COURT FILE NO.: FC-11-1695
DATE: 2013/06/21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
VIRGINIE CANTAVE
Applicant
– and –
PIERRE CARLENS CANTAVE
Respondent
Mimi Marrello, for the Applicant
Odette Rwigamba, for the Respondent
HEARD IN OTTAWA: February 22, 2013
REASONS FOR decision
kane j.
Submissions Re Jurisdiction – April 26, 2013
PLEADINGS IN ACTION
[1] This application was issued on November 7, 2011, in which the applicant sought a divorce based upon the separation of the parties since August 17, 2010. Such proceeding was brought under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) as am.
[2] Mr. Cantave filed his answer to this application in November, 2011 wherein he claims under the Divorce Act: (a) spousal support; (b) support for the children other than table amount; and (c) custody and access of the children. Mr. Cantave also claims under the Family Law Act R.S.O. 1990, c. F. 3, as am. [“FLA”] the following: (a) spousal support; (b) child support – table amount; (c) custody and access as to the children; and (d) equalization of net family property.
[3] Mr. Cantave alleges the date of separation was June 30, 2011.
[4] Ms. Cantave in her reply filed in November, 2011, denies the separation date of June 30, 2011, and alleges it was, at the latest, September 17, 2010. Ms. Cantave agrees to the claims under the FLA for custody and access but denies the claims under the Divorce Act and the FLA for spousal support, support for the children and equalization of net family property.
BACKGROUND FACTS
[5] The parties began living together in 1992. They married one another in Ottawa on June 24, 1994. Since marriage, the parties resided in Ottawa.
[6] The applicant, a French national, went to and graduated from law school in Ottawa. The respondent states he left university to support the applicant during her studies.
[7] The parties have two sons now aged approximately 16 and 15 years old. Both boys were born in Ottawa. The applicant was offered and accepted a position with the Federal Department of Justice when their oldest son was two months old. The respondent father states that by agreement, he left his then employment to stay home with this son. He later bought a dry cleaning business. The applicant mother co-signed on the debt incurred. The business subsequently failed. The parties as a result successfully filed a proposal with their creditors.
[8] The boys are interested in and have some proficiency in soccer, particularly the older son. The boys and the parents had or have the hope the boys will someday be professional soccer players. Each parent has played soccer over the years. The respondent also coached soccer teams for his sons and his wife in the past. He also has worked over the years as a soccer referee and continues to do so. The parents considered that soccer training opportunities were better in Europe, and France, in particular.
[9] The oldest boy was invited to join a soccer academy in France commencing in September, 2010. The parents discussed this opportunity and agreed to proceed. The agreement involved the applicant mother moving temporarily for the academic year 2010/2011 to France with the two boys in order that the oldest could attend the soccer academy and the youngest would be exposed to a higher level of soccer training.
[10] It was anticipated the applicant mother and the boys would return to live in Ottawa at the end of the school year in the summer of 2011. During that academic year, the applicant obtained permission and continued her Ottawa employment and teleworked during this period in France. The respondent remained and continued his employment in Ottawa after the applicant and the boys went to France in August, 2010.
[11] The applicant announced her separation from the respondent on September 17, 2010.
[12] The oldest of the boys was invited to the soccer academy for a second year and was anxious to attend. The parents agreed to a second year in France. The applicant for employment reasons however had to return to Ottawa in the summer of 2011. The agreement they made was that the respondent would obtain a one year leave of absence as a Federal civil servant, making some $80,000 annually, and spend this second year in France with the boys which is what occurred.
[13] On the insistence of the respondent father prior to leaving for France, the parties on August 10, 2011, signed an interim separation agreement. That agreement expired upon the earlier of the granting of a court order or June 30, 2012. It states:
(a) The applicant’s employment as legal counsel in Ottawa paid her an annual income of $159,500. The respondent held full time employment with the federal government where he earned an annual income of $76,000. The respondent’s one year leave from that employment was without pay.
(b) The parents are to have shared/joint custody of their two sons. The respondent was to reside with the two boys in France until June 30, 2012.
(c) The respondent was to return to Ottawa with the children in June, 2012 whereupon the boys were to reside equally with each parent.
(d) Given the fact that the father’s employment leave was without pay, the parties agreed the applicant would, until June, 2012, pay $4,000/month to support the boys and the respondent during this second year in France. The respondent agreed this was an exceptional provision and that such contribution was made without prejudice and would in any event end on June 30, 2012.
[14] In order to financially fund the above support provision during year 2 in France, the applicant lived in the home of a friend in Ottawa to be able to afford this payment.
[15] Contrary to the interim agreement, the respondent refused to return with the boys to Ottawa in 2012. The father announced that he and the boys would remain in France. The applicant opposed the boys remaining in France another year and wanted them to return to Ottawa.
[16] To reinforce this announced decision to remain in France, a visit by the boys with their mother in Ottawa in the summer of 2011 was refused unless the mother agreed in advance that the boys could return thereafter for another year in France. The announced justification was the sons’ wish to play soccer in France.
[17] The respondent at the end of his leave absence from work in 2012 was faced with a decision. His leave had ended. His employer in addition had declared his position surplus. The respondent had to elect to either apply for other available positions in the federal civil service or resign his employment. It was an easy decision as the respondent intended to remain in France. He waived his entitlement to an alternate position, resigned his employment and obtained a severance allowance of some $28,000 in July, 2012.
[18] The mother in July, 2012 brought a motion pursuant to their interim agreement to compel the father to return the children to Canada by July 29, 2012. The father in response brought a cross motion to allow him to remain with the children in France until June, 2013.
[19] Beaudoin J. on July 27, 2012, questioned the jurisdiction of this court to order a return of the children to Canada as neither party sought interim custody. He directed consideration of whether a third party should inquire and report upon the wishes of the children.
[20] Faced with the refusal of the father to return the children to Canada, the expiration of the interim agreement and her financial needs, the mother reduced the monthly support payments to the father to $1,000 and then to $1,200/month in July and September, 2012 respectively.
[21] Mr. Cantave has obtained a temporary residence and work permit in France, a Permit de Séjour. He and the boys have obtained French social security numbers. Mr. Cantave now works part time and is looking for full time employment. He also works as a soccer referee. His wife states he has started a soccer related training business. He states that but for the boys’ involvement in soccer, he would return to Ontario. His February, 2013 financial statement declares monthly income in France of some $2,015. Mr. Cantave states that he continues to file an income tax return with the Canada Revenue Agency.
PRESENT MOTIONS
[22] On February 22, 2013, the applicant and respondent each presented a motion. The respondent seeks (a) interim child support; (b) s.7 extraordinary child expenses; (c) interim spousal support; (d) arrears of child support; (e) s. 7 extraordinary expenses since July, 2012; and (f) spousal support arrears from July, 2012. The father’s motion material contains no undertaking or intention to return the boys to Ottawa this month, this summer, or in 2013. He states the boys’ soccer training program in France could extend another four years. It is clear he intends to remain and keep the boys in France.
[23] Ms. Cantave’s motion seeks an order that the divorce proceedings be severed from the corollary relief claimed. Mr. Cantave agrees to this request. She wishes to proceed on the basis of the separation of the parties since September, 2011.
[24] Neither of these motions claims interim custody.
[25] The jurisdictional issue identified by Beaudoin J. in July, 2012 was not argued on February 22, 2013. This court thereafter asked for and received written submissions on that issue.
[26] The applicant submits:
(a) this court has jurisdiction to grant a divorce.
(b) the applicant takes no position regarding jurisdiction regarding child support but agrees to continue payment of the same.
(c) there is no jurisdiction to make an interim order of spousal support as, under the Divorce Act, because the parties are not already divorced and under the Family Law Act, the respondent it is submitted has failed to satisfy the tests as to real or substantial connection, jurisdiction simpliciter and forum conveniens.
[27] Mr. Cantave submits that this court has jurisdiction to grant a divorce and to order payment of child support, spousal support and the arrears thereof.
JURISDICTION RE DIVORCE
[28] Under s. 3 of the Divorce Act, this court has jurisdiction to determine a divorce proceeding if either spouse has been “ordinarily resident” in Ontario for at least one year immediately preceding this application filed in November, 2011. By this point, the wife had, as planned, returned from her 12 months in France. The husband by then had left Canada in August, 2011, to reside in France until June 30, 2012.
[29] Was the wife or the husband “ordinarily resident” in Ontario for at least one year?
[30] The arrival of a person in a new locality with the intention of making a home in that locality for an indefinite period made that person “ordinarily resident” in that community. A spouse’s intention to eventually return to the previous locality did not entitle her to bring a divorce petition in that locality without having resided there for one year. MacPherson v. MacPherson (1976), 1976 CanLII 854 (ON CA), 13 O.R. (2d) 233 (Ont. C.A.).
[31] A spouse is entitled for the purpose of establishing jurisdiction in divorce proceedings to have more than one ordinary residence. Robichaud v. Robichaud (1974), 1974 CanLII 1881 (NB SC), 20 R.F.L. 14 (N.B.Q.B.).
[32] One is ordinarily resident (for the purposes of the Income War Tax Act) in the place where a person regularly, normally or customarily lives in a settled routine. The dominant element is that of permanence. Thomson v. Canada (Minister of National Revenue – M.N.R.), 1946 CanLII 1 (SCC), [1946] S.C.R. 209 (S.C.C.)
[33] Ms. Cantave intended to leave Ontario to live in France for a specific purpose for a fixed period of one year and thereupon return to her former residence in Ontario. She had no intention to live in France indefinitely and arranged a fixed permission from her employer to continue her employment during the course of that year in France.
[34] The same subsequent one year time limited arrangement for the same purpose was contracted for by the parties for the husband, at the end of which he was to return to Ontario.
[35] In the case of the applicant initially and then in the case of the respondent until he decided to not comply with the written interim agreement, each of them remained “ordinarily resident” in Ontario while each of them sequentially had a second interim residence in France.
[36] Each of the parties were “ordinarily resident” in Ontario in November, 2011.
[37] This court therefore grants the motion of Ms. Cantave and severs the claim for a divorce from the claims for other corollary relief. There is no basis to award costs of this motion. The respondent consented thereto and the relief sought is being granted to suit the applicant.
INTERIM CHILD SUPPORT
[38] The respondent submits this court has jurisdiction as to this remedy. The applicant is silent as to jurisdiction but agrees to abide by an order of child support by this court. Ms. Cantave acknowledges she has an obligation to pay child support to the respondent and has done so now since August, 2011.
[39] The case of Long v. Seelman, 2012 ONSC 1342, stands for the principle that a child need not be resident in Ontario under the Family Law Act to make an order of child support.
[40] Under s. 15.1 of the Divorce Act, this is a court of competent jurisdiction. It may therefore at the request of either party make an order, including an interim order, requiring the payment of child support.
[41] The issues on this question in Ontario are simple:
(a) What is the payor’s income?
(b) What support is payable thereon under the Child Support Guidelines (Ontario)?
(c) The income level of the respondent is not relevant to determine child support. It only relates to s.7 extraordinary expenses.
[42] No proceedings have been commenced in France. There is no risk of contradictory decisions.
[43] Based on these considerations, this court has jurisdiction to order interim child support.
INTERIM SPOUSAL SUPPORT
[44] The respondent claims interim spousal support, commencing July, 2012, under the Divorce Act and the Family Law Act. The applicant challenges the jurisdiction as to this relief and alleges France is the proper and convenient forum for this claim.
[45] The Family Law Act is silent as to this jurisdictional issue.
[46] Section 4(1)(a) and (b) of the Divorce Act involves an action solely for purely corollary relief.
[47] This court however has jurisdiction regarding this claim for interim spousal support as each of them was “ordinarily resident” in Ontario upon the issuance of this application in November, 2011. This court therefore has jurisdiction under the Divorce Act.
WHAT ARE THE CONNECTING FACTORS AND IS ONTARIO OR FRANCE THE APPROPRIATE FORUM?
[48] The relevant factors connecting this matter to Ontario include:
(a) The parties lived together in Ontario from marriage in 1994 until at least November, 2011. Both children were born in and lived in Ontario exclusively until 2010.
(b) The respondent currently holds a temporary residence permit from France. The respondent continues to file his income tax return in Canada.
(c) The applicant has been a resident here since 1992. Her income source and expenses originate in Ontario.
(d) The employment history of the respondent was Ontario until mid-2011.
(e) The history of income sharing and the reasons for any historical absence of a party from the work force during the period of this couple’s cohabitation occurred in Ontario where witnesses thereof are located.
(f) The parties signed an Ontario agreement in 2011 which contain interim spousal support provisions.
(g) Under the above contract, the respondent agreed to resume his residency here in the summer of 2012 and then breached that obligation.
(h) The respondent’s current income level and expenses originate in France.
(i) No other proceeding regarding this issue is outstanding elsewhere thereby preventing a risk of conflicting decisions.
(j) Currently, either the applicant must travel to France or the respondent must travel to Canada for a trial of this issue in that jurisdiction.
(k) The respondent’s claim for an equalization of property is provided for under the Family Law Act based on a history during cohabitation which did not occur in France. Ontario is where the corresponding records originate.
(l) France is not a party to the Ontario Interjurisdictional Support Act.
(m) The applicant’s “ordinary residence” since marriage remains Ontario. The respondent’s “ordinary residence” was Ontario until November, 2011 or thereafter.
[49] There is some artificiality to litigating the granting of a divorce, division of property and child support in Ontario and but then requiring the commencement of new proceedings in France between the same couple to determine spousal support. In addition, determination of spousal support in Ontario factors in a consideration of the amount of child support being paid.
[50] Any order of spousal support made in France could not be enforced in Ontario without commencement of a new proceeding here.
[51] Based on these considerations, I find that Ontario is the appropriate and convenient forum to determine this issue. The majority of the relevant connecting factors and evidence are here.
[52] Accordingly, this court has the necessary jurisdiction and will exercise the same in the determination of interim spousal support.
QUANTUM OF CHILD SUPPORT
[53] The applicant accepts her legal obligation to pay child support. Her current line 150 income is $149,140 and based on the Child Support Guidelines (Ontario) O. Reg. 391/97 the applicant is required to pay interim monthly child support to the respondent on the first day of each month, commencing March 1, 2013, in the amount of $2,003 plus her proportionate share of s. 7 extraordinary expenses.
[54] Section 7 extraordinary expenses include medical insurance premiums attributable to the child, expenses for education of the child and for the child’s extracurricular activities. For these children they include health insurance for the two boys in the amount of $2,293 (2/3rds of $3,475) $3,000 for school fees (reducing $3,720 which includes school supplies which are not extraordinary) and $600 extraordinary expenses for soccer equipment. Some of the $1,140 claimed for this last item is not extraordinary and is covered in child support payments. The annual total therefore is $5,893.
[55] In his financial statement, the respondent indicates he currently earns $750 per month from self-employment. He also receives child tax benefits of $265 per month. He states his current annual income is $12,000. His financial statement contains no fees for working as a referee. The respondent states he drives the children two hours a day to and from soccer practice but provides no details as to why, beyond his own interest, that is necessary.
[56] My biggest problem with the respondent’s statement of income is that its reduced level is self-imposed. Mr. Cantave signed a contract to return to Canada one year ago and then failed to honour that contract. If he cannot obtain full time employment in France after being there now two years, the logical conclusion is that he would return to Canada where he has a lengthy employment history and was earning some $80,000 per year when he left in 2011.
[57] If it is considered necessary due to soccer aspirations, that one or both boys remain in France for that purpose, these would not be the first 16 and 15 year olds who live away from home to pursue an interest in hockey, ballet or soccer.
[58] Mr. Cantave is making decisions which have financial implications. It is unrealistic after two years to conclude that Ms. Cantave should be fully responsible for such decisions by her husband, especially when they had agreed that he and the boys would return to Canada one year ago.
[59] For the above reasons, this court imputes an annual income to Mr. Cantave of $50,000. His notices of assessment for 2008, 2009 and 2010 respectively indicate a line 150 income of $47,400, $55,461 and $75,800. The evidence indicates his income in 2011 was approximately $80,000.
[60] Accordingly responsibility for the above annual extraordinary expenses will be shared on a ratio of the applicant paying 75% thereof or $4,419 which amounts to $368 per month commencing March 1, 2013. The respondent is responsible for the remaining 25%.
SPOUSAL SUPPORT
[61] Current need is apparent but is overstated given the respondent’s capacity to earn income.
[62] The applicant has some capacity to pay spousal support.
[63] This court for the same reasons imputes $50,000 annual income to the respondent on this issue.
[64] There remains a large income disparity between the parties nonetheless.
[65] The parties have been married some 16 years prior to their separation.
[66] There is evidence that the respondent’s employment history was interrupted by his staying at home for a period following the birth of the oldest child. That however was some 15 years ago. He generally was employed before and after that. His income rose to $80,000 in 2011 even without a university degree.
[67] This court awards interim spousal support to the respondent in the amount of $1,300 which is 46.0% of the net disposable income (NDI). Divorcemate calculations indicate the low, medium and high support range of $1,359, $1,800 and $2,262 using annual incomes of $149,000 and $50,000. This court adopts this lower range as it seems apparent that Mr. Cantave for economic reasons should be back in Canada where he last earned $80,000 per year. That figure is substantially more than the imputed income of $50,000.
[68] It is inappropriate on this interim application to determine entitlement as claimed for arrears of child and spousal support.
[69] The parties may submit brief written submissions as to costs with 30 days.
Kane J.
Released: June 21, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
VIRGINIE CANTAVE
Applicant
– and –
PIERRE CARLENS CANTAVE
Respondent
REASONS FOR decision
Kane J.
Released: June 21, 2013