ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-07-402
DATE: 2012-07-027
B E T W E E N:
RAYMOND FERNAND RIVARD
Self-Represented
Applicant
- and -
JUDITH IRENE RIVARD
Self-Represented
Respondent
HEARD: July 13, 2012, at Thunder Bay, Ontario
Regional Senior Justice H.M. Pierce
Reasons on Motion to Vary
Introduction
[ 1 ] The parties appeared at a trial before Mr. Justice Wright in which he ordered the former wife, Judith Irene Rivard, to pay spousal support to her former husband, Raymond Fernand Rivard, at the rate of $800 per month. An amendment to the order was granted on December 19, 2011 that provided that support was payable commencing August 18, 2011 through to April 15, 2013.
[ 2 ] Ms. Rivard moves to vary the support ordered on the basis that she cannot afford the order. She claims that the income from her business is substantially reduced in 2010 and 2011 and rental income for her home is offset by expenses. She claims she has a shortfall of $900 per month on her financial statement. She says that the business shows losses to the point of insolvency.
[ 3 ] Mr. Rivard disputes these allegations. He points to income of $45,000 she earns from employment; to dividends attributable to her from the company arising from motor vehicle expenses of $6,250 per year; and gross rental income of $9,250 per year. On Ms. Rivard’s evidence, gross rental income will increase to $18,000 in the coming year.
Discussion
[ 4 ] The onus is on the moving party, Ms. Rivard, to demonstrate there has been a material change in circumstances since the making of the order to justify a change in the amount of spousal support. She does not claim that Mr. Rivard has an increase in income although she points to certain values of his capital which she says represent an increase. She referred specifically to his lodge purchased for $110,000 and listed for $475,000, and his river lots that he has valued at $60,000 and $125,000.
[ 5 ] Mr. Rivard testified that none of these properties have been assessed at these values. The lodge had no offers when listed for $475,000. I accept his evidence in this regard.
[ 6 ] In his reasons for judgment, Mr. Justice Wright determined Ms. Rivard’s income was $48,288.
[ 7 ] Ms. Rivard’s unsworn financial statement (exhibit 1) indicates that she receives income from teaching of $3,750 per month. She agrees that, on an annualized basis, this represents income of $45,000 per year. Her financial statement also shows income from her corporation, Uniforms Plus, of $6,370.
[ 8 ] Ms. Rivard conceded that she has rented a portion of her home last year and realized $9,250 in income before expenses are taken into account. She testified that she intends to rent the entire home commencing in September, 2012 for $1,500 per month before expenses are taken into account. The monthly expenses for the home are as follows:
Mortgage
$756.00
Property Taxes
$160.00
Insurance
$101.00
Repairs and Maintenance
$50.00
Water
$65.00
Heat
$126.00
Electricity
$42.00
Total
$1,300.00
[ 9 ] When those expenses are subtracted from monthly revenues of $1,500 there is a small surplus of $200 per month left. I conclude that Ms. Rivard will have annual revenues from anticipated rental of $2,400 per year. Ms. Rivard explained that she is also required to rent an apartment in Sioux Lookout while she is teaching in that community and her rent costs her $875 per month.
[ 10 ] It is evident that Ms. Rivard’s income has increased since Justice Wright found it to be $48,288. Based on the figures adduced at trial, I find Ms. Rivard’s earnings including net rental income will be approximately $53,770 dollars in September, 2012 when she fully rents her property and returns to teaching. That she has additional expenses is not in my view a material change in circumstances when her increased income is considered.
[ 11 ] The telling factor is that Ms. Rivard has not paid one cent of the judgment for support. She has made no attempt to pay. This application to vary is ill-conceived. It suggests that Ms. Rivard was unhappy with the judgment for support and decided not to pay it rather than appealing it. A motion to vary is not an appeal. It must be based on a material change of circumstances. I find that Ms. Rivard’s income is not less than Justice Wright determined it to be at trial; rather it is greater by more than $5,000.
[ 12 ] The motion to vary is dismissed. If Mr. Rivard wishes to claim costs, and costs are not agreed, either party may apply to the trial coordinator within 30 days to obtain a hearing date for costs failing which costs will be deemed to be settled.
Regional Senior Justice H.M. Pierce
Released: July 27, 2012
COURT FILE NO.: FS-07-402
DATE: 2012-07-27
ONTARIO ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: RAYMOND FERNAND RIVARD Applicant - and – JUDITH IRENE RIVARD Plaintiff REASONS ON MOTION TO VARY Pierce, J
Released: July 27, 2012
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