toward Kayla until such time as she is no longer a dependent, or not in full time attendance at post-secondary education, or until further order of this Court. iv) The assets of the parties are to be distributed according to . . . "[Ms. Rioux's] Position" as listed on the Net Family Property Worksheet dated March 20th, 2007. For ease of reference, I have attached it to this decision as Schedule "A". The matrimonial home shall be transferred to [Ms. Rioux] subject to her assuming the RBC Line of Credit registered on title. As indicated by [Mr. Rioux] during the trial, the lease for the 2004 Avalanche shall be assumed by [Mr. Rioux] and he [page106] shall indemnify and save harmless [Ms. Rioux] for any amounts claimed against her for that lease. v) [Ms. Rioux] is to provide [Mr. Rioux] with all of his tools and his personal belongings presently in her possession, however for specificity this shall not include gifts as between these former partners. vi) In consideration of all issues raised at this trial with respect to retroactive child support including post-secondary education expenses, and retroactive spousal support, and reimbursement of [Ms. Rioux] for all expenditures incurred by her since their separation, and in lieu of an equalization payment from [Mr. Rioux] to [Ms. Rioux] having regard to this evidence, [Mr. Rioux] shall make a lump sum payment of spousal support to [Ms. Rioux] totalling $100,000.00. vii) [Mr. Rioux] is to pay to [Ms. Rioux] costs for this litigation fixed at $30,000.00 all inclusive.
17The trial judge found that a lump sum payment would be appropriate given the parties' respective financial circumstances. He made it clear that the lump-sum payment would be treated neither as taxable income for Ms. Rioux nor as tax- deductible by Mr. Rioux, even if paid in installments.
18At para. 5, the trial judge concluded his reasons as follows:
Since the Temporary Order for spousal support is being terminated by this Order, it is clear that the payment on this lump sum spousal support order fulfills the function of maintenance and therefore should be characterized as maintenance. In effect, the same can be said from my consideration of both the issue of retroactive support and that [Ms. Rioux] should be reimbursed for some of her expenses since separation. I have considered all of these factors in determining both the amount and the form of payment to [Ms. Rioux] from [Mr. Rioux]. I am also mindful of all of the objectives of the Divorce Act in fashioning the appropriate support order from this more than 20 year marriage, and I find that [Ms. Rioux] should continue to be able to satisfy her obligation to be self-supporting in the future.
C. Additional Information
19At the hearing of the appeal, it became apparent that this court did not have up-to-date information about the parties' financial situation.
20Under the circumstances, Mr. Rioux was allowed to provide the court with information about his current finances. At the court's request, counsel for Ms. Rioux, following the hearing, provided additional information about her client's income.
21In oral submissions, Mr. Rioux said that he was doing his best to meet his financial commitments to Ms. Rioux and Kayla. He appears to be up-to-date in his spousal support obligations and is paying down the amount owing under the $100,000 lump-sum award. Documentation provided to the court by Mr. Rioux indicates that after deductions, including those garnished by the [page107] Family Responsibility Office for amounts owing to Ms. Rioux, his monthly take-home pay is currently approximately $2,300. The extensive additional financial information provided by counsel for Ms. Rioux demonstrates that she is earning $13,073.05 from employment plus a net annual amount of $2,548.44 from renting the former matrimonial home.
D. Issues
[22] Ms. Rioux raises the following issues in this appeal: (1) whether the trial judge erred in allowing Mr. Rioux to participate in the trial given the order of Riopelle J. dated October 19, 2006 striking Mr. Rioux's pleadings; (2) whether the trial judge erred in failing to order Mr. Rioux to make additional contributions to Kayla's post-secondary education expenses; (3) whether the trial judge erred in failing to order ongoing spousal support; (4) whether the trial judge erred in failing to order ongoing coverage of Ms. Rioux and Kayla under Mr. Rioux's group health insurance plan through his employer; and (5) whether, in the light of the components the trial judge identified as constituting the lump-sum award, the amount of the award was inadequate.
[23] Ms. Rioux seeks four variations to the order: (1) that Mr. Rioux pay additional child support for post- secondary education expenses in proportion to his relative income; (2) that Mr. Rioux pay ongoing spousal support of $1,500 per month commencing August 1, 2007; (3) that Mr. Rioux maintain Ms. Rioux and Kayla as beneficiaries of his life insurance policy and of his group health insurance plan so long as such coverage is available to him; and (4) that Mr. Rioux pay Ms. Rioux $132,264 as a lump-sum spousal support payment inclusive of retroactive child support, contribution to post-secondary education expenses, retroactive spousal support, other payments that Mr. Rioux undertook to pay, and payment in lieu of equalization.
[page108]
E. Discussion
1. Should Mr. Rioux be allowed to defend himself in the appeal?
24In her factum, Ms. Rioux argues that Mr. Rioux ought not to be allowed to participate in the appeal given his default under previous court orders. Because Ms. Rioux did not press this argument in oral submissions, the court heard the appeal.
25However, given that the argument was raised in written argument, I will briefly address it.
26The trial judge's order was issued on July 13, 2007. As noted above, from that date to the date of the appeal, Mr. Rioux has, to a large extent, been meeting his obligations to Ms. Rioux and Kayla. Furthermore, Mr. Rioux has been voluntarily providing Kayla with additional financial assistance. He supported her while she lived with him when school was not in session. He also purchased a car for her and paid for the insurance.
27This court may exercise its discretion to deny a litigant the opportunity to participate in an appeal when he has willfully breached a court order. Based on Mr. Rioux's submissions, it is apparent that he is honouring, as best he can, his financial obligations to Ms. Rioux and Kayla.
28In the circumstances, I will proceed to consider the merits of the appeal on the basis of the submissions made by both parties.
2. Kayla's university expenses for the academic years of 2007-2008 and 2008-2009
29Ms. Rioux submits that the trial judge should have ordered Mr. Rioux to increase his contribution to Kayla's university education costs. While Kayla is now finished school, Ms. Rioux claims to have contributed disproportionately to Kayla's post-secondary expenses over the past four years and seeks reimbursement.
30I would not accede to this argument.
31First, two aspects of the reasons lead to the conclusion that the trial judge dealt with Mr. Rioux's obligation to contribute to Kayla's education. He included Kayla's education expenses in ordering Mr. Rioux to pay monthly child support of $916. I refer to his description of the monthly child support payments as "in full satisfaction of his obligation toward Kayla until such time as she is no longer a dependent, or not in full time attendance at post-secondary education, or until further order of this Court". In addition, the trial judge specifically identified retroactive child support, including post-secondary education expenses, as forming part of the $100,000 lump-sum payment.
[page109]
32I make two further observations relevant to the trial judge's treatment of this issue. First, as noted above, in the past few years Mr. Rioux has made additional financial contributions to Kayla. Second, it would appear that Kayla has contributed to her own university expenses through her earnings and access to student loans. The exact amount of Kayla's contribution is unknown.
33The trial judge's treatment of Kayla's s. 7 special expenses is entitled to deference: Hickey v. Hickey, [1999] 2 S.C.R. 518, [1999] S.C.J. No. 9, at para. 10. In all of the circumstances, I see no reason to interfere with the exercise of his discretion in this respect.
3. Spousal support obligations
34A consideration of Ms. Rioux's submission that the trial judge erred by failing to order Mr. Rioux to pay ongoing spousal support must start with an analysis of how the trial judge dealt with this issue. An examination of the reasons as a whole, particularly para. 5, leaves it unclear as to whether or not the trial judge provided Ms. Rioux with ongoing spousal support. On the one hand he does refer to the $100,000 lump-sum award as a "lump sum payment of spousal support", suggesting that part of the $100,000 is for spousal support. On the other hand, several aspects of his reasons suggest otherwise. First, the trial judge specifically provides that the award not be taxable. Second, at the end of para. 5, he refers to Ms. Rioux as being self-supporting. Third, and most significantly, the amount of the award is insufficient to include the other items it is said to cover plus an amount that would account for ongoing spousal support -- the equalization payment alone was $90,000.
35These observations lead to the conclusion that the trial judge erred in the way in which he dealt with spousal support. If the trial judge intended to provide Ms. Rioux with ongoing spousal support, he failed to do so as the numbers simply do not add up. If he did not intend to provide Ms. Rioux with spousal support, then in my view, he erred as, based on the analysis that follows, Ms. Rioux is entitled to spousal support.
36The principles and approach for determining spousal support are well-established in the case law: see Bracklow v. Bracklow, [1999] 1 S.C.R. 420, [1999] S.C.J. No. 14, 169 D.L.R. (4th) 577 and Hickey v. Hickey, supra. Spousal support is not merely a consideration of needs and means. In determining the appro-priate quantum of support, compensatory and non- compensatory considerations should be taken into account in an effort to equitably alleviate the adverse consequences of the marriage breakdown.
[page110]
37To determine the amount of support, the court should take into account the objectives of spousal support orders, as set out in s. 15.2(6) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). These objectives are to: (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) insofar as practicable, promote the economic self- sufficiency of each spouse within a reasonable period of time.
38As previously indicated, at the time of trial, Mr. Rioux was required by pre-trial orders to pay Ms. Rioux spousal support of approximately $900 every two weeks. At the time of trial, Mr. Rioux was earning $105,000 and Ms. Rioux, $26,208. At present, Mr. Rioux's earnings remain the same. Ms. Rioux's income is approximately $16,000.
39Ms. Rioux has requested monthly spousal support of $1,500. The amount requested is reasonable. It is well within the spousal support guidelines. Mr. Rioux's ability to pay, while limited, has improved and will continue to do so. Kayla is now on her own and Mr. Rioux's debt arising from the lump- sum award will quickly be paid off.
40In my view, Ms. Rioux is entitled to spousal support beyond that which she received to the date of trial. This was a traditional marriage of over 20 years' duration in which Mr. Rioux worked outside of the home and Ms. Rioux managed the household, raised Kayla and worked part-time. The important role Ms. Rioux played in the family left her economically disadvantaged by the breakdown of the marriage.
41This takes me to the difficult issue of duration of spousal support. In my opinion, in effectively leaving Ms. Rioux to her own devices, the trial judge failed to adequately address her needs and in particular the fact that her reasonable monthly expenses exceeded her monthly income by a significant amount. Further, the trial judge appeared to conclude that Ms. Rioux was then, or could soon become, self- sufficient. This conclusion was not supported by the evidence.
42Self-sufficiency is a relative concept; it relates to achieving a reasonable standard of living having regard to the lifestyle [page111] the couple enjoyed during their marriage. In this case, by the time of separation, the parties anticipated sharing a joint income of about $125,000.
43While Ms. Rioux did remain in the work force and is relatively young, it is obvious that she will need some time to reach the goal of self-sufficiency. I would not interfere with the trial judge's decision that an indefinite spousal support order was not warranted. However, Ms. Rioux is entitled to further non-compensatory transitional support to soften the impact of the decrease in the standard of living caused by the marriage break-up: see Fisher v. Fisher (2008), 2008 ONCA 11, 88 O.R. (3d) 241, [2008] O.J. No. 38 (C.A.).
44In all of the circumstances, including the length of the Rioux's marriage, each party's contribution to the couple's standard of living, their ages and their incomes -- current and prospective -- I would order spousal support in the amount of $1,500 per month for a further five years, commencing April 1, 2007 to March 1, 2012, at which time spousal support will be subject to review by either party. An order of this nature complies with the spousal support objective of recognizing Ms. Rioux's economic disadvantage caused by the marriage breakdown while also encouraging her to become self-sufficient.
4. Health care benefits and life insurance
45In oral argument, neither party addressed Ms. Rioux's written request that Mr. Rioux maintain her and Kayla on his health care benefits and as sole beneficiaries of his life insurance policies so long as he is required to pay support. As noted above, this obligation formed part of Riopelle J.'s order of July 6, 2006.
46These requests are both reasonable and routinely granted. I would allow the appeal in relation to this issue and make an order to this effect, but limited to Ms. Rioux since Mr. Rioux is no longer obligated to provide child support for Kayla.
5. Lump sum award
47Ms. Rioux also requests an increase in the $100,000 lump-sum award to $132,264. However, in argument, counsel for Ms. Rioux candidly admitted that her client's main objective in this appeal was to address the issue of what she argued was the inadequate provision for spousal support. Against this background and in the light of the fact that I would vary the order so as to provide for additional spousal support, I would not interfere further with the lump-sum award.
[page112]
F. Disposition
48For these reasons, I would allow the appeal in part by ordering Mr. Rioux to pay spousal support to Ms. Rioux in the amount of $1,500 per month commencing April 1, 2007 and continuing on the first day of each month until March 1, 2012. I would further provide that unless the order is withdrawn from the office of the Director, Family Responsibility Office, it shall be enforced by the director, and amounts owing under the order, shall be paid to the director, who shall pay them to the person to whom they are owed, and that after March 1, 2012 spousal support may be reviewed at the instigation of either party. I would also order Mr. Rioux to maintain Ms. Rioux as the sole beneficiary on his life insurance policy as well as of his health care benefits for as long as he is covered through his employment and is obliged to support Ms. Rioux.
49Since success has been divided, I would make no order as to costs.
Appeal allowed in part.
