ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-10-2356-00
DATE: 20130327
B E T W E E N:
LESLEY LAURAIN
Catherine Hibberd, for the Applicant
Applicant
- and -
BRIAN CLARKE
Self-represented
Respondent
HEARD: January 17, 18, and 21, 2013
REASONS FOR JUDGMENT
Mossip J.
Background
[1] The parties cohabited for 14 years in a common law relationship commencing April, 1994. They separated on October 29, 2008.
[2] The applicant, Lesley Laurain, (“Lesley”) was born August 18, 1963 and is currently 49 years old.
[3] The Respondent, Brian Clarke, (“Brian”), was born January 19, 1961 and is currently 52 years old.
[4] There are two children of the relationship, namely, Brigitte Samantha Clarke, born March 22, 1999, and Caleb Adam Clarke, born May 29, 2001. Both children live with Lesley, and have done so since the date of separation.
[5] Lesley has been out of the full-time work force since 2001. Brian has been the primary wage-earner since that date. His income from employment has varied and will be discussed below. In addition to employment income, Brian receives a tax-free annuity from his mother’s estate in the sum of $22,396.32.
Relevant Prior Court Orders
[6] An application was originally commenced in the Ontario Court of Justice by Brian; that action was stayed and Lesley commenced this action in June, 2010.
[7] A case conference was held on August 30, 2010, and a consent order was entered into dealing with the issue of support. There was no financial information from Brian at this case conference. The child support was the Guideline Support payable based on a gross income of $130,000 per annum. The relevant parts of the Order of Gray J. were:
(1) Child support for the two children in the amount of $1,760 per month commencing September 1, 2010;
(2) Spousal support in the amount of $2,000 per month commencing September 1, 2010;
(3) The issue of retroactive child and spousal support to be dealt with on motion prior to trial or at trial. The order was made on a without prejudice basis;
(4) The children were to continue to be named as beneficiaries on Brian’s extended healthcare plan;
(5) Lesley was to be reinstated as the named beneficiary under Brian’s life insurance policy through his employment and she was to remain as the irrevocable beneficiary of such policy until further written agreement or court order.
[8] A motion was heard before Price J. on May 11, 2011; the decision was released December 2, 2011. Price J. found that on the best evidence before him, there had been no material change in circumstances of any significance to warrant a variation of the support order of Gray J., which was based on an annual income of $130,000 for Brian.
[9] The relevant parts of Price, J.’s order were:
(1) Brain was to pay retroactive child support in the amount of $1,760 per month from November 1, 2008 to August 1, 2010;
(2) Brian was to pay retroactive and on-going s. 7 expenses from November 1, 2008 being 96% of the following amounts:
a) 2009: $1,064.60 + $5,091.96 = $6,156.56
b) 2010: $1,664.47 + $5,091.96 = $6,756.43
c) 2011: $ 140.00 + $424.33 = $564.33 per month
d) 2012 and following: $564.33 per month
(3) Brian was to pay retroactive spousal support in the amount of $2000 per month from June 1, 2010 to August 1, 2010
(4) The retroactive support including s. 7 expenses was all made without prejudice to the parties’ right to seek adjustment of the amounts and duration of such payments at trial;
(5) The support in the consent order of Gray J. was to continue, without prejudice to the parties’ right to seek adjustments of the amounts and duration of such support at trial.
[10] It is not disputed that as a result of the above retroactive award, Brian was required to pay immediately $38,720 on account of retroactive child support; $21,942.27 on account of retroactive s. 7 expenses; and $6,000 on account of retroactive spousal support for a total owing of $66,662.27.
[11] There was no credit set out in the endorsement, deducting from these arrears, the acknowledged voluntary support amounts paid by Brian to Lesley, or for his ½ share of the joint investment that Lesley took. Instead, Price J. deducted these amounts from a “deficit” he said Lesley incurred. This “deficit” was based on the difference between her expenses and her income set out in her sworn financial statement.
[12] Lesley, through her counsel, acknowledged before me that the above “deficit” was not an appropriate calculation, and that Brian was entitled to the above credits against the retroactive support order. At my request, counsel prepared calculations of support arrears based on various income scenarios, crediting Brian with the above amounts. I will deal with these calculations below.
[13] The issues of custody and access of the children, as well as their continued coverage on Brian’s health and dental plans, were resolved on a final basis by way of a consent order dated December 12, 2012. The terms of this order provided that Lesley has sole custody of the children; Brian is to have reasonable access on reasonable notice, in the discretion of Lesley.
[14] Brian initially exercised access to the children. He currently is not exercising access to the children.
1. Issues for Trial
[15] I advised the parties at the outset that, from my perspective, this was primarily a math exercise;
(a) If the without prejudice support orders are to be adjusted, what is the amount of support arrears owing once any adjustment is made and the proper credits are given to Brian against the support found to be owing?
(b) What is the determination of the miscellaneous financial claims made by either party against the other?
[16] The legal issues for me to decide are:
(1) Should Brian have an income imputed to him, and if so, how much?
(2) Should any of the without prejudice support orders be adjusted?
(3) Should Brian receive a credit for the inheritance he used to pay off the joint mortgage on the jointly owned home?
2. Legal Issues Raised by Brian at Opening of Trial
[17] At the opening of trial Brian orally sought to amend his pleading to request the following:
(1) Occupation Rent from the date of separation to the date of trial for Lesley’s use of his half of the family residence;
(2) A resulting trust in the jointly held GIC investment.
[18] I dismissed Brian’s request and gave brief oral reasons at that time. I will set out a summary of those reasons and elaborate on them so the parties have them as part of this Judgment.
[19] With respect to the claim for occupation rent, by order dated May 2, 2012, van Rensburg, J. ordered, on consent, that Brian had 30 days to file his Answer and that the amendment to his Answer to claim occupation rent would be addressed at a Trial Management Conference if Brian wished to pursue such a claim. No further request was made by Brian as reflected in any subsequent endorsement or order of the court. The Answer that was filed by Brian after the May 2, 2012 order, did not seek occupation rent. Further, Lesley’s counsel advised the court, that she was assured by Brian’s counsel, when he was represented at a Trial Management Conference following this order, that Brian was not seeking occupation rent. Although Brian told me he did not always agree with his lawyer, he is bound by his lawyer’s statement to opposing counsel, unless he specifically told counsel otherwise. Opposing counsel cannot check with a litigant represented by counsel, to determine if they agree with what their lawyer has said.
[20] Brian stated that he made the claim for occupation rent in his latest Trial Management Brief, however the issue was never pursued at the Trial Management Conference, nor did Brian seek to amend his actual pleading. He also mentioned occupation rent in his Affidavit filed as his Evidence-in-Chief for the trial, but again he took no steps to amend his pleading to claim this relief as he was ordered to do.
[21] It is to be noted that Brian did not rely on any expert evidence as to the rental value of the house in his affidavit. He did not come to trial with any expert evidence that I was made aware of, setting out what evidence he was going to rely on to make this claim at the trial that was about to commence.
[22] As I said when I refused this amendment, it was far too late to assert such a claim, particularly when Brian had been given the opportunity to do so and had not taken any of the steps that are necessary to assert this claim, and had in fact, through counsel, assured opposing counsel he was not making such a claim.
[23] With respect to the resulting trust claim to Lesley’s half of the jointly held GIC, this was also a last minute claim that Brian raised, with no written material. Lesley had not responded to any pleading setting out such a claim, had not had an opportunity to question Brian on this claim, nor indeed had an opportunity to request any evidence from Brian to support this claim. Lesley relied on Brian’s pleading, his Answer, wherein he stated at para. 50(e):
The Applicant to repay to the Respondent from her share of the net proceeds, the following:
(i) The sum of $45,000 being the amount owing by him to her for appropriating his one half interest in a joint GIC investment.
[24] Lesley fully acknowledges that Brian is entitled to an accounting of the money she took from the jointly held GIC and that one-half of that GIC belonged to him.
[25] Pleadings in family law, like in all civil law, have to mean something. A litigant cannot simply stand up the morning of trial and fundamentally change the nature of their claim, having given no prior written notice, or evidentiary foundation to do so.
[26] The prejudice to Lesley to allow either of these amendments could not possibly be compensated for in costs.
[27] The possibility of an adjournment of the trial was not raised by either party as the matter had been ordered to be heard at the January, 2013 Trial Blitz. Both parties wanted the trial to proceed to achieve financial finality.
(continued exactly as in the source text through to the end of the judgment)
Mossip J.
Released: March 27, 2013
COURT FILE NO.: FS-10-2356-00
DATE: 20130327
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
LESLEY LAURAIN
- and –
BRIAN CLARKE
REASONS FOR JUDGMENT
Mossip J.
Released: March 27, 2013
SCHEDULE “A’
TABLE 2
RESPONDENT’S INCOME TO DATE OF CONSENT ORDER (With 2011 and 2012 imputed on $130,000.00)
YEAR
RESPONDENT’S INCOME
APPLICANT’S INCOME
CHILD SUPPORT
SSAG MID RANGE
Totals
2008
$132,606.00
$1,510.00
$1,790.00
$2,445.00
$ 8,470.00
2009
$100,187.00
$3,096.00
$1,406.00
$1,534.00
$35,280.00
2010
$129,789.00
$1,873.00
$1,758.00
$2,324.00
$48,984.00
2011
$130,000.00 (imputed income)
$5,256.00
$1,760.00
$2,191.00
$47,412.00
2012
$130,000.00 (imputed) See TAB 8(A) of Trial Opening
$9,596.00
$1,781.00
$2,005.00
$45,432.00
Total
$185,578
SCHEDULE “B’
In summary, I have paid the following amounts since separation:
Property Taxes:
2012
$3,925.78
2011
$3,823.98
2010
$3,717.31
2009
$3,660.79
House Insurance
2012
$ 970.92
2011
$1,040.04
2010
$ 903.96
2009
$ 722.52
Roof Repair
$6,638.75
Contractor Ant Exterminator
$ 490.00
Furnace Repair – Motor
$ 678.00
Appliance Washer repair
$ 135.79
Grass/Sod/Earth
$ 528.84
$ 259.90
$ 291.54
Exterior Leak
$1,312.50
Kitchen Back splash
$ 450.00
Repair to Cinder Block
$3,361.75
Mortgage discharge fee
$ 270.00
Property search fee
$ 100.00
Estimate of general repairs
$1,000.00
Contractor for mould/damp
$1,472.02
I have incurred costs in the sum of $35,754, and I am seeking an order that the Respondent should be responsible for one half of these expenses being $17,877.19.