KITCHENER COURT FILE NO.: 42612/09(01)
DATE: 2013/03/27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JAROSLAW RATAJCZAK
Self-represented
Applicant
- and -
EWA RATAJCZAK
Self-represented
Respondent
HEARD: February 4, 5, 6 & 7, 2013
The Honourable Madam Justice W.L. MacPherson
[1] This is a Motion to Change brought by the Applicant, Jaroslaw (Jarek) Ratajczak. The Respondent is his former spouse, Ewa Ratajczak.
[2] After a one year common law relationship, the parties were married on July 25, 1992. The parties separated on December 1, 2006. There were three children born of the marriage; Nicole born September 23, 1994; Gabriela (Gabbie) born April 28, 2000; and Maximilian (Max) born October 4, 2001.
[3] After a six-day trial in May 2010, Justice Milanetti granted a divorce on July 30, 2010 and made the following order:
There was to be shared custody of the three children with both parties having the children in their care for 50% of the time. Nicole was included in the 50-50 time division even though she did not spend an equal amount of time with her mother as it was expected that there would be flexibility so that her time with each parent would coincide as much as possible with the younger two children. Nicole’s primary residence was designated as being at her father’s home in accordance with her wishes, while no primary residence was designated for Gabbie and Max. The two younger children were to rotate on a weekly basis between each parent’s home from after school on Friday until the following Friday morning with one overnight access visit at the other parent’s home.
On the basis of the shared custody arrangement and the factors set out in section 9 of the Child Support Guidelines, Mr. Ratajczak was ordered to pay child support to Ms. Ratajczak in the amount of $1,293 per month. This was the set-off figure for shared custody of three children and was based on imputed incomes of $70,000 for Mr. Ratajczak and $10,000 for Ms. Ratajczak.
Mr. Ratajczak was also ordered to pay spousal support to Ms. Ratajczak in the amount of $203 per month.
[4] At the time of the trial, Mr. Ratajczak was self-employed. Ms. Ratajczak was enrolled in a Registered Practical Nurse program at Conestoga College. It was anticipated that she would graduate in December 2010, obtain her nursing license in January 2011 after completing the mandatory license exam and thereafter would be able to earn a greater income.
[5] Justice Milanetti found this to be an appropriate case for a review order as there was a genuine and material uncertainty at the time of the trial as to the level of income that would be earned by Ms. Ratajczak once she was fully qualified as a registered practical nurse. As such, the above order was made, with provision for a review date of June 2011, at which time the issues of child support and spousal support were to be revisited.
[6] The July 30, 2010 order also dealt with equalization of the parties’ net family property and payment of support arrears.
[7] The equalization payment owed by Ms. Ratajczak to Mr. Ratajczak ($7,544.45) was set-off against the support arrears owed by Mr. Ratajczak ($17,107), leaving a balance owing by Mr. Ratajczak of $9,562.55. These arrears were to be repaid at the rate of $25 per month, which was set very low given the ongoing support and debt obligations, but the repayment figure was also to be revisited at the review date.
Issues
[8] The issues to be determined on the Motion to Change are as follows:
Should the quantum of child and spousal support be varied?
Should the rate of repayment of the arrears of support be varied?
[9] Although the Motion was not commenced until May 30, 2012, both parties agree that if there is to be any variation of the July 2010 order, this should be effective as of June 1, 2011.
[10] It is clear that when dealing with a review order, there is no onus to establish a material change in circumstances and that in determining what, if any, variation should be made, changes in the circumstances of each of the parties and the children, must necessarily be taken into consideration. In this particular case, there have been numerous changes in the circumstances of the children as well as in the circumstances of both parents.
Circumstances of Ms. Ratajczak
[11] At the time of the previous order, Ms. Ratajczak was a full-time student at Conestoga College. Ms. Ratajczak did graduate from the program in December 2010, receiving her Registered Practical Nurse diploma. However, for a number of reasons she did not write the licensing exam in January 2011, nor had she done so as of the date of the trial in February 2013.
[12] The expectation was that Ms. Ratajczak would be employed as early as January 2011 or certainly by June 2011. In fact, she was not employed at all in 2011. It was her evidence that she was exhausted after completing the nursing program and was simply not ready to complete the exams necessary to obtain the license. She lived off the money received from the divorce and from an inheritance received from her grandfather. In addition, she traveled to Poland from mid June 2011 until the end of August 2011, taking Max and Gabbie with her. The trip was paid for by her mother who still resides in Poland. However, during this absence, she was not looking for employment nor was she doing any preparatory work for the licensing exam.
[13] Ms. Ratajczak testified that after returning from Poland, she did apply at various long term care facilities and retirement residences (Columbia Forest; Winston Park; The Westmount) but she was not granted an interview. In early 2012, she applied at a Polish nursing home in Toronto and another nursing home in Guelph, but did not get called for an interview. She noted that she had applied several different times at Winston Park.
[14] Ms. Ratajczak advised that she had applied at Bay Shore and also had made enquiries at various local hospitals, but in both cases, learned that they would not hire an RPN with only a temporary license.
[15] Until January 2013, it was possible to obtain a temporary nursing license which would permit someone to work for six months in the nursing field without having written the final license exam. In this way, Ms. Ratajczak did obtain employment at the Emmanuel Village retirement home from early May 2012 until early July 2012. The work was on weekends only and consisted of two eight hour days for which she received an hourly pay of $18.50 per hour.
[16] Ms Ratajczak testified that effective January 2013, there have been changes in the licensing requirements such that temporary licenses will no longer be issued by the College of Nurses and in order to practice in the nursing field one must obtain a permanent license, which requires the completion of a full day exam. The examination is offered three times each year in January, May and September. Ms. Ratajczak had not completed the examination as of the date of the trial but she plans to take it when it is offered in May 2013 and would hope to have obtained some employment by the end of December 2013.
[17] In her testimony, Ms. Ratajczak confirmed that she had done various placements in the course of obtaining her nursing diploma and she particularly enjoyed working in the operating room at the hospital. Since graduation, she had done some online courses through Conestoga College in the field of operating room instruments to improve the chances of obtaining work in that area. She would prefer this over working in a retirement home as she had many concerns after working at Emmanuel Village as she was the only nurse and had to tend to residents on four different floors. She also had concerns as to other practices that she felt did not meet appropriate standards, which concerns she had expressed to the College of Nurses. She was asked to leave this position early in July 2012 and has not worked since then.
[18] As a further explanation for not obtaining employment, Ms. Ratajczak testified that she had been dealing with various health issues. After graduation, she was extremely tired and could not tolerate food, and she was experiencing nausea and vomiting. She went to her family doctor, Dr. Eskander and after blood tests were taken, discovered that she had acquired a bacteria (helicobacter pylori). Despite being placed on four different antibiotics over the course of the next two years, this was not successful in eradicating the bacteria and the associated symptoms. In addition, it was determined that she has polyps in her gall bladder and a letter dated November 21, 2102 confirms that she had been referred to a Gastroenterologist Dr. Vinod Sharma, with the first consultation appointment scheduled for March 7, 2013. At this time it is not known whether there will be a need for surgery to remove the polyps or whether surgery will be needed to remove the gall bladder.
[19] In addition, in 2011, Ms. Ratajczak developed a cyst on the middle finger of her left hand that had increased in size and surgery was required. The outpatient clinic report of Dr. Vickramjit Chahal (Plastic Surgeon) dated January 5, 2012 confirmed this diagnosis and the requirement to keep hand elevated and minimize activity for two to three weeks while the operative site healed. The surgery took place on January 24, 2012 and that report noted a requirement that she avoid activity as much as possible with follow up in two weeks. It was the Respondent’s evidence that she took eight weeks to fully recover.
[20] As a result of these circumstances, the only income available to Ms. Ratajczak has been as follows:
a) In 2011, the spousal support of $203 per month and the child support of $1,293 per month;
b) In 2012, according to the Respondent the payment of $1,496 per month continued until March 2012. According to the Applicant, he paid this amount until April 2012. No Family Responsibility Office records were provided, but it was agreed that since May 2012, the support payments had been reduced to $1,000 per month. The Respondent did work during the summer earning approximately $3,000 (based on the paystub provided and a gross bi-weekly income of $325 plus holiday pay). In November 2012, the Respondent began receiving Ontario Works benefits of $1,100 per month. She also began receiving Child Tax and Ontario Tax benefits of $287.39 per month in July 2012.
c) In 2013, as a result of an assignment of the support, the Respondent has continued to receive Ontario Works monthly in the amount of $1,084 ($49 overpayment is deducted) together with the Child Tax and Ontario Tax benefits.
Circumstances of Mr. Ratajczak
[21] At the time of the previous order, Mr. Ratajczak was self-employed in the field of computer programming services, website and custom software solutions. Despite a Notice of Assessment for 2009 of $60,191, Justice Milanetti did not accept that income figure for purposes of support. She noted,
I am unsure how Mr. Ratajczak continues to get credit based on the income he claims; something does not ring true. He indicated his income has never reached $100,000; it is between $60,000 and $70,000.” She imputed an income of $70,000 to Mr. Ratajczak for purposes of support, commenting “if anything that is erring on the low side as I expect he should be working more than 30 hours per week …and I am not persuaded that his self-employed earnings are as low as he claims given his spending pattern.
[22] While Mr. Ratajczak continued to be self-employed in 2011, his income from that business increased to $98,335 as confirmed in the Notice of Assessment for 2011. This was a significant increase over the 2010 Notice of Assessment of $64,576. Mr. Ratajczak testified that his largest customer, Xylem of Canada, from whom he received 80% of his self-employment income, underwent a restructuring process at the end of 2011. As a result, he was offered a full-time salaried position as of February 2012, from which he now earns an annual income of $98,610.
[23] This position does require more travel than in the past. Mr. Ratajczak testified that it has been minimal and, in November 2012, entailed 1½ weeks to travel to Sweden; 2 days to travel to Rochester, NY in December 2012. He offered to take makeup time (which did not happen) or to pay $20 per day. He did acknowledge that unlike working exclusively from his home, he does now have an office in Guelph and he is sometimes required to travel there. He was somewhat vague when asked how often he had to attend at the office as it would depend on the project.
[24] Ms. Ratajczak submitted that there is extensive travel involved with Mr. Ratajczak’s employment, often at the last moment and with little notice to her. She did not provide any other travel dates than noted by Mr. Ratajczak.
[25] The other change in Mr. Ratajczak’s circumstances relates to his debt situation. As set out in the reasons for judgment, a large part of the Applicant’s income was being used to service a number of debts including mortgage $227,130; a Bank of Nova Scotia line of credit $18,312; Toronto-Dominion line of credit of $1,500; Royal Bank of Canada line of credit of $8,955; car loan $30,756; VISA $20,205; 2009 taxes of $10,586.
[26] Mr. Ratajczak continues to have the mortgage debt and car loan, but as a result of a Consumer Proposal in early 2012, all of the other debt had been reduced to $28,500 and is serviced by monthly payments of $475, with the debt being paid in full in four more years.
Circumstances of the Children
Gabbie
[27] There have been various changes in the residency of the children since the order of July 30, 2010.
[28] Both parties agreed that as of the Fall of 2011, Gabbie began to spend weekdays with her mother, while spending most weekends with her father. This also coincided with a change in schools from St. Dominic’s to John Sweeney.
[29] Ms. Ratajczak suggested that this took place in September 2011 immediately following their return from Poland at the end of August. She estimated that Gabbie spends approximately 70% of the weekend time with her father. This was disputed by the father as he suggested that Gabbie had spent all but one or two weekends with him, together with most holidays. Nevertheless, he acknowledged that this change to spend weekdays with her mother was in accordance with Gabbie’s wishes and that this has been in place since September or October 2011.
[30] Ms. Ratajczak submits that Gabbie now resides primarily with her and has essentially done so since mid-June 2011, when they left on their trip for Poland.
[31] Mr. Ratajczak states that the parties continue to have a 50/50 time sharing arrangement, and that this slight change does not result in Gabbie spending more time with her mother, as the time sharing continues to be balanced out between the weekdays and weekends/holidays.
Max
[32] At about the same time as the time sharing arrangement changed with Gabbie, there was also a change with the arrangements with Max. He began spending the weekends with his father, but continued to alternate the schooldays on a week about basis going between both parents’ homes.
[33] This also coincided with a change in schools from St. Dominic’s to John Sweeney. Mr. Ratajczak submitted that he had no say in this change in schools. Ms. Ratajczak testified that previously Max had been getting in fights and getting into trouble regularly at school and that he was struggling academically getting mostly C’s. She noted that he is now doing much better attaining B+’s in math and English and he is no longer having disciplinary problems.
[34] The next change came in April 2012. Each of the parents gave a very different version of events concerning an incident between Max and his mother.
[35] From the father’s perspective, on April 10, 2012, the mother had slapped Max across the face or head. The child was not physically harmed, but was emotionally harmed by the mother’s actions. The Children’s Aid Society and the police became involved, which resulted in Max remaining with his father 100% of the time until September 2012 with the exception of 15 days interspersed over that time period. With his father’s encouragement, Max did begin to have some contact with his mother in or about May 2012, but he remained primarily with the father.
[36] From the mother’s perspective, what led to this incident was that Max had hacked into and damaged her IPhone. She took Max and Gabbie to their father’s home and she went to the Apple store for help in repairing her phone. When she returned home, she could not locate her pink Toshiba laptop in her home. She believed Max must have taken it, but Mr. Ratajczak refused to discuss any of this with her. She went to his home with a police escort and Mr. Ratajczak advised that Max had confirmed that he did not have his mother’s laptop. When the police officer spoke directly to Max, that officer then came out of the home with the mother’s laptop.
[37] Ms. Ratajczak acknowledged that Max did continue to stay full-time with his father until mid-May 2012, but, at that time, contact with the mother was re-established, and shortly thereafter, it went back to the modified schedule which had been in place since the Fall of 2011 (consisting of alternating weekdays at both parents’ homes and most weekends at the father’s home). The only exception to that has been if Mr. Ratajczak is travelling for his work and more recently if Gabbie has a volleyball tournament or has midweek volleyball practices (each Tuesday and Thursday from 6 p.m. to 9 p.m. and Saturdays 12 p.m. to 2 p.m.). Max does not like to stay on his own and is dropped off at his mother’s home. She also noted that Max does have some health issues and she is usually the parent who gets the call and picks him up from school.
[38] The Family and Children’s Services of the Waterloo Region did conduct an investigation of the “slapping” incident. After speaking with both parents and individually interviewing Max, they determined that risk of physical harm could not be verified and they were scheduled to close their file. However, as confirmed in a letter dated August 30, 2012, at the request of the mother the agency was continuing to provide support on a voluntary basis, in the form of exploring counselling options to help the mother deal with stress and in supporting Max by enrolling him in the Incredible Kids program. Ms. Ratajczak testified that the Family Services Worker is Jana Tatton who continues to be involved with the family by attending at her home approximately once per month.
[39] It was also indicated that the agency has been assisting the parents to deal with the conflicts in the parenting schedule for the children and the parents have been encouraged to attend mediation to deal with these issues. Both parties testified about several incidents where the police have been asked to intervene in disputes concerning the children’s time with each parent.
[40] While both parents testified that they were prepared to be flexible about the time sharing arrangements, they were equally adamant as to the amount of time that the children were spending with each of them, but no one had kept records (such as on a calendar) to substantiate same.
[41] Mr. Ratajczak indicated that with the change in the residence of Max in early April 2012, after making the support payment of $1,496 to Family Responsibility Office on April 3, 2012, he unilaterally reduced the support payment to $1,000 per month. Although there was a disagreement as to when they returned to the modified schedule (Ms. Ratajczak stating it was later in May 2012 and Mr. Ratajczak stating that it was not until September 2012), Mr. Ratajczak has continued to only pay $1,000 per month rather than return to the Court ordered support payment of $1,496 per month.
Nicole
[42] Neither parent provided any evidence regarding Nicole’s residence following the July 2010 order. The court was left with the impression that she continued to reside primarily with her father and spent some time with her mother, albeit not an equal amount of time. Mr. Ratajczak alluded to the fact that he had overpaid child support as a result of the prior Court order, but he took no steps to appeal that order or to vary it in advance of the review date.
[43] There was in fact a change in Nicole’s circumstances as of September 2012, when she became enrolled in an architectural program at University of Waterloo School of Architecture. For the first four months of this program, Nicole continued to reside with her father and he drove her to campus in Cambridge on a daily basis. The father noted that he incurred substantial gas costs which he estimated to be about $500.00 per month associated with this arrangement. No receipts were provided to confirm this additional expense and he did acknowledge that on some occasions she slept over at a friend’s home in Cambridge and did not return at the end of the day.
[44] As of January 2013, Nicole has obtained an apartment in Cambridge at a cost of $425 per month to continue until April 30, 2013. At one point, the Applicant suggested that he provided $100 per week for her grocery and other expenses, but later in his evidence he suggested that he purchased the groceries and what he did not spend on food, he then provided in cash to her. He later indicated that as she did not have time to cook and shop for groceries, he cooked the meals and provided them to her in containers.
[45] Nicole did obtain a student loan of $8,800 which Mr. Ratajczak stated covered the tuition cost and he advised that she also received a grant of $2,000. There was no documentation provided to verify the student loan and grant amounts. Mr. Ratajczak indicated that he had provided his income information to his daughter, but that he did not see the Student Loan Application and that he trusted Nicole to complete the OSAP application on her own.
[46] As for the expenses, there was no documentation provided to verify the tuition expense. There was some documentation provided with regard to other expenses incurred, but this was far from complete. The documentation confirmed the following: Adobe software $456; School Trip $420 and School/Key fees $92; Books $51.98. There was a receipt from Amazon for $433.99, but no indication as to what books were purchased. It was indicated that second-hand books were purchased at a cost of $150, but no confirmation as to who paid for these.
[47] While documentation was provided from Waterloo University which confirmed that certain purchases were mandatory such as a First Year Kit ($650) and Rhino software, there were no receipts provided for these, nor was it clear who paid these expenses. Further, on the Rhino software documentation there were separate prices for the software $175 and a V-ray for Rhino $255 and a combined price of $430 – but it was not clear what was actually purchased. It was also not clear whether the grant of $2,000 was used for these expenses, or who actually paid for them. It was also indicated that approximately $400 was spent for miscellaneous items, but no receipts were tendered.
[48] Finally, it was indicated that a computer will need to be purchased for Nicole as she is currently using an older one that had belonged to Mr. Ratajczak before he received a new computer as a benefit of his employment with Xylem.
[49] Initially, it was indicated by Mr. Ratajczak that Nicole had only been employed in a deli since 2011 and he estimated that her earnings were approximately $4,600. Ms. Ratajczak indicated that Nicole had been employed throughout high school. Mr. Ratajczak acknowledged that he should have been better at controlling her earnings and how she spent her money. It was his evidence that despite earning almost $5,000 (a T-4 for 2011 in the amount of $4,766.64 was produced) and presumably a similar amount in 2012, he indicated that she only had savings of $1,000 to put toward her education expenses.
Analysis of the Issues
1. Should the quantum of child support and spousal support be varied?
Positions of the Parties
[50] The Applicant takes the position that the Court should impute income to the Respondent in the amount of $46,800. This is based on the Respondent working full-time and earning $22.50 per hour. He submits that she should be self-sufficient by now and should be contributing not only toward her own support, but toward the support of the children based on that level of income.
[51] The Applicant also submits that the court should address the changes in the circumstances of the children, which include that the parenting of the two youngest continues to be shared on an equal basis, that he has primary financial responsibility for Nicole and that he is now incurring additional expenses for Nicole’s post-secondary education expenses.
[52] The Respondent takes the position that due to unforeseen circumstances she is not yet qualified to work as a Registered Practical Nurse and that it is not appropriate to impute any income to her. She hopes to obtain the permanent nursing license in May 2013 and to obtain some employment by December 2013. However, she notes that she is not aware of anyone from her program who has been able to obtain full-time work and that most positions begin as part-time weekend work. Given her responsibilities in caring for the two younger children, she is not able to take on several part-time positions.
[53] The Respondent submits that she had Gabbie and Max with her on a full-time basis from June 12, 2011 until the end of August 2011 when they traveled together to Poland, and that the child support should have been adjusted. She submits that Gabbie has continued to reside primarily with her since September 2011 and that Max has continued to be with both parents on a shared basis, and that these changes would require the child support to be adjusted accordingly.
Spousal Support
[54] There is no question that a spouse does have an obligation to make reasonable efforts to be self-supporting. However, to the extent that a spouse is not capable of being self-sufficient, they can look to their spouse for continued support. On a review, the court must realistically assess a person’s potential for self-sufficiency and whether reasonable steps have been taken toward attaining self-sufficiency.
[55] In the circumstances before me, while I accept that there have been some circumstances beyond the Respondent’s control (her health issues; the change in the licensing provisions; availability of full-time and part-time positions as an RPN) that have impacted on her ability to be self-supporting, there have been decisions made by the Respondent (traveling for two and a half months to Poland; not taking the final licensing exams in 2011 and 2012) that have been within her control and that have limited her ability to obtain nursing positions.
[56] However, even if I were to find that she has not taken all reasonable steps to obtain employment, that does not mean that no spousal support would be payable. The Applicant seems to be under the impression that automatically upon the review date occurring (June 1, 2011) that his obligation to pay spousal support should end.
[57] As set out in section 15.2 (4) of the Divorce Act in making an order for spousal support, the court must take into consideration the condition, means, needs and other circumstances of each spouse, including: the length of time the spouses cohabited; the functions performed by each spouse during cohabitation; and any order, agreement or arrangement relating to support of either spouse.
[58] As provided for in section 15.2 (6) of the Divorce Act the court must also consider the objectives of a support order such that any such order should:
a) Recognize any economic disadvantages or disadvantages to the spouses arising from the marriage or its breakdown;
b) Apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
c) Relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
d) Insofar as practicable, promote the economic self-sufficiency of each spouse within a reasonable time.
[59] All four factors must be considered and each of the factors is assigned equal weight.
[60] As noted by Justice Milanetti in her reasons, “there appears to be a compensatory and non-compensatory basis for a spousal support order in favour of Ms. Ratajczak”. Later she states “In my view, Ms. Ratajczak has an ongoing entitlement to spousal support based upon the financial statements of both parties, the economic disadvantages that she has suffered during the marriage, and the income that she requires in order to be self-supporting and to support her children”.
[61] This was a traditional relationship that lasted 15 years. While the wife did work on a part-time basis, it was not disputed that this work was done later in the marriage, when the children were older, and that it was limited to the weekends and was always done on a part-time basis. It is also apparent that even now, there continues to be an expectation on the part of the Applicant, that when his work or other activities require the children to be cared for, that role should fall to the Respondent. The economic disadvantages arising from their marriage have not yet been overcome and, considering all of the objectives of a spousal support order, there is still an entitlement to spousal support.
[62] While the Respondent suggests that her inability to work at all is due to the fact that she is a single mother of three children, which is certainly not accurate given the ages of the children and the residency arrangements. While she does have Gabbie with her during the weekdays, she is almost 13 years of age. The Respondent only has Max on weekdays every other week. Neither child requires the type of full-time care that would preclude the Respondent from obtaining some part-time employment.
[63] For purposes of this review, after considering the evidence and section 15.2 (4) and (6) of the Divorce Act, I find that it is appropriate to impute income to the Respondent in the amount of $21,000 per year. This is essentially equivalent to the wife having obtained full-time work at minimum wage in a clerk position or, alternatively, the level of income that she could have earned if she had worked more diligently to obtain part-time employment in the nursing field. I accept that the hourly rate would have been higher ($18.50 per hour) but the hours available in that field would have been fewer. However, contrary to the Applicant’s submission, I would not impute an income based on $22.50 per hour, as that higher income would only be available if a position could have been obtained in a hospital and to start, it is unlikely that a full-time position would have been available.
[64] Although the Applicant submitted that the Court should use his 2010 income ($64,800) for the review as of June 2011, given the substantial increase in his 2011 income to $98,335, it is appropriate that the 2011 income be used. This level of income has essentially continued into 2012, with a salary of $98,610.
[65] Before considering the appropriate quantum of spousal support, I must also consider the circumstances of the children and the child support properly payable.
Child Support
[66] It is apparent from the text messages and the ongoing involvement of the police and the Children’s Aid Society that the children continue to be stuck in the middle of their parent’s disputes. The children no doubt feel like they are being pulled in opposite directions. This must stop and I encourage the parents to utilize the mediation service offered by the Children’s Aid Society in addressing the time sharing arrangements, rather than dragging the children to the police station each time there is a disagreement.
[67] This was also evident from the father’s admitted conduct of having told the children that their mother was mentally ill. While he did acknowledge that he was wrong to have said that and he apologized repeatedly to the mother during his testimony, he did not seem to comprehend how this could have any negative impact on their relationship with their mother.
[68] The mother has also used the time sharing arrangement to her advantage, particularly regarding the vacation in 2011, and I am certainly not going to reward such conduct by granting primary residence of Gabbie or Max to one of them nor will I allow either parent to use this to arbitrarily adjust their support obligation. The vacation to Poland was a choice made by the Respondent and would not justify an adjustment to the child support as of June 2011. While it does appear that since September 2011, Gabbie spends somewhat more time with the Respondent during the weekdays, this is offset by the fact that Max spends slightly more time with the Applicant during the weekends and holidays. I find that the parents continue to have shared custody of both of these children and that the children continue to be with each parent on a relatively equal basis.
[69] I would also make no adjustment to the child support based on Max moving in temporarily with his father in April 2012. The letter from the Children’s Aid Society supports the Respondent’s version of events and not that of the Applicant. It is apparent that the Applicant took advantage of a disagreement between Max and his mother and used the situation to justify a reduction in the support payment. I also accept the evidence of the Respondent that Max had resumed week about access prior to the end of that school year. Despite that, the Applicant has never increased the level of support payments presumably on the basis that he is confident that the support amount will be reduced on this review.
[70] With regard to Nicole, I have considered the child support obligations on the basis that she has primarily resided with the Applicant and that he has borne the bulk of the financial responsibility for her. However, on the evidence before me, I find that the Applicant has not been forthcoming about the post-secondary education expenses for Nicole; what has been paid by him; what has been paid by the Student Loan and Grant and what has been paid by Nicole. For those reasons, I have determined the child support obligation on the basis that Nicole resides with him, but I have not taken into consideration any section 7 expenses. Given the relatively low income level of the Respondent, her ability to contribute to such expenses would be minimal.
Review of Support Order
[71] The order of July 30, 2010 provided for a set-off of child support of $1,293 ($1,359 minus $66) and spousal support of $203 per month for a total payment of $1,496 per month.
[72] Based on the 2011 incomes ($98,300 and $21,000) and shared custody of the two younger children and primary residence of Nicole with the Applicant, the monthly child support payable by the Applicant would be $954 ($1,395 minus $441). However, the Spousal Support Advisory Guidelines* suggest spousal support at the low end of $971 per month and $1,583 per month at the high end of the range. The low end would provide the Applicant with 54% of the total Net Disposable Income, whereas the high end amount would place the parties in relatively equal income positions. Given that the Applicant has the expense of having one additional child (Nicole) in his care, an equal income position would not be warranted.
[73] Based on the 2012 incomes ($98,600 and $21,000) and the same residency arrangements for the children, the monthly child support payable by the Applicant would be $958 ($1,399 minus $441). The Spousal Support Advisory Guidelines* suggest spousal support at the low end of $978 per month and at the high end of $1,593 per month.
[74] Since the order of July 30, 2010, the Applicant’s financial situation has increased significantly as his income has increased by more than $28,000. He has also substantially reduced his debts, which was clearly a factor in setting the spousal support at the low end. The Applicant has discretionary income available to fund his activities – ski club, sailing club and volleyball and is not struggling financially.
[75] In contract, the Respondent’s financial situation is much worse than in July 2010 as she is now on Social Assistance. As previously indicated, the Respondent must assume some responsibility for the position in which she finds herself. However, the inability to be self-supporting is also related to the economic consequences of the marriage and there does continue to be an obligation on the Applicant to provide spousal support.
[76] The Respondent was seeking $500 per month in spousal support, but this was premised on her receiving full table child support for Gabbie.
[77] After considering all of the evidence, and on a review of the Order of Justice Milanetti, which has included a review of the circumstances of both parties as well as the circumstances of the children, I find that the appropriate support payable by the Applicant is as follows:
a) As of June 1, 2011, child support in the amount of $1,000 per month;
b) As of June 1, 2011, spousal support in the amount of $800.00 per month.
[78] I would make no further adjustments for June 2012 as the incomes of the parties and the circumstances of the children have remained relatively the same. I anticipate that these circumstances will continue throughout 2013 and into 2014. There continues to be some genuine and material uncertainty as to the situation of Ms. Ratajczak until she has completed the final nursing licensing and obtained employment in the nursing field. It is certainly anticipated that the circumstances of the Respondent should improve once she has a permanent nursing license and obtains part-time or full-time employment. As such it is appropriate that the support order be reviewed on June 1, 2014.
2. Should the rate of repayment of the arrears of support be varied?
[79] It is clear from the Order of Justice Milanetti that the repayment of the support arrears of $9,562.55 was set at a very nominal repayment amount of $25 per month taking into consideration various factors, including the Applicant’s income, his debt situation, and other factors. As indicated above, his income and debt situation have improved greatly, and the repayment of the support arrears must be increased to reflect this.
[80] There was no Statement from the Family Responsibility Office to confirm what payments have been made on these arrears. However, effective June 1, 2013, the payments on these arrears shall increase to $200 per month until paid in full.
SUMMARY
[81] Upon review of the Order of Justice Milanetti dated July 30, 2010, the order shall be varied as follows:
Effective June 1, 2011, the Applicant shall pay child support to the Respondent in the sum of $1,000 per month.
Effective June 1, 2011, the Applicant shall pay spousal support to the Respondent in the sum of $800 per month.
The quantum of child support and spousal support shall be reviewed on June 1, 2014.
The arrears of support under the order of July 30, 2010 shall be repaid at the rate of $200 per month commencing June 1, 2013.
SDO to issue.
Costs
[82] If the parties are unable to agree on costs, the party seeking costs shall provide me with written submissions (limited to 3 typewritten pages) together with any relevant offers to settle within 21 days of the date of these Reasons for Judgment.
MacPherson J.
Released: March 27, 2013
*DivorceMate calculations provided to the self-represented parties with these Reasons.
COURT FILE NO.: 42612/09(01)
DATE: 2013/03/27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JAROSLAW RATAJCZAK
Applicant
- and -
EWA RATAJCZAK
Respondent
REASONS FOR JUDGMENT
MacPherson J.
Released: March 27, 2013