DATE: 20020828 DOCKET: C36173
COURT OF APPEAL FOR ONTARIO
SHARPE, CRONK and GILLESE JJ.A.
BETWEEN:
RAYMOND GERARD DESRAMAUX
David Ziriada for the appellant
Petitioner (Respondent)
- and -
SHIRLEY ANNE DESRAMAUX
Leo Arseneau for the respondent
Respondent (Appellant)
Heard: April 23, 2002
On appeal from the judgment of Justice Ian M. Gordon dated March 20, 2001.
GILLESE J.A.:
[1] Shirley Anne Desramaux appeals from the judgment of Justice I.M. Gordon dated March 20, 2001 in which he dismissed her claim for spousal support and ordered her to repay child support of $5,142.76.
[2] For the reasons that follow, I would allow that part of the appeal relating to spousal support.
BACKGROUND
[3] Mr. and Ms. Desramaux were married on October 31, 1971 in Windsor, Ontario. At the time of marriage, Ms. Desramaux was working as a nurse’s aid at a Windsor hospital. She began work at the hospital in the housekeeping department after leaving school at age 18. She left school without having completed grade 11. She continued work as a nurse’s aid until April or May 1974 when she was seven months pregnant with her first child. She did not return to work outside the home until 1989 when she became a part-time sales representative. She has never returned to school or obtained further training.
[4] At the time of marriage, Mr. Desramaux was working for the Toronto Dominion Bank. He remained employed with the bank continuously throughout the marriage and after separation. At the time of marriage, Mr. Desramaux’s annual income was just over $6000.
[5] The Desramaux have two children. Jason was born on July 19, 1974 and Christa on June 4, 1977.
[6] During the 20-year marriage, the family moved on six different occasions to enable Mr. Desramaux to take transfers within the bank and further his career. The first move, from Windsor to Gravenhurst, occurred when Jason was 3 months old. The family remained in Gravenhurst for about a year and then moved to Barrie, where Christa was born. About a year and a half later, Mr. Desramaux accepted a promotion to the head office in Toronto. He commuted from Barrie. Next, the family moved to Oshawa where they remained for two and a half years. From there, the family moved to Bancroft where Mr. Desramaux held the position of bank manager. The family then moved to Lively, outside Sudbury in July of 1981. As with the other moves, this was done to accommodate a promotion for Mr. Desramaux.
[7] The marriage was a traditional one in that Mr. Desramaux was employed throughout and Ms. Desramaux gave up her employment to raise the family’s two children. Although she did not return to employment outside the home until approximately two years before separation, Ms. Desramaux began babysitting in the family home about two years after the family’s final move to Sudbury in July of 1981. She babysat two or three children, five days per week until taking up a position as sales representative with the Canadian Blind Outlet. The work was part time and seasonal. For example, in 1991 Ms. Desramaux was laid off from her position from January until June. While working part time, Ms. Desramaux retained primary responsibility for running the household.
[8] In 1989, Ms. Desramaux earned $14,269.90. In 1990, she earned $29,172.36. In 1991, she earned $7,421.39 from employment and received $10,434.00 of unemployment insurance benefits.
[9] Mr. Desramaux earned income of $71,361, $66,644.26 and $70,123.75 in 1989, 1990 and 1991, respectively.
[10] Mr. Desramaux left the matrimonial home on July 26, 1991 taking his things from the home while his wife and children were absent. He did so without advance discussion. Ms. Desramaux was extremely upset and confused at the time and for at least a year following. As she had no family in the Sudbury area, in August of 1991 she quit her job and moved with the children to Amherstburg where they lived with Ms. Desramaux’s sister and her family. Her mother and stepfather and brother and his family all lived nearby. At Thanksgiving of that year, Ms. Desramaux and the children moved into a two-bedroom trailer in Essex belonging to her mother and stepfather, who were spending the winter months in Florida. She understood that she and the children would have to leave the trailer when her mother and stepfather returned from Florida in April of 1992.
[11] Mr. Desramaux gave Ms. Desramaux no financial support following separation. Her unemployment benefits ran out in January of 1992.
[12] Mr. Desramaux acknowledged that he was asked for support and that he declined to pay any notwithstanding that he put between $9,000 and $12,000 into renovations for a cottage that he had recently purchased.
[13] In the months leading up to the signing of the separation agreement, Mr. Desramaux had an annual income of over $70,000. He paid no child or spousal support and was sufficiently financially well off that he was able to spend large amounts of money to renovate a recreational property that he had purchased shortly before separation. Ms. Desramaux had two children to support, her unemployment insurance was running out, she was emotionally distraught and she knew that she and the children would have no accommodation after April of 1992.
[14] The lawyer acting on behalf of Mr. Desramaux prepared a proposed separation agreement and sent it to Ms. Desramaux’s counsel on August 16, 1991. Child support of $1,500 per month was proposed. No spousal support was offered.
[15] Counsel for Mr. Desramaux prepared and sent a second proposed separation agreement on September 27, 1991. Child support of $1,200 per month and spousal support of $300 per month were proposed.
[16] The sale of the matrimonial home was scheduled to close in late February of 1992. Ms. Desramaux returned to Sudbury to meet with her lawyer to sign the papers to close the sale of the matrimonial home. At the same time, she signed a third proposed separation agreement that had been prepared by counsel for Mr. Desramaux. It provided for $1,000 per month of child support and $500 per month of spousal support.
[17] In each year following separation, Mr. Desramaux’s income increased.
[18] Ms. Desramaux was unable to secure employment outside of her home and began babysitting within the home.
[19] At the time of trial, Mr. Desramaux was earning $102,400 per year, an income that was slightly less than what he had earned in each of the previous two years. Ms. Desramaux’s sole income was $150 per week from babysitting in her home.
[20] At the time of trial and for approximately eight months prior thereto, Ms. Desramaux suffered from hypertension, high blood pressure and ulcers.
[21] During the proceedings, Mr. Desramaux was ordered to pay a lump sum of $3,000 spousal support and interim spousal support of $1,000 per month for six months commencing October 1, 1998.
[22] The trial judge dismissed Ms. Desramaux’s claim for spousal support on the basis that the separation agreement provided time-limited spousal support and contained a release and waiver of further claim to spousal support.
SECTION 33(4) OF THE FAMILY LAW ACT
[23] Section 33(4)(a) of the Family Law Act, R.S.O. 1990, c. F.3, gives the court the power to set aside a provision for support or a waiver of the right to support in a domestic agreement where the provision or waiver “results in unconscionable circumstances”.
[24] Section 33(4) reads as follows:
33(4) The court may set aside a provision for support or a waiver of the right to support in a domestic contract or paternity agreement and may determine and order support in an application under subsection (1) although the contract or agreement contains an express provision excluding the application of this section,
(a) if the provision for support or the waiver of the right to support results in unconscionable circumstances: …
[25] The trial judge ruled that section 33(4) of the Family Law Act, supra, did not apply. It appears that his reason for so holding was that it had not been pleaded. The relevant portion of his reasons is set out now.
[42] It is noted that Mrs. Desramaux specifically asks the Separation Agreement be set aside under the terms of the Family Law Act. The section of the Family Law Act that applies then is section 56(4). Section 33(4) does not apply. As is pointed out in Scheel v. Henkleman [sic] (unreported Court of Appeal, August 15, 2000. Borins, J.A. for himself, McMurtry, J.A. and Feldman J.A.):
“As for an unconscionable agreement, it may be set aside under section 56(4) of the F.L.A. which is a codification of the general law of contract applicable to unconscionable agreements. It differs from section 33(4) which operates in respect of a valid subsisting domestic contract and enables the Court to set aside a support provision or a waiver of right to support in the contract where such provision “results” in unconscionable circumstances.”
[43] The result, as I understand it, is that in a section 56(4) consideration, the conditions and circumstances at the date of signing are significant whereas under section 33(4), resulting unconscionable circumstances are significant. Applied to our facts then, Mrs. Desramaux’s present circumstances, if they are unconscionable, are irrelevant to our focus for the relief she requests, that being to set aside the agreement as being unconscionable. The relief claimed is to set aside the agreement. There is nothing claimed in the alternative.
[26] With respect, I am of the view that the trial judge erred in refusing to consider the applicability of s. 33(4). In Ms. Desramaux’s counter-petition, in addition to seeking spousal support pursuant to the Divorce Act, R.S.C. 1985, (2nd Supp.), c. 3, she expressly sought interim and permanent spousal relief pursuant to the terms of the Family Law Act, supra. She also sought an order setting aside the separation agreement but that is in addition to the request for spousal support pursuant to the Family Law Act, supra. Moreover, the pleadings clearly indicate that she sought relief pursuant to s. 33(4). Paragraph 36 of the counter-petition, for example, uses the very language of s. 33(4) – “The waiver of the Respondent’s right to support in the separation agreement results in unconscionable circumstances”. While it would have been preferable that the pleadings made explicit her reliance upon s. 33(4), the failure to do so was not a bar to arguing it at trial given the pleadings.
[27] In Scheel v. Henkelman (2001), 2001 24133 (ON CA), 11 R.F.L. (5th) 376 (C.A.), this court held that s. 33(4) is directed not to unconscionable agreements but to unconscionable results of such agreements. An agreement that is fair and reasonable when it is signed may, through later events, result in unconscionable circumstances. “Unconscionable” was held to mean “shocking to the conscience”.
[28] As acknowledged by both parties, the separation agreement was premised on the expectation that Ms. Desramaux would be self-sufficient within five years, that she would have a career and that career would not consist of babysitting. Ms. Desramaux sacrificed her career potential in order to advance that of her husband. Today she is unemployed with her only source of income coming from in-home babysitting. She earns approximately $150 per week. There is no realistic expectation that her employment situation will change, given her limited education and outdated, sparse work experience. She does not have enough money to purchase clothing for herself or take a vacation. She is forced to live on her savings to survive. She has no pension or health benefits following the granting of the divorce. Mr. Desramaux, on the other hand, has earned approximately $100,000 per year for several years. His financial statement of February 26, 2001 shows an expenditure of $40 per week for entertainment, $20 per week for recreation, $200 per month for vacation, $46 per week for alcohol and tobacco and the insurance and other associated expenses for his two recreational properties.
[29] Ms. Desramaux sacrificed throughout the marriage in order to advance her husband’s career and with the expectation that eventually they would both enjoy the benefits associated with her husband’s career advancement. To leave Mr. Desramaux to enjoy such benefits while Ms. Desramaux lives on the minimal wages she can earn as a babysitter is shocking to the conscience. The waiver of spousal support provision is set aside pursuant to s. 33(4) on the basis that it resulted in unconscionable circumstances.
[30] The appeal was argued on a number of grounds including invalidity of the separation agreement, change in circumstance, duress, unconscionability and lack of disclosure. In view of the conclusions I have reached on s. 33(4) of the Family Law Act, supra, it is unnecessary to deal with those other grounds of appeal.
QUANTUM OF SPOUSAL SUPPORT
[31] Section 33(4) goes further than merely giving the court the power to set aside a provision for support or a waiver of the right to support. It expressly empowers the court to “determine and order support”. Rather than ordering a new trial to determine the appropriate amount of support, I am satisfied that there is sufficient evidence before this court to enable it to do so.
[32] In making that determination, I begin by considering the parties’ positions. Ms. Desramaux asks that spousal support be set at $2,500 per month for the period from March 1, 1998 to August 1, 2000 and thereafter in the amount of $3,000 per month subject to a set-off for the interim support ordered and paid in these proceedings prior to trial. Mr. Desramaux made no submissions on the quantum of spousal support sought.
[33] The principles and approach to be followed when determining spousal support are now well-established. See Bracklow v. Bracklow (1999), 1999 715 (SCC), 169 D.L.R. (4th) 577 (S.C.C.) and Hickey v. Hickey (1999), 1999 691 (SCC), 172 D.L.R. (4th) 577 (S.C.C.). Spousal support is not merely a consideration of needs and means. It is to be based on a model that blends a consideration of compensatory, non-compensatory and contractual considerations.
[34] The objectives of spousal support orders, as set out in ss. 15.2(6) of the Divorce Act, supra, are to reflect the principle that the economic consequences of the marriage and of the separation and divorce should be equitably shared between former spouses. These objectives are to:
a) recognise any economic advantages or disadvantages 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 he marriage; and
d) insofar as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[35] This was a 20-year traditional marriage in which Ms. Desramaux sacrificed her career and her career potential in order to further that of Mr. Desramaux. She bore primary responsibility for the running of the household and raising of the children throughout the marriage. She contributed financially to the family when she could, for example by babysitting other children in the home. She and the children moved often in order to further Mr. Desramaux’s career. She continued with primary responsibility for the children after separation with limited child support. She has little education and training and no reasonable prospects of obtaining the same. Mr. Desramaux, on the other hand, has reaped the financial benefits of a successful banking career through a family that supported him in that career. A consideration of the parties’ financial documentation shows that Ms. Desramaux is in need and that Mr. Desramaux has means. The economic consequences of marriage breakdown have been severe for Ms. Desramaux.
[36] The comments of Proudfoot J.A. in Story v. Story (1989), 1989 5317 (BC CA), 23 R.F.L. (3d) 225 (B.C. C.A.) at p. 245, which were approved by L’Heureux-Dube J. in Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813 at pp. 844 – 45, are apt:
It is often, in my opinion, totally unrealistic to expect that a 45 or 50-year-old spouse who has not been in the job market for many, many years to be retrained and to compete for employment in a job market where younger women have difficulty becoming employed. Employment and self-sufficiency are simply not achievable. In those cases, the obligation to support must surely be considered to be permanent. That obligation must flow from the marriage relationship and the expectations the parties had when they married.
[37] Ignoring tax implications, the spousal support requested will give Ms. Desramaux income of $30,000 – $36,000 annually plus her babysitting income of $7800. Mr. Desramaux’s annual income of $102,000 will be reduced commensurately. I am of the view that the amount of spousal support sought is justified and appropriate in the circumstances.
CHILD SUPPORT
[38] Mr. Desramaux paid child support pursuant to the terms of the separation agreement. As a result, he paid substantially less than he would have been required to pay pursuant to the Guidelines. He made no contributions to the children’s post secondary education expenses although he did give Christa and Jason $2,000 and $1,000 respectively in early 1998 and he did make modest contributions directly to the children for gas and car insurance. It seems unfair in these circumstances that Ms. Desramaux has been ordered to repay an overpayment in respect of Jason for the period after he attained the age of majority but was no longer in university. During the period, Jason was still living at home with his mother and was dependent upon her.
[39] However, it cannot be said that the trial judge erred in making his determinations in respect of child support. There is no error in choosing the date the counter-petition claiming spousal support was filed – namely, December 9, 1997 – as the date from which to award retroactive child support. It was within the exercise of his discretion to decline to order Mr. Desramaux to retroactively pay a proportionate share of post-secondary expenses. There is no error in the calculations he made as to child support payable and paid.
[40] Deference is to be shown to the support orders made by trial judges. Hickey v. Hickey, supra. This part of the appeal is, therefore, dismissed.
CONCLUSION
[41] For these reasons, I would allow the appeal in part and award Ms. Desramaux spousal support in the amount of $2,500 per month from March 1, 1998 to August 1, 2000 and thereafter in the amount of $3,000 per month subject to a set-off in the amount of $9,000 reflecting the interim support ordered and paid in these proceedings prior to trial.
[42] The balance of the appeal is dismissed.
[43] The appellant has enjoyed success on the major issue under appeal. She is awarded costs of the trial and the appeal. Costs of the appeal are fixed in the amount of $10,000 plus GST plus disbursements.