ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 505-09
DATE: 2012-07-24

B E T W E E N:

Melissa Lynn Lepine

Foluke A. Ololade for the Applicant

Applicant

• and -

Alain Joseph Lepine

Self-Represented

Respondent

HEARD: July 12, 13, 14 and Dec 12, 2011

Reasons for Judgment

Parayeski J.

[ 1 ] The parties were married on March 7 th , 1987 and separated on May 1 st , 2009. They have three children between them, Genevieve, Bryce and Olivia. The eldest, Genevieve, is now independent. At present, both Bryce and Olivia attend university.

[ 2 ] The respondent appears to agree that he should pay spousal support as well as child support in respect of Bryce and Olivia, including reasonable extraordinary expenses, but disagrees with respect to the appropriate amount and the duration of those payments.

[ 3 ] I agree with the applicant’s list of issues that need to be addressed in this ruling, as found at page 2 of her counsel’s written submissions. By this, I mean the highlighted items only. I shall address them individually.

Custody and Access

[ 4 ] There is no need to make an order relative to custody. The youngest child is now a few weeks away from being 19 years of age. Access shall be at the discretion of the relevant child.

Child Support for the Children Bryce and Olivia

[ 5 ] Although Bryce is currently about 22 years of age and Olivia about 19, both continue to be dependent given that they are still in university. This is not disputed by the respondent.

[ 6 ] There is no evidence which suggests that there should be any derivation from the Guideline amount relative to Bryce and Olivia, which leaves me with the question of the respondent’s income.

[ 7 ] Since the separation, the respondent has worked in the information technology field. At some point, he, through a company, did contract work with a large single customer. In 2006, his income was $185,013.00. In 2007, it was $146,924.00. In 2008, it was $138,048.38. The evidence is that the single customer was not prepared to renew its contract with Mr. Lepine’s company, thus ending a lucrative arrangement. His income dropped.

[ 8 ] At the start of the trial in 2011, Mr. Lepine was employed by Hewlett-Packard. By the end of the trial, he was employed by Channel Assist, earning $80,000.00 plus sales commissions. He asserts that he will be making roughly $90,000.00 per year, and asks that I base support on that figure.

[ 9 ] I reject the applicant’s assertions that the respondent is deliberately under-employed, and that, therefore, I should impute an income to him higher than the $90,000.00 he is prepared to concede. The imputation of income requires some evidentiary basis. Mere skepticism is not enough. I am prepared to pay judicial notice to the fact that we are presently in the midst of a recession, and that the information technology field has been particularly troubled. There is no evidence of the respondent having turned down more lucrative job offers or of his not working full-time. While his base salary at Channel Assist is less than it was at Hewlett-Packard, I do not accept that his switching jobs constitutes proof that he has undertaken a conscious effort to earn less in order to reduce exposure to support obligations.

[ 10 ] Accordingly, it is appropriate that the respondent pay child support at the Guideline amount for the two children based upon an income of $90,000.00, commencing July 4 th , 2011. That is the date upon which the respondent commenced employment at Channel Assist. I shall address any retroactive obligation for child support at a later point.

Extraordinary expenses relating to the education of Bryce and Olivia

[ 11 ] The applicant asks that the respondent be ordered to pay 72% (or 80% if one looks at the draft order submitted) of Bryce’s education-related extraordinary expenses up until completion of his undergraduate and teaching degrees on a go-forward basis, net of any grants or scholarships. The applicant gave evidence that Bryce is prepared to pay 20% of these expenses himself. She asks that she not be obliged to pay anything. As will be seen below under the section on spousal support, I shall impute income to the applicant to $10,000.00 per year. In proportion to the ratio of their incomes ($90,000.00 : $10,000.00), the respondent shall pay 72% of reasonable and proper extraordinary education expenses of Bryce to the end of his teaching course, net of any grants and scholarships. These payments are to be made to OSAP or Bryce directly. The applicant shall pay 8% on the same basis. Bryce shall be responsible for the balance.

[ 12 ] Olivia is on a full scholarship, and she does not appear to have education related extraordinary expenses at present.

Retrospective Extraordinary Expenses Relating to Bryce and Olivia

[ 13 ] The applicant asks that the respondent pay a portion of Bryce’s past tuition and book expenses for 2010 and the 2011-12 academic year, net of grants. The net amount of these total $6,866.30. In keeping with my ruling above, the respondent shall pay 72% of that, or $4,943.74. This is reasonable, and I am not prepared to increase that amount because the respondent’s income was higher in those years. This is offset by the applicant’s admitted income from OSAP grants to some degree at least.

[ 14 ] With respect to Olivia, the applicant asks that the respondent contribute to some dance classes and driving lessons in 2009 and 2010. These total $4,490.00. They are reasonable. The respondent shall pay 72% of that, or $3,232.80.

[ 15 ] The two amounts above are fixed as the arrears relative to extraordinary expenses.

Spousal Support

[ 16 ] The parties were in a traditional, long term marriage. With the exception of some two weeks over an approximate 22 years of marriage, the applicant did not work outside of the home. During the marriage, the respondent’s career progressed well, for the most part. The applicant is entitled to spousal support. That said, I am not convinced that she is making a reasonable effort towards self-sufficiency at present. Her plan is to take a leisurely 5 years to complete a 4 year university degree in psychology. She admits that the same does not lead directly to employability. Rather, it provides one with “life skills”. She does not work during those months in which she is not taking courses.

[ 17 ] I reject her rationale for taking 5 years to complete a 4 year course as being the result of “illness of post-traumatic stress”. There is no medical evidence that substantiates that assertion whatsoever.

[ 18 ] The applicant’s income, at present, consists of whatever portion of her OSAP loan the government decides is to be forgiven, turning that amount into a grant of some sort. The amount depends, according to her evidence, upon any other income and is anything but predictable.

[ 19 ] I am prepared to impute an income of $10,000.00 per year to the applicant wife. This could be earned, even at minimum wage, over the summers and through part-time work during the school year. It is less than what Bryce earns while attending university. There is no apparent reasons why the wife should not be making that amount.

[ 20 ] I accept as reasonable the wife’s assertion that her grants from OSAP would likely reduce or disappear if she were earning an income, and, so, in imputing this income to her, I am not factoring in anything from OSAP.

[ 21 ] The amount of spousal support shall be fixed as the mid-point of the range generated by the Divorce Mate software program, reflecting the fact that the respondent is also paying child support. Payment at the amount so generated is to commence on August 1 st , 2012.

[ 22 ] Spousal support is payable on an indefinite basis, but is subject to review in May of 2015, at which time the applicant should have completed her current university program.

Arrears of Child Support

[ 23 ] The applicant calculates arrears in child support up until the time of the order of Scott J. of October 7 th , 2010, at $6,230.00. After that order, the evidence is that no arrears have accumulated.

[ 24 ] The respondent acknowledges child support arrears, but at $3,161.00 only.

[ 25 ] The difference appears to flow from the fact that from time to time the respondent says he gave money directly to the children or paid it into their bank accounts. The applicant disputes this having occurred. For example, she completely disagrees with an alleged payment of some $3,000.00 in cash said to have been given to the child Genevieve by the respondent in early May of 2009.

[ 26 ] Most of the alleged arrears accumulated in 2010, prior to the order of Scott J. The applicant says that up to and including September of 2010, the respondent should have paid $13,383.00 based upon an income of $106,838.35, but that he only paid $8,508.00. His records show payment of only $6,055.00 for that period.

[ 27 ] Both sides have generated self-serving charts regarding arrears that, for the most part, are not backed by independent evidence.

[ 28 ] Neither side has proven their respective positions to my satisfaction on this issue. I do not accept either position as wholly accurate. Accordingly, I am obliged to fix an amount for child support arrears at what is acknowledged by me to be an arbitrary figure. It is $4,000.00.

Spousal Support Arrears

[ 29 ] The applicant says that she is owed $31,747.75 for arrears in spousal support. The respondent says that he owes her $752.00 for this element.

[ 30 ] Once again, the evidence of both parties is unsatisfactory. The applicant’s calculations do not appear to take into account any income, imputed or otherwise, in her hands. The temporary order of Scott J. also mentions nothing relative to income in the hands of the wife, despite her acknowledgement that she has been receiving some grant type funds from OSAP.

[ 31 ] The applicant acknowledges no receipt of spousal support in 2009, for example, whereas the respondent says that he paid $12,872.00. These payments, however, do not appear to have been made to the respondent herself, but, rather, to third parties for such things as insurance premiums and to a bank account belonging to the daughter Genevieve. Based upon what evidence I do have, I fix the arrears for spousal support at $15,000.00.

Financial Disclosure

[ 32 ] There is clearly a need for financial disclosure by both sides. Both shall start by providing the other with a copy of their notices of assessment for 2011. Thereafter, they shall provide each other with complete copies of their income tax records (minimally the return itself and all attachments, plus the notice of assessment once received) commencing May 15 th , 2013.

Life Insurance

[ 33 ] The respondent appears to acknowledge that it is appropriate that he purchase life insurance to protect the dependent children in the event of his death. He also appears to say that he should only do so, if he “has the income to support the policies”. That inference, during the dependency of Bryce and Olivia, is appropriate. The quote “if the respondent can afford it” rider is not.

[ 34 ] For as long as Bryce and Olivia are dependent and entitled to child support, the respondent shall maintain life insurance policies in the minimum amount of $100,000.00 in respect of each child, and will pay all premiums when due. Given the age of the children, there is no reason why they should not be the named beneficiaries. The policies are to be and remain unencumbered. Copies of the policies and proof of premium payments shall be given to Bryce and Olivia directly.

Healthcare Coverage

[ 35 ] There is no evidence before me regarding whether or not the respondent’s healthcare insurer through employment at Channel Assist will permit his insuring the applicant and/or one or both of the children Bryce and Olivia. Provided that it will, it is appropriate that Mr. Lepine maintain or take out such coverage, for as many of the three individuals as is permitted by the insurer. He is to sign documentation allowing the applicant to submit claims to that insurer directly. If either party is reimbursed for a medical expense paid for by the other, the payment shall be forwarded immediately to the payor.

Payment Towards Support and Extraordinary Expenses Arrears Fixed By this Ruling

[ 36 ] In his submissions, the respondent appears to be willing to pay $819.00 per month toward arrears, but asks that such payment be delayed until June of 2013, “following successful discharge from bankruptcy”. The applicant asks for $1,000.00 per month relative to the arrears, with payment to start immediately.

[ 37 ] $1,000.00 is appropriate, but so too is a delay in the start of such payments given the respondent’s financial position. Such payments are to commence January 1 st , 2013, and are not to be tied to his bankruptcy status. This gives him some time to arrange his financial affairs accordingly. All such payments are to be made through the Family Responsibility Office to avoid further conflict regarding who paid how much and to whom and for what purpose.

Equalization of Family Property

[ 38 ] Both parties request that equalization of family property should be deemed to have occurred to their mutual satisfaction. So ordered.

Divorce

[ 39 ] A divorce shall issue upon filing of the usual documentation.

Standard Deduction Order

[ 40 ] SDO to issue.

Costs

[ 41 ] If the parties are unable to agree with respect to costs, they may make brief written submissions to me in this regard. Each set of such submissions, if any, shall be no more than 3 typewritten pages in length, not including a costs outline. Those submissions are due on or before August 31 st , 2012, and are to be sent to my attention at the John Sopinka Court House in Hamilton.

[ 42 ] Order accordingly.

The Honourable Mr. Justice M. Dale Parayeski

Released: July 24, 2012

COURT FILE NO.: 505-09
DATE: 2012-07-24

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Melissa Lynn Lepine Applicant - and – Alain Joseph Lepine Respondent REASONS FOR JUDGMENT Parayeski J. MDP // dm

Released: July 24, 2012