DATE: 20061002
DOCKET: C44203
COURT OF APPEAL FOR ONTARIO
GILLESE, JURIANSZ and LAFORME JJ.A.
B E T W E E N :
DULCIE MARY IERULLO
(Applicant/Appellant)
- and -
ANTHONY JOSEPH IERULLO
(Respondent)
Counsel: Tanya Cianfarani for the appellant Maxine M. Kerr for the respondent
Heard: September 20, 2006
On appeal from the order of Justice Sherrill M. Rogers of the Superior Court of Justice dated August 18, 2005.
GILLESE J.A.:
[1] By order dated August 18, 2005, Rogers J. reduced spousal support payable to the appellant from $2,200 per month to $1,150 per month. The amount was based on the respondent’s income from Ontario Hydro[^1] of $97,800 per year and imputed income of the appellant of $25,000 per year. The order also provides that during any Ontario Hydro strike, spousal support is to be paid at the rate of $600 per month.
[2] The appellant appeals. She seeks to have the matter of spousal support decided by way of trial.
BACKGROUND
[3] The parties were married on June 1, 1985, and have three children. They separated in September 2001, after sixteen years of marriage.
[4] A final order dated February 18, 2003, made on consent, required the respondent father to pay spousal support of $2,200 per month to the appellant mother (the “Final Order”). The quantum of spousal support was based on the respondent’s having an annual income of $96,000, of which $82,000 was his 2002 annual income from Ontario Hydro, where he works as an engineer, and the balance was self-employment income.
[5] Paragraph 23 of the Final Order provides that spousal support is not reviewable before September 2004:
- Based on the applicant’s foregoing representations, the quantum of spousal support shall not be reviewable by the respondent until September 2004 in anticipation of the applicant’s graduation and possible employment.
[6] The representations referred to in para. 23 are found in para. 19, 21 and 22 of the Final Order. In essence, they refer to the parties’ agreement that the appellant would complete her training to become a nurse and become self‑sufficient.
[7] On October 27, 2004, the respondent brought a motion in which he sought to have the spousal support obligation reviewed. He asked that the court impute income to the appellant and reduce the amount of spousal support he was to pay. On December 20, 2004, the appellant responded with a motion in respect of other matters, including custody and child support. Only spousal support is in issue in this appeal.
[8] The appellant initially resisted the respondent’s motion on the basis that three matters precluded her completion of the nursing program: health issues, childcare responsibilities and her obligations to care for her elderly parents.
[9] The motions were scheduled to be heard by way of trial. However, after various motions to strike the appellant’s pleadings for failure to produce OHIP summaries and other medical disclosure, the appellant agreed to take her health issues and responsibilities in respect of her parents “off the table”. Following a further motion by the respondent, in an endorsement dated June 22, 2005, Rogers J. vacated the order for a trial on the basis that there were no credibility issues.
[10] As previously stated, in the order appealed from, the motion judge reduced spousal support from $2,200 per month to $1,150 per month and to $600 per month when Ontario Hydro was on strike. The motion judge noted in her reasons that the Ontario Hydro strike had “loomed many months before taking place, but the Respondent Father appears not to have provided for the potential problem”.
[11] In her reasons, the motion judge states that it is “unfortunate” that the appellant withdrew from a reasonable educational plan when she was getting close to completion. She also states that the appellant’s childcare responsibilities for the two children at home, aged 8 and 14 in 2003, cannot explain the non-completion of her education and failure to obtain a job. The motion judge refers to no other factors when setting the quantum of spousal support.
THE PARTIES’ POSITIONS
[12] The appellant deposed that she was unable to complete her nursing studies as a result of childcare responsibilities and the respondent’s refusal to assist her with the children. Consequently, she says, she could not complete the clinical portions of her program which required early morning, shift and weekend work. She maintains that she is essentially a single parent and that the respondent has little to do with the children. One of the children, Daniel, is a goaltender on a Bantam A hockey team and has professional aspirations. His hockey requirements lead to her having evening and weekend obligations. He also has special needs due to speech difficulties. The two younger children go to different schools and she must drive them each morning. Evenings are taken up with preparing dinner for the children, hockey responsibilities and helping with homework. The youngest child is too young to be left unsupervised. She deposes that when married to the respondent, she had been able to maintain her nursing studies because the respondent helped with childcare responsibilities. However, between changes to the nursing program following the parties’ separation and the respondent’s lack of assistance with the children, she was unable to complete the program.
[13] Attached to the appellant’s affidavit of December 20, 2004, is a letter from her family physician that states that the appellant tried to attend nursing school but that between school and taking care of the children, her anxiety and depression worsened to the point that she was “overwhelmed” and “severely depressed”. Attached to her affidavit dated August 4, 2005, is a letter from the Associate Dean of Nursing at Humber College dated June 29, 2005. In that letter, the Associate Dean says that the appellant tried to complete the program but that the clinical component of the program requires students to be on duty early in the day and involves shift and weekend work. It says that due to lack of a support system, the appellant was forced to drop out of the program. The letter concludes by saying that the appellant had done everything in her power to be successful and that those in the program had worked with her to try and resolve the problems that she faced.
[14] The appellant also deposed that she had requested information from the respondent as to the contribution made by the respondent’s new spouse to the family expenses but he refused to disclose that information. That information was said to be relevant particularly to the question of his ability to pay spousal support during a strike. She also deposed that the respondent had refused to provide income tax returns which the appellant believes will show that he continues to earn substantial self-employment income.
[15] The respondent deposed that he understood that the appellant was going to complete the nursing program and that he had never been told otherwise. He stated that the appellant gave him no notice of her intention to drop out of the nursing program and that she did not ask for any assistance so as to avoid having to take such a step. He deposed that he did not believe that the appellant had used diligent and best efforts to complete the program and that the reasons given by the appellant for her inability to complete the program were simply a tactic. He also deposed that, in view of the appellant’s lack of good faith in completing her studies, she should be treated as having finished the program and a level of income commensurate with her having obtained a position in the nursing field should be imputed to her.
ANALYSIS
[16] In making the order under appeal, the only evidence before the motion judge were the competing affidavits of the parties. There were no other affidavits and no cross-examinations on affidavits had been conducted.
[17] The central issue raised by the respondent’s motion and considered by the motion judge was whether the appellant’s childcare responsibilities prevented her from completing her educational program. The conclusions she reached reflect that the motion judge accepted the evidence of the respondent and rejected that of the appellant. Given the competing positions of the parties, the motion judge’s conclusions could be reached only by deciding matters of credibility. Although motions to change a final order or agreement can be dealt with by way of written materials, rule 15(13) of the Family Law Rules, O. Reg. 114199, makes it clear that if a matter cannot be properly dealt with based on the filed material, a trial is warranted.[^2]
[18] In my view, because of the need to make credibility findings on a significant matter in dispute and as the record contains only the competing affidavits of the two parties, the motion could not be properly decided without a trial.
[19] Furthermore, spousal support could not be set absent a consideration of all of the relevant factors. While the parties disagree as to whether the respondent’s motion should be decided as if it were a variation application or as an application in the first instance, they agree that all relevant factors, objectives, and circumstances must be considered when determining spousal support.
[20] In Moge v. Moge, [1992] 3 S.C.R. 813, the Supreme Court of Canada makes clear that all of the four objectives in s. 15 of the Divorce Act, R.S.C. 1985 (2d. Supp.), c. 3, must be considered when setting spousal support and that no single objective, including that of self-sufficiency, is paramount. The majority also stressed the need to consider the impact of childcare responsibilities on the custodial parent saying, at para. 81:
If childcare responsibilities continue past the dissolution of the marriage, the existing disadvantages continue, only to be exacerbated by the need to accommodate and integrate those demands with the requirements of paid employment. In that regard, I adopt without reservation the words of Bowman J. in Brockie v. Brockie (1987), 5 R.F.L. (3d) 440 (Man. Q.B.), aff’d (1987), 8 R.F.L. (3d) 302 (Man. C.A.), at pp. 447‑48:
It must be recognized that there are numerous financial consequences accruing to a custodial parent, arising from the care of a child, which are not reflected in the direct costs of support of that child. To be a custodial parent involves adoption of a lifestyle which, in ensuring the welfare and development of the child, places many limitations and burdens upon that parent. A single person can live in any part of the city, can frequently share accommodation with relatives or friends, can live in a high‑rise downtown or a house in the suburbs, can do shift work, can devote spare time as well as normal work days to the development of a career, can attend night school, and in general can live as and where he or she finds convenient. A custodial parent, on the other hand, seldom finds friends or relatives who are anxious to share accommodation, must search long and carefully for accommodation suited to the needs of the young child, including play space, closeness to daycare, schools and recreational facilities, if finances do not permit ownership of a motor vehicle, then closeness to public transportation and shopping facilities is important. A custodial parent is seldom free to accept shift work, is restricted in any overtime work by the daycare arrangements available, and must be prepared to give priority to the needs of a sick child over the demands of an employer. After a full day’s work, the custodial parent faces a full range of homemaking responsibilities including cooking, cleaning and laundry, as well as the demands of the child himself for the parent’s attention. Few indeed are the custodial parents with strength and endurance to meet all of these demands and still find time for night courses, career improvement or even a modest social life. The financial consequences of all of these limitations and demands arising from the custody of the child are in addition to the direct costs of raising the child, and are, I believe, the factors to which the court is to give consideration under subs. 7(b).
[21] I note in this regard that the parties’ circumstances have changed since the time of the Final Order so that it cannot be assumed that the only factor that has changed is that relating to self-sufficiency. Some of the changes which it seems apparent would impact on the quantum of spousal support include the following. The appellant’s expenses are different. She lost the home in which she and the children had been residing. She says this occurred due to the respondent’s arrears of support. She and the children now live in a home owned and paid for by her parents but for which she says she must pay rent, utilities and maintenance. The oldest child has left home to attend university. The middle child has achieved significant success in hockey with consequential changes in his need for parental and financial support. The respondent has remarried and moved residence. A number of changes appear to have occurred in respect of the respondent’s financial position including a significant increase in his employment income[^3] and the likely contribution towards family expenses that his new spouse may make, including during a strike at Ontario Hydro.
[22] In the circumstances of this case, a trial, preceded by full financial disclosure, is required. At trial, the credibility issues can be resolved and a determination made on the issue of the appellant’s non-completion of her educational program. That determination would then be one factor in the larger consideration necessary to set spousal support.
DISPOSITION
[23] The appeal is allowed and paragraphs 10 and 11 of the order below are set aside. An order shall go directing a trial of the issue of spousal support in accordance with these reasons. The respondent husband is ordered to provide full and complete financial disclosure. In the interim, spousal support of $2,200 per month shall remain payable as per the Final Order.
[24] Costs of the appeal to the appellant, fixed at $5,000.00, inclusive of disbursements and GST. We were advised that costs of the motion below were awarded against the appellant in the amount of $4,000 although no order appears to be in the record. In light of the outcome of the appeal, the appellant is entitled to her costs below. Any order to the contrary is set aside and replaced with an order to that effect. Such costs are to be fixed by agreement of the parties, failing which by assessment.
RELEASED: October 2, 2006 (“EEG”)
“E. E. Gillese J.A.”
“I agree R. G. Juriansz J.A.”
“I agree H. S. LaForme J.A.”
[^1]: I use the term “Ontario Hydro” to refer also to the respondent’s successor employer, Hydro One.
[^2]: Rule 15(13) reads as follows: If the court is of the opinion that a motion, whether made on consent or not, cannot be properly dealt with because of the material filed, because of the matters in dispute or for any other reason, the court may give directions, including directions for a trial.
[^3]: In 2002 when the Final Order was made, the respondent made employment income of $82,000. His employment income in 2004 was in excess of $97,000.