CITATION: Brière v. Saint-Pierre, 2012 ONSC 421
COURT FILE NO.: FC-07-1269-1
DATE: 2012/01/17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JOCELYN BRIÈRE Applicant
– and –
PHILIPPE SAINT-PIERRE Respondent
Self-Represented
Pam MacEachern, for the Respondent
Allan Hirsch, for the Family Responsibility Office
HEARD: December 15, 2011 (Ottawa)
REASONS FOR DECISION
BEAUDOIN J.
Nature of the Motion
[1] On November 29, 2011 the Applicant brought this motion to grant him access to $24,150.00 in his locked‑in retirement account (“LIRA”) and termination of spousal support. He further sought that the arrears be terminated as well as terminating the arrears for costs ordered May 9, 2011. He sought other relief, namely, damages for defamation which claim is outside the scope of his application to vary. I refused to hear his motion to terminate spousal support. Justice Parfett had previously decided that this should not be heard before March 2012; moreover, Brière had not set out any new facts in support of the relief he was requesting. I ruled that the only issue he could deal with was his request to withdraw the $24,150.00.
[2] The Respondent seeks the following relief:
(a) That the Applicant be found in contempt and be sentenced to a term of incarceration if he does not purge his contempt;
(b) The payment of $24,150.00 that has been authorized to be paid out of the Applicant’s LIRA should be paid to the Respondent, in accordance with orders made on June 27, 2011 and November 9, 2011;
(c) A further lump sum award of spousal support in the amount of $250,000.00 from the Applicant’s LIRA;
(d) Costs on a solicitor‑client basis; and
(e) Any other such relief as this Court deems just.
Background
[3] The Applicant and Respondent are previous common law spouses. After cohabiting for 24 years, they separated in February 2007. The parties settled prior to trial in February 2009, at which time the Respondent agreed not to pursue a claim for unjust enrichment in exchange for a monthly spousal support payment.
[4] On March 13, 2009 Justice McNamara made an order based on the consent of the parties and Minutes of Settlement filed. The court ordered that the Applicant would pay the Respondent spousal support in the amount of $2,000.00, which would be varied to $1,900.00 per month as of March 1, 2009. This amount of spousal support was based on the Applicant’s annual income of $107,868.00 and the Respondent’s annual income of $20,000.00 which was imputed to $40,000.00 per year based on the Applicant’s position that he should be able to earn such income if he made reasonable efforts.
[5] The records reveal that on February 25, 2009, only days after the signing of the Minutes of Settlement, and before the order made by Justice McNamara, Brière signed termination documents ending his job as a school principal with the French Catholic School Board. The Applicant received a significant severance payment in the amount of $120,162.79 as a result of his termination. He never disclosed this information.
[6] On March 1, 2009 the Applicant was in arrears of $6,000.00 for spousal support payable for three months. On March 9, 2009 the Applicant paid $5,900.00. The order made March 13, 2009 immediately went into arrears. On April 1, 2009, the Applicant paid $1,900.00. On May 19, 2009, he paid $300.00. These are the only payments the Applicant voluntarily made after the matter was settled. In November 2009, small amounts began to be garnished to Saint-Pierre from the federal benefits payable to the Applicant.
[7] On July 23, 2009 Brière provided the Family Responsibility Office (“FRO”) with a cheque for $6,000.00, but the cheque was returned for insufficient funds. Cheques for $2,000.000 were provided to FRO in August and September 2009, but these were also returned for insufficient funds. As of November 2, 2011, the Applicant was in arrears of $46,860.00 for spousal support. This support continues to accrue at the rate of $1,900.00 per month. The Applicant also owed $165.88 in interest, and $10,440.00 in unpaid court costs. In total, Brière owes $57,465.99 enforceable as support.
[8] In February 2010, Brière sought to vary the March 13, 2009 spousal support order. The Applicant sought to rescind the support order retroactively as of April 17, 2009 based on a reduced income. The Applicant indicated that his income in 2009 was $160,000.00 and had dropped to $28,000.00 in 2010.
[9] On March 2, 2010 the Applicant brought an ex parte motion and obtained an order suspending support until the case conference set for March 25, 2010. On March 25, 2010, the case conference was struck off the list and was not heard because the Applicant had not filed the required materials. On April 13, 2010, the Applicant brought a second ex parte motion and was granted a stay of his support obligation.
[10] The order dated April 13, 2010 was set aside on April 29, 2010. Brière was also ordered not to bring further motions without notice, without leave and unless it was a true emergency. Master MacLeod found that the Applicant had not made full and frank disclosure at the April 13, 2010 motion. The Applicant failed to draw to the Master’s attention that the March 2, 2010 order was granted without notice to the Respondent, and should not have been extended without giving the Respondent an opportunity to respond.
[11] On June 3, 2010, a scheduled case conference was adjourned to July 28, 2010 because Brière again failed to file the proper materials with the court. On July 28, 2010, the case conference was once again adjourned because the Applicant had failed to file the required material. On February 7, 2011 a Notice of Dismissal was issued because the Applicant had not advanced his application for variation.
[12] On May 9, 2011 a case conference was held before Justice Smith and the Respondent sought costs for the Applicant’s abandoned variation motion. At this time, Brière advised through counsel that he had locked‑in his pension and that he had not cashed it in. Justice Smith found that the Applicant had caused unnecessary expense and delay. The court gave the Applicant five days to provide authorization for FRO and the Respondent’s counsel to obtain information with regard to the Applicant’s:
(a) Employment and termination, including details of any severance payments;
(b) Ontario Teacher’s Pension Plan; and
(c) Income tax in 2008, 2009 and 2010.
If the Applicant did not provide the authorizations in five days, his consent would be dispensed with.
[13] The Applicant was further ordered to provide, within 30 days, an updated financial statement and:
(a) A copy of all bank statements he had an interest in from January 1, 2010 to date; and
(b) A list of all sources of credit and credit limits, and copies of all statements from January 1, 2010 to date.
Finally, the applicant was ordered to pay costs of $8,000.00 plus HST and disbursements of $400.00, enforceable as support and bearing interest at 3%. These costs remain unpaid.
[14] On June 16, 2011, the Respondent learned that the Applicant cashed out his pension on July 8, 2010. The commuted value of his pension was $569,783.06. He had transferred $363,601.85 to a LIRA account with Scotiabank. He transferred $144,326.85 to a personal account at Scotiabank. The Respondent believes that the Applicant intentionally depleted his assets. The Applicant’s previous boyfriend has informed the Respondent that the Applicant gave a cheque to his sister for approximately $30,000.00 to $40,000.00. Similarly, he gave $30,000.00 to his friend Suzanne Monette with the request that that these sums be held on his behalf.
[15] The Applicant has still not produced copies of bank statements in respect of any bank accounts in which he may have an interest as ordered on May 9, 2011. The Respondent’s counsel has continued to make requests for these records in order to determine what has happened to the Applicant’s pension and severance fund. The Applicant has not respondent to these requests.
[16] On June 27, 2011, Brière brought a motion to terminate support payments. He also sought spousal support from the Respondent. On June 27, 2011 Justice Parfett ordered that:
(a) The Applicant’s LIRA account be frozen;
(b) Once the Applicant had access to the LIRA, that all arrears owed to the Respondent be paid;
(c) Support owed to the Respondent would continue to accumulate;
(d) The Applicant’s motion to vary spousal support was adjourned and was returnable in March 2012; and
(e) The Applicant was also ordered to pay the Respondent’s costs of $1,000.00.
Those costs remain unpaid.
[17] In November 2011, the Respondent learned that the Applicant had gained authorization for funds to be paid to him from his LIRA account, in the amount of $24,150.00. The Applicant’s application for these funds, on the basis of undue hardship, had been approved by the Financial Services Commission. Once again, the Applicant did not disclose either his application or its approval to the Respondent. On November 9, 2011 Justice Aitken ordered that the spousal support arrears owed to the Respondent should be paid in full from the Applicant’s LIRA account as soon as possible. In the interim, the Applicant was prevented from withdrawing, depleting or encumbering in any way the amounts in the LIRA.
Respondent’s Needs
[18] The Respondent is a full‑time substitute teacher with the French Catholic School Board, however he is not a certified teacher because he does not have a university degree. He works five days a week, earning approximately $115.00 per day. His annual income is approximately $24,000.000. He has had to incur a credit card debt to support himself, as well as borrow money from the bank with his sister as a co‑signer. The Respondent has been required to find a roommate in order to maintain his condominium expenses. In addition to the mortgage, the Respondent has an $80,000.00 debt which he has had to incur in order to support himself without any support from the Applicant. He gave up his claims for share in the Applicant’s assets in exchange for a settlement that would provide him with periodic payments.
Applicant’s Means
[19] The Applicant claims he is unable to work or earn income, however he has not provided any basis for why he is no longer employed as a principal with the French Catholic School Board. If the Applicant had health concerns, he would have been entitled to long‑term disability through his employer. He has not filed any evidence to support his claims of disability.
[20] The Applicant is highly educated and a qualified and experienced school teacher and has the potential to earn income from teaching or other casual employment. The Applicant received $120,162.79 in 2009 from his severance payment. He received $144,326.00 in July 2010 when he cashed in his pension. During these periods, the Applicant did not pay the Respondent any of the support owed. The Applicant has failed to provide any documentation explaining how these lump sums were depleted. The Applicant did not provide notice to the Respondent when he gained access to the LIRA account.
The Issues
[21] The issues are as follows:
(a) Should the Applicant be found in contempt?
(b) Should the $24,150.00 that has been authorized to be paid out of the Applicant’s LIRA, be paid in full to the Respondent in accordance with the orders of June 27, 2011 and November 9, 2011;
(c) Should a lump sum spousal support award be transferred to the Respondent from the Applicant’s LIRA?
[22] Saint‑Pierre’s counsel made it clear that she would not be seeking the contempt order if I granted the ordered payment of the $24,150.00 to her client as well as the lump sum payment.
Jurisdiction to make the orders sought
[23] The Respondent did not seek a lump sum payment in his answer filed in response to the motion to change but gave clear notice of that intent in his response to Brière’s latest motion to change. Moreover, I note that the following provisions of s. 37(2) of the Family Law Act, R.S.O. 1990, c. F. 3 provides as follows:
Powers of court: spouse and parent support
(2) In the case of an order for support of a spouse or parent, if the court is satisfied that there has been a material change in the dependant’s or respondent’s circumstances or that evidence not available on the previous hearing has become available, the court may,
(a) discharge, vary or suspend a term of the order, prospectively or retroactively;
(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and
(c) make any other order under section 34 that the court considers appropriate in the circumstances referred to in section 33. 1997, c. 20, s. 6; 1999, c. 6, s. 25 (12); 2005, c. 5, s. 27 (16).
[24] In this case, it is clear that Brière never intended to comply with the Minutes of Settlement he signed with Saint-Pierre. Within days, he resigned from his position as a principal and he has never disclosed why. Within months, he stopped paying any support notwithstanding his receipt of significant severance amounts. Instead of receiving regular pension payments that might have been subject to garnishment by FRO, he transferred his pension into a locked‑in retirement account. He withheld this information from the Respondent. He has failed to comply with orders for disclosure. There are ample grounds to find him in contempt.
Lump Sum Spousal Support from the LIRA Fund
Lump Sum Spousal Support Awards
[25] Sections 34(1)(a) and (b) of the Family Law Act, R.S.O. 1990, c. F. 3 (the “Act”) grant broad discretion on judges to make lump sum spousal support. Sections 34(1)(a) and (b) of the Act state:
- (1) In an application under section 33, the court may make an interim or final order,
(a) requiring that an amount be paid periodically, whether annually or otherwise and whether for an indefinite or limited period, or until the happening of a specified event;
(b) requiring that a lump sum be paid or held in trust;
Family Law Act, R.S.O. 1990, c. F. 3, s. 34
[26] In Davis v. Crawford, 2011 ONCA 294, 277 O.A.C. 200 at para. 58 the Court of Appeal established that lump sum spousal support awards can be made to unmarried spouses. That Court gave direction as to the factors to be considered in awarding a lump sum for spousal support, namely:
(a) Whether a lump sum award is necessary to relieve against financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home) of the Act;
(b) Whether the payor has the ability to make a lump sum payment without undermining the payor’s future self-sufficiency.
i. The payor and payee’s current assets and means;
ii. The assets and means that the payor and payee are likely to have in the future;
iii. The payors’ capacity to provide support.
[27] The Court went on to note the perceived advantages and disadvantages of such awards:
67 The advantages of making such an award will be highly variable and case-specific. They can include but are not limited to: terminating ongoing contact or ties between the spouses for any number of reasons (for example: short-term marriage; domestic violence; second marriage with no children, etc.); providing capital to meet an immediate need on the part of a dependant spouse; ensuring adequate support will be paid in circumstances where there is a real risk of non-payment of periodic support, a lack of proper financial disclosure or where the payor has the ability to pay lump sum but not periodic support; and satisfying immediately an award of retroactive spousal support.
68 Similarly, the disadvantages of such an award can include the real possibility that the means and needs of the parties will change over time, leading to the need for a variation; the fact that the parties will be effectively deprived of the right to apply for a variation of the lump sum award; and the difficulties inherent in calculating an appropriate award of lump sum spousal support where lump sum support is awarded in place of ongoing indefinite periodic support.
[28] At para. 79 the Court of Appeal noted the trial judge’s findings and commented as follows:
79 A main theme of the trial judge's reasons was her credibility-based findings that the appellant had greater assets and means than he was prepared to acknowledge and that he was attempting to shelter assets from the respondent's reach. Having regard to these findings, it is readily apparent that the trial judge concluded there was a real risk the appellant would not pay periodic support and that this factor alone mandated an award of lump sum support, even though the appellant would be deprived of the ability to seek a variation. Further, the appellant's failure to make proper disclosure made a clean break highly desirable - in the absence of a clean break, the respondent likely faced unending litigation to maintain her entitlement to spousal support.
[29] In this case, the Respondent did not benefit from equalization and abandoned a claim for unjust enrichment in exchange for periodic support. A lump sum payment would immediately satisfy arrears for spousal support. Moreover, given the Applicant’s pattern of behavior, there is a real risk that the Applicant will not provide periodic support. The Applicant has had at several times significant funds at his disposal, and has failed to pay support to the Respondent. In such a situation, a lump sum award is appropriate. The Applicant has the means to pay a large lump sum from his LIRA. The Applicant’s lack of proper financial disclosure suggests a lump sum would be appropriate otherwise the Respondent may be forced into unending litigation in order to maintain his entitlement to support.
Awarding a Lump Sum from a LIRA
[30] In Belton v. Belton, 2010 ONSC 2400 at para. 25, the court dealt with its jurisdiction to order lump sum spousal support held in a LIRA:
25 The other issue that must be considered is whether such an Order would contravene section 51 of the Pension Benefits Act which limits the amount of a pension that can be transferred to a spouse to fifty percent (50%) of the pension. It is clear from Nicholas v. Nicholas 1998 14871 (ON SC), [1998] O. J. No. 1750 (Ontario General Division) that section 51 of the Act deals with equalization of property and is silent as to support. As such a Court is not prevented from ordering one-half of the pension to be transferred to satisfy the property claims, with the remaining one-half of the pension to be transferred in satisfaction of a support obligation under section 65 of the Pension Benefits Act.
[31] Section 65 of the Pension Benefits Act states:
Void transactions
- (1) Every transaction that purports to assign, charge, anticipate or give as security money payable under a pension plan is void.
Idem
(2) Every transaction that purports to assign, charge, anticipate or give as security money transferred from a pension fund in accordance with section 42 (transfer), 43 (purchase of pension), clause 48 (1) (b) (pre-retirement death benefit) or subsection 73 (2) (transfer rights on wind up) is void.
Exemption for order or separation agreement
(3) Subsections (1) and (2) do not apply to prevent the assignment of an interest in money payable under a pension plan or money payable as a result of a purchase or transfer under section 42, 43, clause 48 (1) (b) or subsection 73 (2) (transfer rights on wind up) by an order under the Family Law Act or by a domestic contract as defined in Part IV of that Act.
[32] I conclude that the Respondent is entitled to a lump sum spousal support award. The Applicant is in arrears of $57,465.99 enforceable as support, and these continue to accrue monthly.
[33] I have been provided with calculation for a lump sum payment based on spousal support payment of $1,900.00 for 15 years. The mid‑point, after taking into account the income tax implications is $223,891.00. Having regard to the amount remaining in the LIRA and the remaining arrears, I order the sum of $200,000.00 to be transferred to the Respondent from the Applicant’s LIRA to secure future support. This amount is to be transferred into a LIRA registered in Philippe Saint‑Pierre’s name. Periodic support payments are terminated once that transfer has taken effect.
[34] The arrears are fixed in the amount of $57,465.99 and will accrue at the rate of $1,900.00 per month until such time as the lump sum is transferred in accordance with the previous paragraph. The amount of $24,150.00 that Brière has been authorized to withdraw from his LIRA will be paid forthwith to the Respondent on account of arrears as previously ordered by this Court. All future withdrawals from LIRA will be subject to enforcement by FRO and the Bank of Nova Scotia is hereby required to give notice to FRO of all payments to be made out of the account and any change of address for Brière.
[35] The Respondent is awarded his costs of this motion, which I fix in the amount of $7,000.00. Counsel for FRO will be also entitled to his costs, which I fix in the amount of $1,000.00. These amounts are enforceable as support.
Mr. Justice Robert N. Beaudoin
Released: January 17, 2012
CITATION: Brière v. Saint-Pierre, 2012 ONSC 421
COURT FILE NO.: FC-07-1269-1
DATE: 2012/01/17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JOCELYN BRIÈRE Applicant
– and –
Philippe Saint-Pierre Respondent
REASONS FOR DECISION
Beaudoin J.
Released: January 17, 2012