Court File and Parties
COURT FILE NO.: 25462/03
DATE: 2013-09-06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Patricia Meissner Applicant
– and –
Bertram Meissner Respondent
Counsel: Harold Albrecht, Counsel for the Applicant Self Represented
HEARD: March 4th and 5th, 2013
REASONS FOR JUDGMENT
FITZPATRICK J.
[1] The factual background for this family is uncomplicated. The parties were married May 14, 1988 and separated on April 1, 2002. There were two children of the marriage, namely Calvin Meissner born February 16, 1994 and Matthew Meissner born April 6, 1997. The Applicant was born March 5, 1965 (i.e. she was 37 at separation and 48 at date of trial). The Respondent was born February 24, 1964 (i.e. he was 38 at separation and 49 at date of trial).
[2] The parties attended before Langdon J. on June 23, 2004 to address a motion brought by the Respondent for various relief. The Order made by Langdon J. on June 23, 2004 (the “2004 Langdon Order”) provided, among other relief, the following:
a. The Respondent to pay spousal support of $750.00 monthly to the Applicant based on the Respondent’s 2003 income of $80,200.00 and the Applicant’s 2003 income of $16,000.00 (not including spousal support) with no time limit placed on the monthly support obligation; and,
b. The Respondent to pay to the Applicant child support respecting Calvin and Matthew in the amount of $1,033.00 monthly.
[3] The 2004 Langdon Order did not require the Respondent to contribute to section 7. special/extraordinary expenses.
[4] The Respondent, Bertram Meissner on March 28, 2011 issued his original Motion to Change the 2004 Langdon Order. This original Motion to Change sought only to terminate the Respondent’s obligation to pay spousal support to the Applicant effective November 1, 2010.
[5] The Respondent paid the child and spousal support owing up to and including December 1, 2011 pursuant to the 2004 Langdon Order but unilaterally ceased any further support payments
[6] The Respondent filed an Amended Motion to Change the 2004 Langdon Order, which was filed December 23, 2011 (the “Amended Motion”). The Amended Motion sought the following:
a. To terminate the Respondent’s obligation to pay child support respecting Calvin Meissner born February 16, 1994 effective December 1, 2011;
b. To adjust ongoing child support to reflect payment for one remaining child, Matthew Meissner born April 6, 1997 based on the Respondent’s current income;
c. To compensate/credit the Respondent for any overpayment of child support respecting Calvin Meissner;
d. To dismiss the Applicant’s claim for contribution from the Respondent to section 7. special/extraordinary expenses; and,
e. To terminate the Respondent’s obligation to pay spousal support to the Applicant effective November 1, 2010.
[7] It is worth noting that the Respondent was initially represented by counsel who prepared both the original Motion to Change and the Amended Motion on behalf of the Respondent.
[8] In her Response, the Applicant sought the following relief:
a. An order terminating the Respondent’s obligation to pay child support respecting Calvin Meissner effective December 1, 2011;
b. An order fixing the Respondent’s income for support purposes at $81,332.00;
c. An order that the Respondent’s existing spousal support obligations of $750.00 monthly continue indefinitely; and,
d. An order that the Respondent pay $70,000.00 into the court account as security for his support obligations.
[9] The parties each with their respective counsel attended before Langdon J. again on June 28, 2012 to address a motion then brought by the Applicant to file an amended Response to the Respondent’s Motion to Change. The Applicant’s motion was granted. The parties then consented to terminating the Respondent’s child support obligation respecting Calvin Meissner effective December 1, 2011, which consent relief also formed part of the Order of Langdon J. made June 28, 2012 (the “2012 Langdon Order”).
Was a Motion to Change the Appropriate Process?
[10] The first point that must be addressed is the very process by which the Respondent proceeded in this case.
[11] As noted above, the 2004 Langdon Order was made following a motion brought by the Respondent. Clearly, the 2004 Langdon Order is not a final order. Query then why the Respondent commenced, and the Applicant participated in a Motion to Change proceeding pursuant to Rule 15 of the Family Rules? This process applies “only to a motion to change a final order” (see Family Law Rule 15(2)(a)). The distinction is important given that different tests apply depending on whether the court is sitting as the original trial court on an issue versus a trial on a Motion to Change a final order.
[12] I do note that neither party raised the above noted process issue when before me. They simply proceeded to conduct on a trial on the foundation of the Motion to Change commenced by the Respondent. However, I cannot simply ignore the Family Rules and the distinction(s) that exist depending on what the correct process should be.
[13] Given that neither party raised this issue and that the parties clearly intended to have a trial with respect to the support issues, I will treat this matter as having come before me as a trial at first instance based on the court’s general discretion to control its own process and the Family Law Rules (see Rule 2(2), 2(3), 2(4) and 2(5)). This means that the Respondent does not have to establish material change as a threshold for the court to have the ability to vary the 2004 Langdon Order. As the trier of first instance, I am at liberty to consider and determine the support issues based on the evidence before.
The Income of the Parties
[14] The Respondent was employed as an electrician with the Ford Motor Company assembly complex at Oakville, Ontario when he commenced his motion. In support of his original Motion to Change the Respondent filed an affidavit he swore on January 4, 2011 (the “Respondent’s Affidavit”). The Respondent’s Affidavit submitted the following reasons in support of his request to terminate his spousal support obligations:
a. His annual income had decreased arising from the impact of the worldwide economic crisis on the automotive industry generally, including reduced sales, industry restructuring and employee concessions and the Respondent’s reduced hours of work and pay specifically; and,
b. His having remarried at February 2010, his new spouse being unemployed at the time of the Respondent’s Affidavit and the Respondent having the financial responsibility for his new spouse along with her two children from a previous relationship who also were living with the Respondent.
[15] The Respondent’s circumstances changed subsequent to filing his original Motion to Change. At November, 2011, the Respondent’s employment with the Ford Motor Company permanently ceased.
[16] The Respondent admits that he voluntarily ceased his employment with the Ford Motor Company after 16 years effective November 11, 2011. Specifically at September 13, 2011, the Respondent was offered a “separation incentive to non-retirement eligible skilled trade employees” arising from the closure of the St. Thomas Assembly Plant and related restructuring. The amount payable under the separation incentive was based on the employee’s years of service.
[17] The Respondent on September 15, 2011 signed the “Special Termination of Employment Program – Employee Application” confirming his request to cease his employment. By letter dated November 8, 2011, the Respondent’s Application was approved pursuant to the following terms:
a. The Respondent’s last day worked was November 11, 2011 with termination date of November 14, 2011;
b. The Respondent was paid a separation incentive of $100,000.00; and,
c. The Respondent was able to transfer the commuted value of his vested pension, namely $115,918.81to an individual/private pension account.
[18] The Respondent by “Lump Sum Payment Allocation” dated November 10, 2011 directed that his separation incentive of $100,000.00 be paid as follows:
a. $30,000.00 to an R.R.S.P. in the Respondent’s name; and,
b. $70,000.00 to an R.R.S.P. in the name of the Respondent’s spouse, Linda Keddy.
[19] The Respondent transferred the $115,918.81 commuted pension to a L.I.R.A. in his name.
[20] The Respondent’s evidence at trial was that he saw the separation incentive offered by Ford as a chance to leave their employ and become self-employed operating his own business as an electrician for hire. There was no evidence the Respondent’s employment at Ford was in jeopardy. He testified that he did not make any applications for employment and provided no other evidence of attempts to find employment or to retrain following November, 2011.
[21] The Respondent’s evidence at trial respecting the income he has earned from self-employment was nearly non-existent. The Applicant’s Exhibit Book (filed as Exhibit #2 on this trial) included a summary of deposits with explanations respecting the Respondent’s bank account forwarded by his then counsel. This summary suggested that the Respondent deposited a total of $6,138.74 resulting from “working for friends” after he left the employ of the Ford Motor Company, which figure included the costs of materials. The Respondent refused to answer questions pertaining to the identity of these friends/customers citing confidentiality concerns. The Respondent provided no other material evidence respecting his earnings after leaving Ford’s employ.
[22] The Respondent did provide (Respondent’s Affidavit of Documents filed as Exhibit #3) copies of the following documentation as evidence of his income:
a. 2007 Notice of Assessment showing Line 150 income of $83,927.00;
b. 2008 Notice of Assessment showing Line 150 income of $85,642.00;
c. 2009 Income Tax Return and Notice of Assessment showing Line 150 income of $75,177.00;
d. 2010 Income Tax Return and T4 showing Line 150 income of $55,604.00. The Respondent’s testimony at his Questioning (see transcript filed as Exhibit #6) was that his 2010 income was lower due to layoffs and sick leave of approximately 4 weeks; and,
e. 2011 Income Tax Return and T4 showing Line 150 income of $171,087.93 comprised of employment income of $70,858.90 to November 11, 2011 plus an additional $100,229.03 in non-eligible retiring allowances from his payments upon ceasing his employ with Ford. In cross-examination the Respondent agreed with the mathematics suggested by Applicant’s counsel that the Respondent’s income extrapolated where he had worked to the end of 2011 would have produced a 2011 income of $81,332.00.
[23] The Respondent’s most current Financial Statement sworn May 24, 2012 was before the court for this trial. This sworn Financial Statement states the Respondent has been “unemployed since November, 2011” and attests to the Respondent having no income whatsoever from any source. Although there is no amount entered into the appropriate column in the Financial Statement (i.e “Amount Received/Month), under the heading “Income Source” there is a note stating “Self-employment income (monthly amount before expenses: $3,000.00 estimated)”. This estimate was not evidence given by the Respondent at trial. The Financial Statement attests to the Respondent having annual expenses of $43,957.44. I should also note that the Financial Statement sworn May 24, 2012 was prepared and sworn when the Respondent was represented by counsel.
[24] The Respondent did not produce his 2012 Income Tax Return or Notice of Assessment.
[25] The Respondent in cross-examination confirmed that he married Linda Keddy at February 27, 2010. The Respondent admitted the following in terms of his and Ms. Keddy’s finances:
a. They jointly own their home. The Respondent’s Financial Statement sworn May 24, 2012 assigned a value to that home of $310,000.00;
b. The Respondent, Ms. Keddy and Ms. Keddy’s two children from her prior relationship reside in the jointly owned residence;
c. The Respondent pays the mortgage and taxes for the joint residence from his bank account. The Respondent’s Financial Statement sworn May 24, 2012 assigned a balance outstanding on the mortgage of $275,000.00 with monthly payments of $1,474.00 plus property taxes of $217.91 monthly;
d. The Respondent has no credit cards in his name;
e. The Respondent pays amounts owing on the VISA credit card in Ms. Keddy’s name from his bank account;
f. The Respondent guaranteed a loan for his step-son (Ms. Keddy’s son) to attend Sheridan College.
[26] The Respondent refused to provide documentation or answer questions pertaining to the income of Ms. Keddy taking the position that her income was not relevant to the support issues before the court. The only evidence of Ms. Keddy’s income is the note in the Respondent’s 2010 Income Tax Return that she earned $44,485.97 that year. The Respondent testified that Ms. Keddy ceased employment at the latter part of 2010. As stated above, the Respondent’s Affidavit stated that he had the financial responsibility for Ms. Keddy along with her two children from a previous relationship who also were living with the Respondent.
[27] The Applicant presented the following evidence respecting her income:
a. That she worked for 6 years during the marriage but then both parties decided she should remain at home to care for Calvin and then also Matthew. The Applicant testified that she was earning approximately $25,000.00 at point she ceased this employment;
b. That following separation she worked full-time, cared for the children who resided with her and returned to school at July, 2002 to train as a medical/laboratory technician;
c. That following her schooling she obtained employment as a medical/laboratory technician with Lifelabs at their Burlington, Ontario location. This was then and remains classified as a “part-time” position. The Applicant stated the location was initially important given its proximity to her then residence and care obligations for the children;
d. That she remains employed with Lifelabs at their Burlington, Ontario location as a medical/laboratory technician in a “part-time” position. The Applicant testified that “part-time” means she is guaranteed 25 hours weekly, that “full-time” classification provides a guarantee of 37.5 hours, that the pay rate and benefits are identical for part-time and full-time and that only 3 of the 7 technicians she works with at the Lifelabs are full-time classified;
e. That she works Saturdays at different locations when extra hours are available and that she averages approximately 30 hours per week;
f. That she has applied for full-time positions when available at Lifelabs confirmed by her email to her manager, Jennifer Todoruck dated March 31, 2011 applying for a full-time position that she unfortunately did not obtain;
g. That she otherwise applied for positions at fertility clinics, medical offices, hospitals and walk-in clinics.
[28] The Applicant testified that her financial needs exceeded her income, including support, such that she was forced to sell her residence at June, 2012 and now rents, had to withdraw all of her R.R.S.P. savings and borrow monies from family, namely her sister Cindy Gandza and friends, namely Michael Rixon. The Applicant stated she used the funds from the sale of her residence to pay her outstanding mortgage, credit card, legal fees and private loans. The Applicant filed documents during this trial to corroborate all of these transactions.
[29] The Applicant testified that she also rented out 2 bedrooms before she sold her residence receiving approximately $450.00 monthly for a cumulative period of 12 months. This rental income was not reported on her income, and was last received in or about 2010.
[30] The only other matter the Applicant testified to was respecting a trip she took to California at April, 2011. This trip was to visit her other sister who resides in California. The Applicant testified that her sister, Cindy Gandza paid for the flight and the Applicant spent approximately $200.00 during the trip. Ms. Gandza also testified in this case confirming she paid for the Applicant’s flight with corroborating documents.
[31] The Applicant did provide (Applicant’s Exhibit Book filed as Exhibit #2) copies of the following documentation as evidence of her income:
a. 2008 Income Tax Return Information showing employment income of $25,336.00;
b. 2009 Income Tax Return Information showing employment income of $28,731.00;
c. 2010 Income Tax Return Information showing employment income of $28,462.00;
d. 2011 Income Tax Return Information showing employment income of $26,626.00; and,
e. 2012 T4 showing employment income of $31,603.76.
[32] Each party in their evidence and submissions suggest the other should have an income imputed.
[33] Income for child and spousal support purposes is determined the same way, namely pursuant to the Child Support Guidelines (see: Bak v. Dobell, 2007 ONCA 304, 2007 CarswellOnt 2324 (C.A.), Smith v. Smith, 2012 CarswellOnt 3113 (S.C.J.), Ludmer v. Ludmer, 2013 CarswellOnt 1625 (S.C.J.) and Spousal Support Advisory Guidelines).
[34] The principles that apply in determining whether to impute income are the same in both child support and spousal support cases (see: Smith, Perino v. Perino, 2007 CanLII 46919 (ON SC), 2007 CarswellOnt 7171 (S.C.J.) and Rilli v. Rilli, 2006 CanLII 34451 (ON SC), 2006 CarswellOnt 6335 (S.C.J.)). Income imputation is not strictly limited to the payor spouse. It may also be imputed to the recipient spouse (see Spousal Support Advisory Guidelines).
[35] Income may be imputed in circumstances where an individual is intentionally under-employed or unemployed (see: Drygala v. Pauli, 2002 CanLII 41868 (ON CA), 2002 CarswellOnt 3228 (C.A.) and section 19(1) of the Guidelines).
[36] Prior to a court imputing income to a party under Section 19(1), they must undertake the three part analysis set out by the Court of Appeal in Drygala (2002). Specifically, a court must ask itself:
a. Is the spouse intentionally under-employed or unemployed?
b. If so, is the intentional under-employment or unemployment required by virtue of the needs of a child of the marriage or any child under the age of majority?
c. If the answer to question b. is negative, what income is appropriately imputed in the circumstances?
[37] In Smith v. Smith (2012), Justice Chappel outlined the relevant factors for determining whether to impute income as follows:
a. The onus is on the party seeking to impute income to establish an evidentiary basis upon which to establish that the other party is intentionally unemployed or underemployed;
b. It is not necessary to establish bad faith or an attempt to thwart support obligations before imputing income. A payor is intentionally underemployed if they earn less than they are capable of earning having regard for all of the circumstances. In determining whether to impute income on this basis, the court must consider what is reasonable in the circumstances. The factors that the court should consider include the age, education, experience, skills and health of the party, the party's past earning history and the amount of income that the party could reasonably earn if they worked to capacity;
c. There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their dependants;
d. The court will not excuse a party from their support obligations or reduce these obligations where the party has persisted in un-remunerative employment, or where they have pursued unrealistic or unproductive career aspirations. A self-induced reduction of income is not a basis upon which to avoid or reduce support payments;
e. If a party chooses to pursue self-employment, the court will examine whether this choice was a reasonable one in all of the circumstances, and may impute an income if it determines that the decision was not appropriate having regard for the party's support obligations;
f. Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them; and,
g. The amount of income that the court imputes to a party is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some basis in the evidence for the amount that the court has chosen to impute.
[38] The Respondent admits to voluntarily ceasing his employment with the Ford Motor Company because he saw it as an opportunity to leave and commence his own business. The Respondent was employed as an electrician with Ford earning a significant income with benefits and a pension. He chose to terminate that employment at November, 2011 to commence his own business as an electrician for hire. The Respondent has produced virtually no evidence of his income since November, 2011 and/or efforts to generate income since that time. The Respondent admits that he made no applications for employment and provided no other evidence of attempts to find employment or to retrain following November, 2011.
[39] The Respondent failed to provide financial disclosure with respect to his income from November, 2011 when he ceased employment with Ford forward. The Respondent’s evidence was that he effectively had no income or minimal income from November, 2011 forward yet he claimed annual expenses of $43,957.44. The Respondent admitted he paid the mortgage and property taxes totalling approximately $1,691.91 monthly, that he paid Ms. Keddy’s VISA account and was able to guarantee a loan for Ms. Keddy’s son to attend college. How is this possible where the Respondent alleges no income? The only evidence from the Respondent was that Ms. Keddy lost her job at the end of 2010 and that he was responsible for her support and that of her 2 children. All of this is contrary to the Respondent’s submission that he makes no or little income. In the absence of material financial disclosure respecting the Respondent’s income and that of Ms. Keddy, I draw a negative inference that the Respondent’s claim of minimal income would not be supported had he made the necessary financial disclosure.
[40] The Respondent effectively states he has no income since November, 2011 and on this basis he stopped paying child and spousal support from January, 2012 forward. Based on a reduced income for 2010 and no income since November, 2011 the Respondent submits his spousal support obligation should be terminated at November 1, 2010.
[41] The Applicant requests that the $750.00 spousal support pursuant to the 2004 Langdon Order continue indefinitely and that the Respondent continue to pay Guideline child support for Matthew.
[42] Neither the Applicant nor the Respondent in her/his respective pleadings sought to adjust spousal support retroactively (i.e. prior to November 1, 2010). Neither party prior to the Respondent’s original Motion to Change issued March 28, 2011 sought to change the 2004 Langdon Order. However, based on the evidence before me I am satisfied that a variation to the 2004 Langdon Order should be made from 2010 forward given that the Respondent had a significant reduction in his income for that year and based on the events surrounding the Respondent’s leaving his employ with Ford in 2011.
[43] Accordingly, I find that I am left to determine what the appropriate child and spousal support obligations should be from January 1, 2010 forward.
[44] I have the Respondent’s income for 2010 and there is nothing before to suggest that I should not accept that figure as accurate, namely $55,604.00.
[45] I have no difficulty in finding that the Respondent is intentionally under-employed from November, 2011 forward. It was not reasonable for the Respondent to have chosen to cease his long term, apparently secure and well paying job as an electrician with Ford to pursue what appears to be minimal self-employment income as an electrician for hire where he knew he had ongoing support obligations for the Applicant and children. To allow the Respondent to avoid or even reduce his support obligations in circumstances such as these would be an open invitation for any payor to follow through with the frequently heard threat to quit existing employment to thwart a support claim. Having said this, I am not required to and am not attempting to make any finding of bad faith by the Respondent. I am simply stating that he made the choice to reduce his income and in my view this was not a reasonable decision whose negative financial consequences should be foisted upon the Applicant and children.
[46] I am persuaded by the evidence and lack of it that the Respondent is intentionally under-employed and that his under-employment is not required by virtue of the needs of a child of the marriage or any child under the age of majority.
[47] Given the Respondent voluntarily ceased his employ with Ford, the income to be imputed to the Respondent for 2011 forward should be based on what he could have earned had he remained with Ford. The Respondent’s income for 2011 extrapolating for total income had he remained working at Ford to the end of 2011 was $81,332.00. Given there are some uncertainties in such extrapolations (i.e. availability of overtime etc.), I am prepared to round this imputed income figure down to $80,000.00, which is in keeping with past earnings. The Respondent’s support obligations for 2011 and forward will be based on this income figure.
[48] I find no evidence to impute an income to the Applicant.
[49] The Applicant was not employed following the birth of the children. Immediately following separation the Applicant retrained to be qualified as medical/laboratory technician. She retrained while working full-time to support herself and the children and while caring for the children who remained resident with her. The Applicant found work in her field once her training was completed and she has continued her employment with the same employer while providing the primary care for the children. The Applicant works extra hours in different locations when available and has otherwise pursued full-time hours with her current employer and other potential employers.
[50] The Respondent filed bank account summaries he prepared respecting what he alleges the Applicant spent money on (see Exhibit #1). The Respondent states these summaries arise from his analysis of the Applicant’s banking records. The Respondent broke these transactions into categories such as department store, meals outside the home, hair care and beauty, alcohol etc. He submitted that his analysis suggested the Applicant spent $4,867.34 annually on clothing, $2,688.99 annually on meals outside the home, $2,933.66 annually on hair care/beauty, $2,682.88 on alcohol annually. The Respondent acknowledged that he had no direct evidence to support these figures beyond his own interpretations of and extrapolations from the Applicant’s banking records. However, the Respondent submitted his summaries raised suspicions of erratic spending and demonstrate the Applicant is not suffering financial “hardship”. I do note that these summaries/totals were put to the Applicant who was unable to confirm their accuracy.
[51] I take the Respondent’s suggestion that the Applicant is not suffering financial hardship to mean that the Respondent submits the Applicant has no entitlement or need of ongoing spousal support. I do not agree with his view on entitlement and need. Entitlement can be compensatory (i.e. to address financial disadvantage such as in this case where the Applicant was home with children during the marriage and provided primary care for children post-separation) and/or non-compensatory based (i.e. as in this case need relative to marital standard looking to such things as length of marriage, drop in living standard post separation, any other economic hardship etc.).
[52] I find that the Applicant has both compensatory and non-compensatory entitlement of and need for spousal support. The Applicant has been forced to deplete capital (i.e. sale of residence and withdrawal of all R.R.S.P.’s) and rely on credit/loans from family and friends to meet her daily needs. I am not persuaded that the Applicant is spending erratically as suggested by the Respondent. His mere suspicions, based on unsubstantiated summaries/extrapolations of the Applicant’s bank records, is insufficient. The Applicant despite her reasonable efforts is unable to meet her daily needs and is entitled to spousal support from the Respondent subject to his ability to pay.
[53] The next consideration is what income figure should be assigned to the Applicant. In my view the Applicant has made all reasonable efforts to have and obtain employment. The Applicant is earning what she is capable of earning having regard for all of the circumstances. Accordingly, I accept that the income she has confirmed through her testimony and documentation referenced above, namely 2010 income of $28,462.00, 2011 of $26,626.00 and 2012 of $31,603.76.
[54] In their respective pleadings, both parties sought to terminate the Respondent’s obligation to pay child support respecting Calvin Meissner effective December 1, 2011. That was the only relief either party sought with respect to child support for Calvin.
[55] At trial, the Respondent testified that Calvin had, to the best of his recollection, resided with him at January, February, mid-August to mid-December, 2009. On this basis, the Respondent seeks to adjust child support for 2009.
[56] The Respondent also notes that Calvin was subject to a probation order dated October 14, 2010 prohibiting Calvin from residing with the Applicant such that the Respondent submits child support for Calvin should terminate at October 14, 2010. However, the Respondent also testified that Calvin returned to the Applicant’s residence shortly after this date.
[57] Both parties, while each was represented by counsel, consented to the 2012 Langdon Order terminating child support respecting Calvin Meissner effective December 1, 2011. This term of the 2012 Langdon Order was final. There was no provision permitting either party to further argue a different date for the termination of support for Calvin (i.e. the 2012 Langdon Order did not include a term stating that order was “without prejudice” to either party arguing a different termination date) or to argue any retroactive adjustment to the support historically paid for Calvin. Again, neither party sought such retroactive adjustment to Calvin’s child support in their respective pleadings and no amendment seeking this relief was sought at trial. As such, I do not consider the Respondent’s request to vary child support payments he made for Calvin in 2009 or to adjust the date to terminate such support back to October 14, 2010 were properly before me as issues to determine at this trial.
[58] Regardless of the above, it is clear that Calvin has so far in his young life been unsettled in terms of his general life direction and residence. However, the evidence before me was equally clear that the Applicant throughout maintained a residence for Calvin and was his primary residence subject to brief, intermittent periods when he stayed with the Respondent or lived outside of both parties’ residence. The Applicant’s testimony is that she still maintains a residence for Calvin to return to. Based on the evidence before me, had this issue properly been before me at trial then I would have found that Calvin’s primary residence continued to be the Applicant’s home at all material times such that support should be payable for Calvin up to the December 1, 2011 termination date set forth in the 2012 Langdon Order.
[59] Given the above, support for Calvin Meissner shall remain terminated effective December 1, 2011 per the 2012 Langdon Order. I will not make any order to make any retroactive adjustment to the support historically paid for Calvin save and except to adjust the amount payable from January 1, 2010 forward based on the Respondent’s income.
[60] The Respondent has not challenged his ongoing obligation to support Matthew Meissner and there was no evidence before me whatsoever to cease that support. As such, the Respondent shall continue to pay basic monthly child support respecting Matthew.
[61] The final child support issue to be addressed is contribution to section 7. expenses.
[62] As noted above, the 2004 Langdon Order did not require the Respondent to contribute to section 7. special/extraordinary expenses.
[63] The Applicant seeks contribution to the dental bills for Calvin and Matthew. In support of this claim she submitted a Statement from Dr. Cohen covering the period from January 1, 2010 to May 23, 2012. The Statement notes entries for the Applicant’s dental work as well. The Statement notes various insurance payments, which I presume were paid through the Respondent’s benefit plan while he was employed with Ford. The Statement notes a total balance owing of $988.00. I am unable to determine from the Statement and/or the evidence at trial what part of the $988.00 balance owing is attributable to the children versus the Applicant. I am also unable to determine what part of this outstanding balance relates to regular care versus orthodontics or other significant work that would properly be defined as a section 7. expense. Without such clarity, I am not prepared to make any order requiring the Respondent to contribute to the dental expense claimed.
[64] The Applicant also seeks contribution towards a grade 8 school trip to Quebec for Matthew and a YMCA camp in 2010 (Camp Wanakita). The Respondent states that no request was made of him to contribute to the YMCA camp but that he did contribute to the Quebec trip, although he could not recall the amount or provide any proof of such contribution. The Applicant in her testimony confirmed she did not ask the Respondent to contribute to either of these expenses until she filed her original Response in 2011 to the Respondent’s original Motion to Change.
[65] In the circumstances here where there was no order requiring the Respondent to contribute to the section 7. expenses and where the Applicant did not make any request for contribution, I am not prepared to now go back and require the Respondent to contribute to either expense. It seems to me that in the absence of any order requiring the Respondent to contribute, at the very least, some timely request should have been made seeking contribution rather than amassing expenses as time carries on in extended litigation such as this asking for a global contribution at trial.
[66] I am prepared to make an order requiring the Respondent to contribute his proportionate share to all ongoing section 7. special/extraordinary expenses for Matthew within 14 days of the Applicant providing the Respondent with a copy of the receipt or other confirmation of the expense/payment she seeks contribution towards.
[67] Lastly, the Applicant sought an order that the Respondent pay $70,000.00 into the court account as security for his support obligations. During the trial, the Applicant also sought a charging order against the Respondent’s residence as security for his support obligations, although this was not pleaded and no amendment was sought to add this to her pleadings. As such, I do not consider the Applicant’s request for a charging order to be properly before me as an issue to determine at this trial.
[68] I have noted above that the Respondent unilaterally ceased all support payments since December, 2011 following his leaving employ with Ford. However, the evidence before me was that the Respondent did make his support payments pursuant to the 2004 Langdon Order up to and including December, 2011. There is no evidence before me that the Respondent is a threat to leave the jurisdiction, that the Respondent has dissipated assets or has arranged his affairs to insulate himself from any support order this court has or will make (i.e. the Respondent’s business is not incorporated or otherwise crafted to shield his income and he remains a joint title holder to his residence with Ms. Keddy). There will be arrears of support arising from the order I will make on this trial but some adjustment to such arrears will favour the Respondent due to his lower income for 2010 and Calvin no longer being entitled to support from December 1, 2011 forward (i.e. arrears calculated on the basis of the 2004 Langdon Order will be overstated).
[69] Based on all of the above, I am not prepared to order the Respondent to make any payment into the court account as security for his support obligations. Had the issue properly been before me I would not have been satisfied that the evidence before me warranted a charging order (see Kumar v. Kumar, [1988] 63 O.R. (2d) 572 and Riel v. Holland, [2002] O.J. No. 5609). This order is without prejudice to the Applicant seeking such an order in the future should the Respondent default on his support obligations and circumstances otherwise warrant the making of such an order.
[70] Commencing January 1, 2010 and each 1st of the month up to and including December 1, 2010, the Respondent shall pay the Guideline Table amount of $836.00 monthly for two children based on his 2010 income of $55,604.00. The Spousal Support Advisory Guidelines (“SSAG”) provide a range of spousal support of $00.00 to $138.00 monthly where the Respondent earns $55,604.00 paying child support of $836.00 monthly and the Applicant’s annual income is $28,462. I am not prepared to order any spousal support payable during this period based on the SSAG. The Respondent simply lacks the ability to pay.
[71] Commencing January 1, 2011 and each 1st of the month up to and including November 1, 2011, the Respondent shall pay the Guideline Table amount of $1,159.00 monthly for two children based on his 2011 imputed income of $80,000.00. The SSAG provide a range of spousal support of $416.00 to $1,028.00 monthly where the Respondent earns $80,000.00 paying child support of $1,159.00 monthly and the Applicant’s annual income is $26,626.00. I am prepared to order spousal support payable at the mid range in the amount of $724.00 monthly during this period based on the SSAG.
[72] For the month of December, 2011, the Respondent shall pay the Guideline Table amount of $719.00 monthly for one child (Matthew) based on his imputed income of $80,000.00. The SSAG provide a range of spousal support of $552.00 to $1,206.00 monthly where the Respondent earns $80,000.00 paying child support of $719.00 monthly and the Applicant’s annual income is $26,626.00. Given that the Applicant only sought an order that the Respondent’s existing spousal support obligations of $750.00 monthly continue indefinitely (i.e. she did not plead seeking an upward adjustment pursuant to the SSAG), I am prepared to order spousal support payable in the amount of $750.00 monthly during this period noting that the mid range is $889.00 based on the SSAG.
[73] Commencing January 1, 2012 and each 1st of the month thereafter, the Respondent shall pay the Guideline Table amount of $719.00 monthly for one child (Matthew) based on his imputed income of $80,000.00. The SSAG provide a range of spousal support of $412.00 to $1,060.00 monthly where the Respondent earns $80,000.00 paying child support of $719.00 monthly and the Applicant’s annual income is $31,604.00. Given that the Applicant only sought an order that the Respondent’s existing spousal support obligations of $750.00 monthly continue indefinitely (i.e. she did not plead seeking an upward adjustment pursuant to the SSAG), I am prepared to order spousal support payable in the amount of $750.00 monthly during this period noting that the mid range is $761.00 based on the SSAG.
[74] Before leaving the issue of spousal support, I note that the parties separated at April, 2002 and the SSAGs suggest a range of payments from 6.5 years to 14 years. At the date of trial, the parties had been separated and the Respondent paying support for approximately 10 years. While I am not prepared to set a fixed date for spousal support to terminate, it is my view that the Applicant must be prepared for the Respondent’s support obligation to terminate in the foreseeable future based on the circumstances as I know them presently. As such, I am making an order that spousal support may be reviewed by either party (i.e. thereby not requiring any material change) on or after January 1, 2016.
[75] For as long as child and/or spousal support is payable, the Applicant and the Respondent must provide income disclosure, including complete copies of Income Tax Return with all attachments and related Notice of Assessment/Re-Assessment for the preceding taxation year, to the other party annually by June 30th in accordance with section 24.1 of the Child Support Guidelines
[76] S.D.O. to issue further to the above.
[77] Unless this support order is withdrawn from the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed. A support deduction order will be issued
[78] The Respondent shall provide to the Applicant and the Director of the Family Responsibility Office notification of any change in address or employment, including full particulars about the change, within ten (10) days of the change taking place
[79] The Applicant shall prepare the Final Order based on this endorsement.
[80] If the parties are unable to resolve the issue of costs then I will accept brief written submissions on costs not exceeding 3 pages exclusive of relevant Offers to Settle and Bill of Costs. Both parties shall have 30 days from the date of this decision to submit any submissions for costs.
[81] This order bears interest at the post-judgment interest rate set out in the Courts of Justice Act of 3% per year effective from the date of this order. A payment in default bears interest only from the date of default.
Fitzpatrick J.
Released: September 6, 2013
COURT FILE NO.: 25462/03
DATE: 2013-09-06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Patricia Meissner Applicant
– and –
Bertram Meissner Respondent
REASONS FOR JUDGMENT
FITZPATRICK J.
Released: September 6, 2013