SUPERIOR COURT OF JUSTICE - ONTARIO
Editor’s Note: Corrigendum released on July 25, 2013. Original judgment has been corrected with text of corrigendum appended.
COURT FILE NO.: FS3388-13
DATE: 20130724
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Pascall (Mbolekwa) v. Mbolekwa
BEFORE: Ellies J.
COUNSEL: Don C. Wallace, for the applicant
Erin Fitzpatrick, for the respondent
HEARD: July 19, 2013
ENDORSEMENT
[1] Ms. Pascall seeks an order for temporary child and spousal support (see the Notice of Motion at Tab 2) and Mr. Mbolekwa moves to dismiss that request (see Tab 8). The main issue in these motions is the effect, if any, an existing agreement should have on the outcome.
[2] The parties entered into a separation agreement in 2006 with the help of their lawyers. Mr. Mbolekwa agreed to pay spousal support in the amount of $400 per month and child support for the parties’ three children in the amount $1,413 per month, based on yearly income of $85,000. The agreement required that the issues of entitlement to and the amount of spousal support would be reviewed after four years, but that was not done. Instead, the parties agreed to increase the amount being paid as Mr. Mbolekwa’s income also increased. By August of 2012, Mr. Mbolekwa was paying Ms. Pascall $550 per month.
[3] The agreement also required Mr. Mbolekwa to increase the child support payments in accordance with increases in his income and the provisions of the Child Support Guidelines, which he did. Pursuant to the terms of the agreement, child support was payable only until the earlier of a number of events occurred, including the child turning 18 and ceasing to be in full-time attendance at a “recognized program” of post-secondary education, and the child obtaining her first post-secondary degree.
[4] The two oldest children, Tessa and Samantha, are now 21 and 19 years old, respectively. Tessa obtained a diploma in hairdressing from Algonquin College in July of 2011, following which Mr. Mbolekwa terminated child support pursuant to the agreement. In January, 2012, however, Mr. Mbolekwa agreed to fund Tessa’s attendance at the Young Americans College of the Performing Arts (“the College”). She has now completed her first year there and plans on returning in September for another year. In the meanwhile, she is working as a hairdressing apprentice.
[5] This past spring, Samantha completed her second year at the College. However, she is short two courses, which she plans to complete beginning in the fall. At the present, she is looking for summer employment.
[6] In August of 2012, Mr. Mbolekwa stopped paying spousal support. Instead, he began to pay for all or substantially all of the expenses associated with the attendance of the two older girls at the College. He deposes that since he stopped paying spousal support, he has paid more than $40,000 in such expenses, including nearly $10,000 that he paid for his youngest daughter to participate as an exchange student recently.
[7] On behalf of Ms. Pascall, it is argued that Mr. Mbolekwa has repudiated the separation agreement by ceasing to pay spousal support. Therefore, I am urged to award spousal support without regard to the agreement. I am also urged to order Mr. Mbolekwa to fund the girls’ attendance at the College for this coming year in lieu of paying monthly child support.
[8] Mr. Mbolekwa’s position is a little harder to determine. He appears to have taken contradictory positions with respect to the extraordinary expenses associated with attendance at the College. He argues, both in his affidavit and at the hearing, that the College is not a properly accredited program and that, therefore, he is no longer obliged to pay child support for either Tessa or Samantha. He contends that he can no longer afford those expenses. However, in his affidavit (at tab 9, para. 30) he indicates that “will again assist (Tessa) with her education and living expenses” when she returns to the College in September. He does not say the same thing with respect to Samantha, even though Tessa has already completed one post-secondary program and Samantha has not yet done so.
[9] I do not believe that the agreement should be ignored in making a temporary order at this stage. Section 56(4)(c) of the Family Law Act provides that a separation agreement may be set aside in accordance with the law of contract. The question of whether the agreement has been repudiated is an issue for trial. Deciding that question requires a determination not only of whether there has been a breach, but also of whether the breach has the effect of terminating the agreement.
[10] The agreement in this case might also be set aside on the basis of the principles set out by the Supreme Court of Canada in Miglin v. Miglin, 2003 SCC 24, [2003] S.C.J. No. 21. Either way, however, the issue should not be decided in a summary way (see Kelly v. Kelly, 2004 4328 (ON CA), [2004] O.J. No. 3108 (Ont. C.A.), at para. 22), which is effectively what I am being asked to do on behalf of Ms. Pascall.
[11] In my view, with respect to spousal support, the situation as it existed before August, 2012 should be maintained. Mr. Mbolekwa shall be ordered to resume paying spousal support in the amount of $550 per month, commencing August 1, 2013. He shall pay the further sum of $450 per month until all arrears, less the $1,000 that he was ordered to pay on July 5 as a condition of the adjournment, are paid in full.
[12] With respect to child support and extraordinary expenses, the status quo should be preserved. Mr. Mbolekwa argues that the College is not a recognized program and that, therefore, he is no longer required to pay ongoing child support or contribute towards extraordinary expenses with respect to Tessa and Samantha. However, Mr. Mbolekwa participated fully in the decisions that led to the girls attending these programs and it would be unfair in my view to allow him to withdraw his support before the girls have a reasonable opportunity to finish what they started.
[13] Therefore, Mr. Mbolekwa will pay the sum of $952 per month for the support of Olivia, which is the amount payable by a payor earning $109,200 per year. The parties shall bare the expenses associated with the attendance of the two oldest children, Tessa and Samantha, at the College for the completion of their programs, and for any extraordinary expenses incurred with respect to Olivia, in proportion to their incomes. For the purpose of this temporary order, the parties’ incomes shall be as shown in their 2012 tax returns, namely $109,235 for Mr. Mbolekwa and $31,563 for Ms. Pascall. The issue of how much Ms. Pascall should have contributed to past extraordinary expenses, if anything, must be dealt with at trial, once a finding has been made concerning the allegation that Ms. Pascall earns undeclared income and a proper accounting has been undertaken of what each party should have paid or received.
[14] I note Mr. Mbolekwa’s evidence that he has been admitted to a graduate program at York University, commencing in August (his affidavit says August of 2012, but that is obviously an error). This was not mentioned in argument. That may be because Ms. Fitzpatrick was filling in for Mr. Hamilton and, therefore, less familiar with the case, or because Mr. Mbolekwa has decided to defer his attendance at the program in order to help his daughters finish theirs. Hopefully, it’s the latter. However, as I have no way of knowing. Therefore, this order is made on a “temporary temporary” basis.
[15] Success on the motion was mixed, although Ms. Pascall was more successful than Mr. Mbolekwa. I assess the costs of the motion at $2,000 and order that they be paid at the discretion of the trial judge.
Ellies J.
Date: 20130724
COURT FILE NO.: FS3388-13
DATE: 20130725
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Pascall (Mbolekwa) v. Mbolekwa
BEFORE: Ellies J.
COUNSEL: Don C. Wallace, for the applicant
Erinn Fitzpatrick, for the respondent
HEARD: July 19, 2013
CORRIGENDUM
[16] My endorsement of July 24, 2013 contains an error in paragraph 13. In particular, the third sentence should read:
For the purpose of this temporary order, the parties’ incomes shall be $109,235 for Mr. Mbolekwa, as shown on his T4 statement for 2012, and $31,563 for Ms. Pascall, as shown in her 2012 tax return summary, adjusted in accordance with Schedule III to the Federal Child Support Guidelines.
Ellies J.
Date: 20130725