ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-07-0202
DATE: 2012-05-01

B E T W E E N:

PAMELIA TRUDY ROCHELEAU,

Samantha Filipovic , for the Applicant

Applicant

• and -

DANIEL GABRIEL ROCHELEAU,

The Respondent representing himself

Respondent

HEARD: April 2, 2012, at Thunder Bay, Ontario

Platana J.

Reasons For Judgment

[ 1 ] Mrs. Rocheleau brings this application for spousal support, an equalization payment, and costs. She further seeks corollary relief that she be designated as the irrevocable beneficiary of life insurance policies and that the Respondent maintain extended medical, health and dental benefits for her.

Background

[ 2 ] The parties were married July 8, 1995, and separated February 23, 2007. The Applicant had one child. The Respondent acknowledges that he acted as a father figure to the child.

[ 3 ] A history of court proceedings notes that in February of 2008 a temporary support order was issued against the Respondent in the amount of $1,100.00 per month. Costs of a motion in the amount of $500.00 were awarded to the Applicant.

[ 4 ] On August 19, 2008, an order was issued that the Respondent keep the Applicant covered under his extended health care benefits. Costs of that motion were awarded at $750.00.

[ 5 ] On December 17, 2008, an order was issued varying spousal support to $1,383.00 effective February 1, 2008 to December 1, 2008, and then $1,562.00 effective January 1, 2009. Unpaid arrears were ordered to be paid in the amount of $200.00 per month, and an equalization payment was fixed at $6,000.00.

[ 6 ] On October 1, 2009, the above order was stayed. That stay was lifted on December 2, 2010, and the Respondent was ordered to file tax returns, employment records and Financial Statements. Costs were awarded to the Applicant in the amount of $900.00.

[ 7 ] On January 20, 2011, the Respondent did not appear on a motion and costs were awarded against him of $250.00.

[ 8 ] None of the costs orders have ever been paid, nor has the $6,000.00 equalization payment ordered on December of 2008 been paid.

[ 9 ] Exhibit 20, filed, is a Directors’ Statement of Arrears as of March 30, 2012, showing outstanding periodic payments of $40,158.99; a lump sum payment of support in default of $900.00; and an administration fee of $400.00 for a total of $41,458.99.

The Applicant

[ 10 ] The Applicant’s evidence is that she worked part-time during the marriage and that all of her income went into joint family income for what she described as “extras”. She testified that the Respondent did not want her to work full-time.

[ 11 ] Following an incident involving the Respondent and the Applicant’s son, she then moved into an apartment.

[ 12 ] The Applicant has had a hearing problem since birth and requires the use of hearing aids. During the course of the marriage there was no issue with the Respondent covering the cost of these under his benefit plans. Although he was ordered to maintain her under his plan by the Order of Shaw J. of August 19, 2008, he has never done so. She is currently covered under the plan of her new partner. Filed as Exhibit 3 in this matter is an invoice dated August 6, 2008, from Expert Hearing Solutions in the amount of $4,970.00. He has never contributed towards that amount. It also indicates that the Applicant needs her hearing aids to be replaced every three years. Exhibit 4 notes that she also requires tooth repair, new glasses and orthotics.

[ 13 ] The Applicant also states that despite the order of Pierce J. of October 1, 2009, the Respondent has never advised her of any changes in his financial situation although the evidence would indicate that there have been a number of changes subsequent to the date of that order.

[ 14 ] She is currently employed part-time at the Marathon Hospital where she is a personal support worker. She has grade 12 education and has taken some courses through the hospital but indicates that there are currently no full-time positions available.

[ 15 ] The Applicant is currently involved in a new relationship which began three years ago. The relationship is such that she and her new partner share monthly expense of $4,660.90. Her Financial Statement dated March 15, 2012, filed as Exhibit 7, notes that she has income of $2,407.56 per month (gross income of $27,636.83 per year).

[ 16 ] A review of the Applicant’s income history notes that in 2004 her T4 income was $22,072.13; in 2005 her income as shown on her Income Tax Return was $24,507.00; in 2006 $25,835.00; in 2007 $32,641.00 (including RRSP income of $4,086.00); in 2008 $43,658.00 (including support payments of $12,100.00); in 2009 $44,059.00; in 2010 $35,390.00 and in 2011 $27,636.83. Her year-to-date income in 2012 to March 7 is $5,774.78.

[ 17 ] As part of her evidence the Applicant filed Exhibit 22, an e-mail which the Respondent acknowledged sending, in which he states “… one more pay and I’m on employment, which you can’t touch … back to school for me. No more money and no more benefits … Sorry”.

The Respondent

[ 18 ] The Respondent states that he left the relationship because of difficulties which arose after the Applicant’s son moved in. In December of 2007 he received severance pay when he left his then current employment, he says because of safety concerns.

[ 19 ] In February 2008 he began employment for Cementation where he worked for 15 ½ months until laid off in May 2009. During that period of employment he states that Family Responsibility Office was taking one-half of his pay. In May of 2009 he went on employment insurance.

[ 20 ] In March 2010 he got a job with DeBeers Mining in the arctic. He states that he did not advise the Applicant of any job change because “He believed he had a right to get caught up.” He states that he left that job after three months in order to obtain employment in Timmins, closer to home. He began working with Dumas Mining and did so from March to November of 2011 when he was fired for a safety violation.

[ 21 ] He acknowledged in his evidence that the Applicant should have been paid support, however, he did not believe that he was being treated fairly because during all of the times he was unemployed arrears were accumulating. He acknowledged that he never brought any motion to vary his support payments nor did he ever advise the Applicant of his changing employment circumstances.

[ 22 ] His evidence is that at the time of this hearing he had just started a job in Sudbury. He provided no information with respect to his current income.

[ 23 ] In cross-examination he acknowledged that in his Financial Statement dated November 2008 (Exhibit 26) he showed monthly income of $10,360.00 when employed by Cementation. He also at that time had a locked-in RRSP in the amount of $82,105.13. He stated that he received mining bonuses with all employers he ever worked for including Cementation.

[ 24 ] His Financial Statement dated September 11, 2009, (Exhibit 27) shows him then living with a partner who earned $40,000.00 per year. That statement states that he was unemployed between April 28 to August 1.

[ 25 ] His Financial Statement sworn June 10, 2011, shows gross employment income of $87,353.96 and employment insurance income of $4,740.00 for a total of $92,093.96. In reviewing this statement it appears to me that when contrasting those numbers with his Financial Statement of September 11, 2009, he has confused the numbers for both monthly and yearly expenses.

[ 26 ] His Financial Statement of March 6, 2012, (Exhibit 29) shows no income but monthly expenses of $6,156.65. As I noted earlier, his evidence is that he is now working but had not yet been paid. No evidence was given by him as to his current salary.

[ 27 ] In reviewing his income history in the three years prior to separation he earned $99,868.51 in 2003; $135,608.96 (including RRSP income of $323,435.51) in 2005 and $96,503.84 in 2006.

[ 28 ] His 2007 T4 information indicates that he earned $129,855.83, including a severance pay of $31,573.31.

[ 29 ] His 2008 income summary (Exhibit 35) shows income of $142,339.47 (including RRSP of $32,570.30).

[ 30 ] His 2010 Notice of Assessment shows income of $91,348.00. The only 2011 information is one T4 showing income of $9,222.81.

[ 31 ] In cross-examination he acknowledged that he has never paid any of the cost awards nor has he paid the equalization payment ordered previously.

Submissions of Applicant

[ 32 ] Ms. Filipovic argues that on the basis of s. 33 of the Family Law Act the Applicant is entitled to spousal support. She notes that this was a 13 year relationship in which the Applicant did all of the work at home while working part-time and putting all of her part-time income into the family finances. She further notes that the Applicant’s lifestyle has now changed dramatically as a result of the separation. Furthermore, she points out that the Applicant had hearing issues which require the expense of hearing aids and which were previously covered under the Respondent’s benefit plan.

[ 33 ] With respect to entitlement, Ms. Filipovic notes that the Financial Statements which were filed by the Respondent show that he has always made his debt payments for vehicles and other expenses in priority to support. She further notes that he has never advised the Applicant of any change of his employment despite court orders, nor did he ever make any application to vary.

[ 34 ] Ms. Filipovic asks me in determining quantum to impute income to the Respondent on the basis that he is intentionally under-employed. She points to his pattern of pre-separation income and immediate post-separation income to ask me to draw an adverse inference that he is capable of employment.

[ 35 ] She cites Drygala v. Pauli 2002 41868 (ON CA) where the court established factors for consideration to determine whether income should be imputed. In Rilli v. Rilli , 2006 34451 (ON SC) , Olah J. stated:

“I concur with the thoughts of Corbett J. in his reasons in Bullock v. Bullock , 2004 16949 (ON SC) , [2004] O.J. No. 909 where he states: “A support payor cannot choose to be voluntarily underemployed, whether by retirement or otherwise, and thereby avoid his or her spousal support payment obligations.”

[ 36 ] In reviewing his financial circumstances Ms. Filipovic has asked me to rely on the Spousal Support Advisory Guidelines , and to impute income to the Respondent between $95,000.00 to $100,000.00 per year. She then asks me to consider that with his imputed income of $95,000.00 and the Applicant’s current income of $27,630.00, that I should use the mid-range calculation from the S.S.A.G. ’s calculations to arrive at a spousal support figure of no less than $1,277.00 per month for a period of 6 ½ to 13 years.

Position of Respondent

[ 37 ] The Respondent, who is self-represented, made no specific submissions other than to indicate that he did not think it was fair that he should have to pay spousal support while he was not employed.

Discussion & Analysis

[ 38 ] In determining the issue of spousal support I am satisfied that the Applicant has established an entitlement. This was a 12 year marriage, during which time her entire income earned went into the family unit while at the same time she was totally responsible for all matters concerning the running of the family home.

[ 39 ] With respect to the issue of quantum I have considered that the Respondent’s financial history from between 2003 and 2010 shows that at the lowest point his income was $88,282.00 in 2007, the year the parties separated. Following separation in 2007 he earned an additional $45,104.73 as a payout from previous employment. In 2008 he then earned $109,769.00; and in 2010 $91,348.00. The Respondent’s average income approximates $95,000.00. Even considering the times when he was unemployed, from 2005 on his lowest income year was $91,384.00.

[ 40 ] In Drygala v. Pauli , 2002 CanLii1868 (ON C.A.) the Ontario Court of Appeal dealt with the issue of the application of s. 19.1(a) of the Child Support Guidelines . The Court noted that the trial judge was required to consider three questions relevant to the imputation of income:

(1) is the spouse intentionally under-employed or unemployed?

(2) if so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?

(3) if the answer to question (2) is negative, what income is appropriately imputed in the circumstances.

[ 41 ] The same factors should be considered when considering imputing income for the purpose of support under the Family Law Act. The Court further noted in that decision that there is no bad faith requirement with respect to the issue of underemployment for the purpose of determining whether income should be attributed.

[ 42 ] Further, he states in his Financial Statement of March 6 of this year, that he has monthly expenses of $6,156.65 and only began working prior to this hearing.

[ 43 ] The Respondent’s work history suggests that he has constantly been employed. There is no evidence before me to suggest why he cannot work, and when so, cannot earn an income in the same range that he has been earning since 2003. He has left two jobs intentionally subsequent to the prior orders for support. The fact that he is working now established that he is capable of working.

[ 44 ] On the basis of his employment history, I impute income to him in the amount of $95,000.00 per year. I accept the submission of counsel for the Applicant that applying the Spousal Support Advisory Guidelines , a mid-range figure of $ 1,277.00 per month is appropriate as a guide for spousal support.

[ 45 ] There is already in force an order for payment of the equalization amount.

[ 46 ] As noted earlier, he agrees that he owes the support monies, costs and the equalization payment. His evidence in cross-examination is that he “cut the Applicant off and replaced her with his girlfriend” on his health care coverage benefits, contrary to the order of Justice Shaw in August 2008. Her evidence is, however, that she is currently covered under her new partner’s plan. It was unclear in the evidence, and in the submissions, what specific relief is requested on an ongoing basis.

[ 47 ] A claim was made with respect to being a beneficiary under life insurance policies, however, no evidence was led and no submission made on that issue.

[ 48 ] Order to go as follows:

(i) Arrears of support are fixed as of March 30, 2012 in the amount of $ 40,158.99;

(ii) Outstanding costs, in the amount of $ 2,150.00 which relates to previous motions and orders for support, shall be enforceable by Family Responsibility Office;

(iii) The Respondent shall pay ongoing spousal support in the amount of $ 1,250.00 per month commencing June 1, 2012 and every month thereafter, based on my imputation of income to the Respondent of $ 95,000.00 per year;

[ 49 ] The Applicant may make submissions as to cost within 15 days and shall serve same on the Respondent by ordinary mail. The Respondent shall have 15 days after service is efforted to respond. Costs submissions shall be limited to 2 pages, exclusive of any Bill of Costs.

_______ ”original signed by”_ ___

Mr. Justice T. A. Platana

Released: June 1, 2012

COURT FILE NO.: FS-07-0202
DATE: 2012-06-01

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: PAMELIA TRUDY ROCHELEAU, Applicant - and – DANIEL GABRIEL ROCHELEAU Respondent REASONS FOR JUDGMENT Platana J.

Released: June 1, 2012

/mls