SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-06-057502-01
DATE: 20120413
RE: Edmund Marcinek v. Halina Marcinek
BEFORE: Fragomeni J.
COUNSEL:
Edmund Marcinek, In Person
Halina Marcinek, In Person
HEARD: April 5, 2012
E N D O R S E M E N T
[ 1 ] The motion before me dealt with the following issues:
Spousal Support;
Termination of Child Support and reimbursement of overpayments of child support to the husband.
[ 2 ] The parties were married on January 24, 1976. They separated on November 26, 2005 and were divorced on June 18, 2008.
[ 3 ] The child who is the subject matter of this motion is Alex Marcinek born September 17, 1990. Alex lives with his mother.
[ 4 ] On November 27, 2007, in accordance with Minutes of Settlement filed, Justice Corbett made the following order, in part:
Child Support
The Applicant shall pay to the Respondent child support for the child in the amount of $560.00 per month based on his 2006 income of $60,330.96 commencing December 1, 2007;
The Respondent shall immediately notify the Applicant by registered mail of any event that would cause the child to no longer be defined as a child of the marriage for support purposes and shall sign all documentation with the Family Responsibility Office to cease child support forthwith. The Respondent shall reimburse any child support payments to the Applicant that she is paid after the child ceases to be a child of the marriage.
Spousal Support
- The Applicant shall pay to the Respondent periodic spousal support in the amount of $1,100.00 per month, commencing December 1, 2007.
Issue: Spousal Support
[ 5 ] In 2007 the husband earned $60,330. At this time the husband’s income is $64,700. The husband submits that the Court should impute income to the wife at the minimum wage of $10.50 per hour. At 40 hours per week this would equal approximately $19,000 per year.
[ 6 ] The wife submits that due to health issues over the years she has not worked for 15 years. She has been looking for work for the past two years as she is now more emotionally balanced to do so. However, she is now 57 years of age and it is difficult for her to secure employment. The wife seeks spousal support according to the spousal support guidelines in the range of $1,609 per month at the low end to $2,032 at the high end.
[ 7 ] The husband’s position is twofold. Firstly income should be imputed to the wife in the sum of $19,000, at a minimum wage salary and spousal support should be calculated on that basis. Secondly from her spousal support amount the Court should deduct the sum of $317 per month over 5 years representing the overpayment for child support. The child support overpayment is $19,040. The husband submits that he will go on pension in 5 years so $19,040 divided by 60 months is $317 per month. This amount then should be deducted from whatever spousal support payments are ordered.
Issue: Child Support
[ 8 ] The husband submits that the child has not been in full-time attendance at school since the 2008/2009 academic year. In addition to that, although there is nothing impeding his ability to work, he has not done so. In those circumstances he was no longer a child of the marriage and child support payments should have ceased. The wife did not advise him of the child’s status in accordance with Justice Corbett’s order. The husband calculates the overpayment at $19,040.
[ 9 ] The wife argues that there has not been any overpayments as Alex has been in school. Alex was at St. Martin Secondary School for the 2008/2009 school year. By letter dated January 30, 2009, the school wrote:
Please be advised that the above-named student is registered at St. Martin Secondary School. He is a full-time student in Grade 12. The school year ends June 26, 2009.
[ 10 ] The wife advises that Alex did not graduate as he did not pass three courses. After this Alex took an ILC course. By letter dated October 11, 2011, the Independent Learning Centre advised as follows with respect to the one course he took:
Congratulations! You have successfully completed your ILC course. If you would like to earn your Ontario Secondary School Diploma (OSSD) with the ILC let the ILC assess your diploma requirements by providing the following:
Certificate
This is to certify that Alex James Marcinek has achieved standing in
Parenting HPC30A
Final Mark – 97.00%
This course has a value of 1.00 credit towards an Ontario Secondary School Diploma.
[ 11 ] By letter dated February 13, 2012 the Admissions Office at Sheridan College advised Alex as follows:
Dear Alex,
Thank you for your interest in Sheridan. We have assessed your application, and you have met the admission requirements; however, due to increased applicant demand, you have been placed on a waiting list for the program listed above.
Applicants are selected from the waitlist, in some cases, up to the fifth day of classes. Should space become available in the program, we will contact you. If you have applied to other Sheridan programs, you may receive a separate status letter for each. If you choose to accept another offer of admission, you will not lose your place on our waiting list.
A list of Sheridan programs accepting new applications can be accessed on Sheridan’s website at programstatus.sheridaninstitute.ca.
We look forward to seeing you at Sheridan.
Admissions Office
Re: Spousal Support
[ 12 ] The husband’s income at this time is not much different than it was in 2007 when the consent order was made by Justice Corbett. At that time he was earning $60,330.96. At this time he is earning about $65,000.00. His Notice of Assessment for 2010 shows a line 150 income of $64,702.00
[ 13 ] The husband did not file his Notice of Assessment for 2011 nor did he file current paystubs confirming his 2012 income to date.
[ 14 ] I am not satisfied on the record before me that any income should be imputed to the wife. The wife is now 57 years of age. She has not worked for 15 years. She has applied for work but to date has not been able to secure employment. She advises that she will continue to look for work.
[ 15 ] The spousal support guidelines with the husband’s income at $65,000 and the wife’s income at nil and with no child support payments, give a range of
$2,031 - low
$2,370 - mid
$2,592 - high
[ 16 ] In her Financial Statement sworn April 29, 2011, the wife sets out the following monthly expenses:
Rent - $ 1,039.75
Car Insurance & Licence - $ 120.00
Clothing - $ 20.00
Alcohol/Tobacco - $ 20.00
Telephone - $ 39.00
Cable - $ 75.00
Internet - $ 90.00
Groceries - $ 400.00
Laundry/Dry-cleaning - $ 25.00
$ 1,828.00
[ 17 ] Alex resides with his mother and while he continues to do so he will be able to contribute to some of these expenses at it relates to rent and food.
[ 18 ] In all of the circumstances, then, I am prepared to fix the spousal support at $1,600 per month.
[ 19 ] The wife will be obligated to continue to look for work and advise the husband of those efforts.
[ 20 ] The child support payments will be terminated and as a result of no longer being obligated to pay child support, the husband will be in a position to pay this amount for spousal support.
Re: Child Support
[ 21 ] As I just indicated I am satisfied that the child support payment shall be terminated as of April 1, 2012. Firstly, the evidentiary record does not establish that Alex is a dependent. Alex did not complete his high school diploma at the end of his 2008/2009 school year. The ILS course is not a full time attendance at school and from the record it appears it took him until October 2011 to complete just one course. There is nothing before me to demonstrate why he was not able to work during that time to present. The wife submits that during that time to present Alex did try to find employment but there are no particulars of what efforts he made. On the record before me I am satisfied that Alex was not in full-time attendance at school having taken only one correspondence course with ILC.
[ 22 ] I am satisfied that the husband has established that he has overpaid with respect to child support. I would not, however, start that calculation as of July 1, 2009. Alex should be given some time after he did not complete high school to consider his options and look for work. It is my view that the overpayment calculations should commence January 1, 2010. The wife did not provide the proper disclosure to the husband on this issue and if she had he could have commenced his motion for relief much sooner. The calculations then are as follows:
2010 - the child support for one child on $64,700 is $592 per month. The overpayment was $560 x 12 = 6,720 Less ($32 x 12 = 384) for a total overpayment of $6,336.
2011 - same as above $6,336.
2012 - same as above up to April 1 = $2,112.
Total Overpayment = $14,784
($14,784 divided by 60 months = $246.40)
[ 23 ] I am satisfied that the wife ought to repay this amount by a deduction of a portion of her spousal support amount. As a result she will be obligated to pay this amount but at $250 per month. The total spousal support amount will, therefore, be $1,350 per month to reflect this deduction.
[ 24 ] In the event that Alex does become enrolled full-time at Sheridan College or any other full-time program the issue of child support may be re-visited.
Re: Life Insurance
[ 25 ] The husband’s employer changed its policy regarding the amount of life insurance offered from two times base salary to 1½ times base salary. The husband therefore, asks that paragraph 17 of Justice Corbett’s order be amended accordingly.
[ 26 ] Order to issue as follows:
That the husband shall pay to the wife spousal support in the sum of $1,600 per month commencing April, 2012. From that amount shall be deducted $250 per month for a period of 5 years as an allocation for the overpayment of child support from January 1, 2010 to April 1, 2012. The total amount payable to the wife, therefore, after this monthly deduction, is $1,350 per month commencing April 1, 2012.
The child support payment for Alex in the amount of $560 per month terminated as of January 1, 2010.
Paragraph 17 of Justice Corbett’s order of November 27, 2007 shall be amended to read:
For so long as the Applicant is obligated to pay child support and/or spousal support, the Applicant shall maintain the life insurance policy with Dominion Group on his life in the total amount of one and one-half (1½ ) of his gross annual salary, naming the Respondent as irrevocable beneficiary. The Applicant shall not borrow against these policies while he is obligated to pay child and/or spousal support to the Respondent
In the event that the wife secures either full-time or part-time employment she shall immediately notify the husband of same and of full particulars of the employment. The wife shall also advise the husband of all efforts made by her to find employment, including applications made, interviews and the results of those applications and interviews;
In the event that Alex is accepted at Sheridan College to study on a full-time basis or if he is accepted at any other college or educational institution to study on a full-time basis, the issue of child support may be revisited;
Support Deduction Order to issue;
The parties shall file written submissions on costs within 10 days, limited to 2 pages each.
Fragomeni J.
DATE: April 13, 2012
COURT FILE NO.: FS-06-057502-01
DATE: 20120413
SUPERIOR COURT OF JUSTICE - ONTARIO RE: Edmund Marcinek v. Halina Marcinek BEFORE: Fragomeni J. COUNSEL: Edmund Marcinek, In Person Halina Marcinek, In Person ENDORSEMENT Fragomeni J.
DATE: April 13, 2012