COURT FILE NO.: FS-12-23

DATE: 2014-01-06

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

T.L.

Self-Represented

Applicant

- and -

J.L.

Self-Represented

Respondent

HEARD: December 10, 11, 12, 18, February 6 and May 29, 2013 in Cayuga

The Honourable Madam Justice J.A. Milanetti

REASONS FOR JUDGMENT

[1] I was asked at the trial of this action to determine a number of issues between these two self-represented individuals.

[2] T.L. filed this application on February 28, 2012, seeking a divorce. I understand that another application was commenced in 2009 but that it had been withdrawn.

[3] The endorsement of Justice Pazaratz dated September 7, 2012, indicates that the parties have agreed that “all issues – including any issues of retroactivity or allegations which may have arisen during the currency of the 2009 action – will remain alive to be dealt with within this 2012 action”. As such, I am required to deal with all issues between the parties, including child and spousal support (both ongoing and retroactive), custody of N., and equalization. I was provided no explanation as to the hiatus between the 2009 action and the commencement of this application. (Apart from Justice Pazaratz’s endorsement).

[4] T.L. seeks a divorce. J.L. indicates that she is opposed to this relief for religious reasons. However, given their separation in March of 2009 and non-resumption of cohabitation since, I find that divorce is a proper remedy. A divorce shall issue.

[5] In addition, for the reasons outlined below I make the following findings:

a) T.L. will pay to J.L. $1,756 per month for child support for J.1, J.2 and N., which includes the set-off amount of J.L.’s obligation for N., commencing December 1, 2013;

b) Additionally, Mr. and J.L. shall pay 2/3 of any expenses not covered by OSAP on a pro rata basis. That is, T.L. shall pay 75% of the 2/3 parental contribution; J.L. 25%. These expenses shall include tuition, books, school fees, and parking, for each year in which J.1 is in full-time attendance at a post-secondary institution;

c) T.L. will pay to J.L. $29,960.25 for the equalization of the family property;

d) T.L. will pay to J.L. $1,142 per month for spousal support, commencing December 1, 2013;

e) T.L. will pay to J.L. $19,550 for retroactive child support; and

f) T.L. will pay to J.L. $6,919 for retroactive spousal support.

g) The parties shall engage the services of a communications counsellor to assist them in better dealing with communication relating to their children. Such shall be funded through T.L.’s benefits. Any expense not covered shall be shared equally.

h) T.L. shall obtain a policy of Life Insurance having a face value of $200,000 and naming J.L. as a beneficiary as a means of securing the support obligations payable by him.

BACKGROUND:

Trial History

[6] I heard three days of evidence in December 2012. The matter was then adjourned both to January for a mid-trial conference and to February for the continuation of the trial, as T.L., an Ontario Provincial Police Officer, failed to provide a valuation of his pension. When we met again in February I learned that the valuation was still unavailable. As a result, the trial proper was put over until May 29, 2013, for completion.

Background Facts

[7] T.L. and J.L. were married November 26, 1994, and separated on March 3, 2009. As such, they were married 14 ½ years. When they began seeing one another, J.L. had two children from a prior relationship – C. (born […], 1991) and J.1 (born […], 1993). When she became pregnant with J.2 (born […], 1994), the couple decided to marry. T.L. legally adopted both C. and J.1 in 1996 and has stood as their father ever since. The couple went on to have a fourth child – N. (born […], 1999).

[8] C. is no longer a child of the marriage as he lives on his own and is employed full-time. J.1 and J.2 live primarily with their mother, and N. enjoys joint custody with each of his parents with bi-weekly changes in residence. While this latter situation has been working quite well, each of the parties sought sole custody of N. at trial.

[9] The history of this family is both touching and terribly troubling. As very young adults the parties met and decided to marry. J.L. described her role as helping T.L. to achieve his goal of going to college and becoming a police officer for the benefit of the family. J.L.’s dream had been to become a teacher, but it was agreed that her schooling would wait until after the children had grown up and did not need her undivided attention. J.L. said they had agreed that she should stay home and raise the children while T.L. pursued his career.

[10] J.L. initially obtained part-time work in September 2004. She began working nights (10 p.m. to 7 a.m.) at C[…] in Jarvis when T.L. first moved out of the home for one month. She said she took this job to alleviate the stress in the marriage resulting from the debt load.

[11] By the summer of 2005, the parties were out of serious debt and J.L. wanted to quit, but they decided to enroll J.2 and N. in private school at Jarvis Christian District at a cost of $10,000 per year. J.L. thus continued working to help with this expense. Apparently J.2 excelled there because there were smaller classes, an independent education plan, and the teachers worked hard to help him deal with “overwhelm”.

[12] T.L. moved out once again in October 2007. J.L. said she found it hard to hold down the home with four kids, a job, and the stress of a marital breakdown. Thus, she went on stress leave and was then laid off in April 2008. It was at this point she decided she should work on herself. She got her high school diploma, apparently graduating with honours in June 2008.

[13] It was J.L.’s position that T.L. moved back home in June 2008, saying he could not afford to support her so they should get back together. When she refused, J.L. was persuaded by her pastor that it would be a sin not to agree to let him come back, so she gave in. J.L. describes this as the best summer in a long time, with the kids being happy and in established routines.

[14] In September 2008, J.L. applied for and got accepted into M[…] College’s Child and Youth Service program (funded by Employment Insurance (EI)). She commenced school in January 2009. It was her position that by February 2009, T.L. told her that she should not continue going to school and that if she chose to continue there would be consequences.

[15] T.L. does not recall saying anything like this. In fact, he said he encouraged her to go to school. It is clear J.L. sees this “threat” as related to her removal from their home in March 2009. While certainly quite coincidental in timing, I cannot say whose version of events is accurate.

[16] What is clear is that something happened to precipitate J.L.’s arrest and ultimate removal from the family home in March of 2009. T.L. had J.L. charged with assault. She alleges this was because she elbowed him. This was not refuted. Regardless, I understand that the charges were withdrawn and a peace bond was entered into.

[17] Sadly, the arrest occurred in front of the children. They saw their mother taken away by the police, the very force their father worked for. The kids remained with their father from March 3 to April 2009.

[18] In April, J.L. levied complaints against T.L. to the Children’s Aid Society (CAS). Given the difficulties with each of the parents, J.2 and N. were placed in CAS care for a time. From April to July 2009, the two eldest children were in the care of J.L.’s sister and the two youngest were with T.L..

[19] On July 30, 2009, Justice Thibodeau made a temporary care and custody order placing C. and J.1 in the care of J.L. and N. and J.2 in the care of T.L..

[20] By October 2009 all four children were residing with J.L., with N. spending equal time between his parents on a week about basis.

[21] In May 2011, T.L. approached J.L. and asked if she would like to move into the matrimonial home where he had been living from the separation in March 2009 forward. J.L. then moved into the home with C., J.1, J.2, and N. (on a week about basis).

[22] J.L. did not complete her EI funded program at M[…] College. She dropped out in April 2010 after having completed one and a half years of her three year program. As a result, she still has six credits and two semester placements to complete.

[23] I heard of numerous arguments and J.L. being told she had a “Jezebel spirit”. As this had been a highly religious couple, there is a significant overlay of “unchristian like behavior”, “sinning”, and “consequences from God”. J.L. maintains that such arguments frightened the children, J.2 in particular.

[24] It is clear to me that the mood and environment in that home for some time pre and certainly post-separation in March 2009, was quite toxic both to the couple and consequently to their children. These children not only bore witness to the breakdown of their parents’ marriage, but were profoundly caught up in the crossfire. Both the arrest and CAS involvement, which caused the kids to be shuttled first between parents and then to be taken away from both for a time, could necessarily be expected to have significant long-term consequences for these boys.

CUSTODY AND CHILD SUPPORT:

[25] As indicated previously, the L.’s have four children. C. lives on his own, J.1 and J.2 live primarily with their mother, and N. enjoys shared time with each of his parents with week about changes in residence. While the latter situation has been working quite well, each of the parties seek sole custody and decision making power for N..

[26] J.L. seeks child support for N. (with a set-off for her support obligation to T.L. for the time N. is in his care), as well as for J.2, who she claims is unable to be self-sufficient due to his mental health issues. Furthermore, J.L. seeks support for J.1 while he is attending post-secondary school, including $200 per month (she asked for each of $200 and $300 at various points in time) support for the months he is in school, as well as 1/2 of the cost of his tuition, books, school fees and transportation expenses. (She also sought 1/3 at another point).

[27] Retroactivity is also a live issue and will be discussed separately below.

N.

[28] Given N.’ age (born […], 1999) and his ability to vote with his feet, I find that a change to sole custody with either parent is unnecessary. Shared parenting appears to be working well thus far. The parties will need to sort out a way to discuss major decisions regarding N.. They will need to hire a facilitator if need be. If the custody dispute is a monetary issue, each of the parents shall declare N. as a dependant for child tax purposes in alternate years, with J.L. claiming in even years and T.L. in odd years.

[29] T.L. asks that the only adjustment made to the shared parenting arrangement be related to the two night shifts he works. Traditionally, J.L. takes N. those extra nights. T.L. suggests that both he and N. feel he should stay on his own at T.L.’s home. I do not agree that this is a sensible solution. I prefer that Nicolas not be left on his own given the availability of his mother. The status quo vis-à-vis those two nights shall remain.

J.1

[30] J.1 was born on […], 1993. I am asked to decide the appropriate level of support for J.1 given his period of full-time work and his current full-time post-secondary education status.

[31] After completing high school J.1 worked full-time from May to December 2012 at C[…]. I learned that J.1 earned approximately $20,000 from this stint of employment. He has continued to live with his mother throughout.

[32] J.1 went on to commence full-time studies at M[…]College in January 2013. He has a stated goal of becoming a police officer like his dad.

[33] When we resumed trial in May 2013, I learned that J.1 was doing well. He had passed all six of his courses and was set to attend semester two in September 2013. This was to involve one to two courses and a placement. The program involves six semesters in total. J.1 will graduate as a Child and Youth Worker with an Ontario College Advanced Diploma.

[34] J.1 started his summer job the day of the trial, working for four weeks with a farmer with the possibility of weekend jobs here and there afterwards. He was to work 8am to 5pm Monday to Friday, earning $12 per hour.

[35] Currently J.1 pays his own car insurance of $320 per month. His books and instruction costs are $800 per semester. I was initially told that J.1 had an outstanding debt to OSAP. It was not until our re-attendance in May that I learned he had received $1,357 of what appears to be grant money (as opposed to a loan). I heard that T.L. paid part of his parking expense of $172 per semester.

[36] J.1 ceased to be a child of the marriage after February 2012 when he was 18 years old and no longer in school. He was also working full time from May to December 2012. Given his commencement of full-time post-secondary school at M[…] College in January 2013, he regains his status as a child of the marriage for support purposes.

[37] I learned that he lives with his mother at home and commutes to M[…] from there (approximately 50 km one way). As such, support shall be payable for him while attending full-time school over and above his education expenses of approximately $5,000 to $6,000 per year. I understand from Exhibit 16 that those expenses are as follows:

Semester 1 $1858.42

Semester 2 $1636.77

Semester 3 $2,060.00 (approximately)

Semester 4 $2,060.00 (approximately)

Semester 5 $2,300.00 (approximately)

Semester 6 $2,300.00 (approximately)

Plus $800.00 (per semester for books and instructional costs).

[38] T.L. asks why, with his $20,000 C[…] earnings, J.1 was only able to put $500 towards his education expenses. J.L. states that he paid her $300 per month board, and bought a car that she guesses he paid $1,500 to $2,000 for. It is this vehicle that he will use to go to and from school.

[39] T.L. assumes J.1 will get his full entitlement to OSAP for the fall of 2013 as he will only have modest summer earnings.

[40] J.L. makes a claim for half of J.1’s tuition, books, and school fees, as well as half of his gas and car insurance, within 30 days of him providing invoices. She also seeks support for J.1 of either $200 or $300 per month for the months that he is in school, but not during the summer.

[41] T.L. says that he is all for contributing to J.1’s schooling. He suggests that each parent pay 50 percent of any amount not covered by OSAP.

[42] It is my view that J.1 does indeed need to step up. He shall be responsible to pay 1/3 of any expenses not covered by his OSAP loan. That being said, any component of the OSAP funds that are a “grant” shall form part of J.1’s 1/3 responsibility.

[43] The balance of the two-thirds of the educational expenses (over and above the OSAP loan) shall be split between his parents in shares roughly proportionate to their income. I would thus assess T.L. 75 percent responsible for all invoiced expenses and J.L. 25 percent responsible. These expenses include tuition, books, and parking. Over and above that amount, T.L. shall pay child support in relation to J.1 as he continues to live at home with his mother while attending school and during any time off.

J.2

[44] J.2 was born on […], 1994. I heard significant evidence of difficulties with J.2. It is clear that there is a strong difference of opinion as to the root of J.2’s problems. It was T.L.’s view that he has issues related to drug use. It was J.L.’s view that while he did have drug issues, these are layered on top of issues of mental illness that have been evident for much of his young life.

[45] It is clear to me that J.2 has had significant personal problems for most of his life. He did not complete high school, has never held a job, and has never gotten a driver’s licence.

[46] Moreover, I heard about several involuntary admissions to psychiatric units, as well as his ongoing utilization of outpatient psychiatric services. At the initial part of this trial I received a medical letter, filed on consent as Exhibit 9, from Child Psychiatrist Dr. Akintan. Dr. Akintan is both an attending psychiatrist and assistant professor at McMaster University. He indicated that he had been treating J.2 since 2011 on an outpatient basis.

[47] Dr. Akintan’s report does not clearly articulate the cause of J.2’s troubles. It was thus the subject of much debate. The report tells of J.2’s ongoing involvement with the McMaster Mental Health Unit for approximately one year. It states that he “has a diagnosis of psychosis NOS, r/o schizophrenic, r/o substance induced psychosis”. As the doctor was not called in the December portion of the trial, these comments were the subject of much conjecture and speculation.

[48] At the May 29, 2013 attendance in court, Dr. Akintan was called by J.L. to provide evidence about J.2. I qualified him as an expert and allowed him to testify, as I felt it necessary and important to understand the mental health status of this child of the marriage. I ruled however, that the doctor would be confined to the opinions articulated in his report dated December 3, 2012.

[49] Dr. Akintan indicated that J.2 had been admitted twice as an inpatient under his care. J.2 was diagnosed with psychosis “not otherwise specified – NOS”. This is a diagnosis that comes from the Diagnostic and Statistical Manual. At the time of the December 3, 2012 report, neither schizophrenia nor substance abuse had been ruled out.

[50] In cross examination the doctor indicated that by February 2013 he was able to make a conclusive diagnosis of schizophrenia based on the severity of J.2’s symptoms and the length of time that he had impairments. While he agreed that a diagnosis of schizophrenia can be confounded by the use of marijuana, Dr. Akintan indicated that he did not believe that the length and severity of J.2’s symptoms could be accounted for by his marijuana use alone.

[51] The doctor indicated that J.2 was taking the anti-psychotic medication Lanzapene nightly. This drug is used to treat J.2’s psychosis, hallucinations, delusions of grandeur, persecutory behaviour, and schizoid delusions.

[52] It was Dr. Akintan’s opinion that anyone with severe mental problems needs a healthy lifestyle, stability, medical monitoring, and specific absence from marijuana as it exacerbates illness and makes it more difficult to treat. He described J.2 as requiring a close level of support as he transitions to adulthood because he was inconsistent in his medication use. He felt that J.2 would not be compliant with his medications without supervision. Dr. Akintan indicated that non-adherence to medications can result in relapses and hospitalizations, or worse. He describes J.L. as such a support and an effective advocate on J.2’s behalf.

[53] Each of the parents blamed the other for J.2’s drug issues. J.L. describes a meltdown where J.2 was involuntarily hospitalized in February 2011. She blames the fact that she was forced to live in poorer areas with negative role models and no support as the basis for him getting wrapped up in drug issues. T.L. suggests that she is complacent, allows J.2 to use drugs, and does not enforce rules in her home.

[54] Regardless of who and what is to blame for many of J.2’s current problems, it is clear to me from the evidence of Dr. Akintan, together with my own understanding of his failure to meet many typical young adult milestones, that J.2 suffers from mental illness, conceivably complicated by drug use.

[55] The issue for me is the impact such illness has on both spousal and child support. Does J.2’s situation justify J.L. remaining out of the workforce and thus entitle her to spousal support at a higher level? J.L. argues that she is unable to work as it is only through her support and ongoing monitoring that J.2 manages to function better. I have not been convinced that such is the case, as his problems are clearly ongoing. I do not accept that J.L. is unable to return to gainful employment. This family cannot financially sustain her being entirely absent from the workforce and I do not accept that J.2 requires around the clock care from her.

[56] Do J.2’s mental health issues entitle him to ongoing child support despite his chronological age? Based on all of the evidence presented before me, I accept that J.2 continues, as a result of his mental illness, to be a child of the marriage and is therefore eligible for support. I do not see this support as indefinite in nature as J.2 may well qualify for Ontario Disability Support Program (ODSP) based on Dr. Akintan’s evidence. I anticipate that such an application will be made.

[57] J.L. will advise T.L. forthwith of any change in J.2’s income. If after 12 months there is no change in J.2’s income, T.L. will be at liberty to revisit the level of child support payable.

[58] It is my hope that the 12 month timeframe will provide sufficient time for an application to be made, supporting medical documentation obtained, and a response provided by ODSP.

Conclusion on Child Support

[59] Section 15.1 of the Divorce Act, R.S.C. 1985, c. 3, allows the court to make an order requiring a spouse to pay for the support of any or all children of the marriage. Section 2 of the Divorce Act defines ‘child of the marriage’ as “a child of two spouses or former spouses who, at the material time, (a) is under the age of majority and who has not withdrawn from their charge, or (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life”. This definition has been interpreted by the courts to also apply to a child over the age of 18 who is attending a post-secondary educational institution.

[60] I find that N. (by virtue of his age), J.2 (by virtue of his mental illness), and J.1 (by virtue of his full-time attendance at M[…] College), all meet the definition of “child of the marriage” under the Divorce Act.

[61] Section 3 of the Federal Child Support Guidelines, S.O.R./97-175 (“Guidelines”), presumes that the amount of the child support order will be the amount provided for under the Guidelines, in addition to the amount of special or extraordinary expenses, if any, under section 7.

[62] Guideline child support shall thus be payable for J.1 (for so long as he remains a full-time post-secondary student), J.2, and in part for N., commencing December 1, 2013. T.L.’s support for N. shall but set-off against J.L.’s support obligation to N., given their shared care. Support for J.2 may be revisited in 12 months.

[63] It was J.L.’s evidence that she was attempting to return to work at the time of trial. I do not accept that she is currently only capable of working part-time, despite her argument that she is unable to work full-time given J.2’s difficulties. I have not been persuaded that her employment status is the determinative factor in J.2’s well-being. Moreover, this family unit cannot afford her working only part-time, most particularly given the current ages of the children.

[64] Therefore, pursuant to Section 19 of the Guidelines, I would impute to J.L. an income of $20,000, which is approximately commensurate with full-time earnings at minimum wage.

[65] At trial I did not have T.L.’s final earnings for 2012. However, a pay stub was produced dated November 11, 2012 revealing a year-to-date income of $90,470.28. This represents 316 days of the year. I accept J.L.’s approach of pro-rating this amount over 365 days to find T.L.’s total income for 2012. As such, I find that T.L.’s 2012 income for support purposes is $104,498.90.

[66] Child support shall therefore be paid on T.L.’s expected 2012 income of $104,499 and J.L.’s imputed income of $20,000. Based on these incomes, Guideline support for the three children is $1,916, less $160 to reflect J.L.’s contribution to N.’ support. Therefore, at the end of the day, T.L. will pay a net amount of $1,756 in child support per month. This will commence December 1, 2013.

[67] In addition to the Guideline support, T.L. shall contribute 75% to the 2/3 parental share of J.1’s invoiced education expenses (over and above any OSAP loan) while he attends a post-secondary educational institution. This amount will include tuition, books, school fees, and parking, and will be payable 30 days after T.L. receives an invoice indicating the amount.

EQUALIZATION:

[68] The parties purchased their matrimonial home at 8 Hawthorne Crescent in Townsend. They agree that the value of the house at separation was $225,000, with a valuation day mortgage of $181,556.86. As such, the equity at the valuation date was $44,443.14. They additionally agreed to a value of the contents at $5,000, in the absence of any valuations.

[69] The only other assets are T.L.’s $6,413 RRSP and his OPP, pension which was valued at $53,507.70 at the date of separation.

[70] While T.L. explained that the RRSP had been eroded to put into the matrimonial home (and the couple had intended to repay it but only he has), such is irrelevant to the equalization calculation as it is captured in the home equity that is being shared.

[71] I had no sufficient evidence of values of other assets, primarily vehicles. J.L. spoke of the vehicles that each had at separation, but T.L. lists no vehicles on his Financial Statement and neither party provided anything but estimated verbal evidence as to value.

[72] In terms of debts, T.L. listed debts at separation but only provided evidence of indebtedness currently. I am thus in no position to include such debts in the equalization. I have calculated the equalization based on the only evidence I received at trial.

[73] It is J.L.’s intention to remain in the matrimonial home. T.L. has agreed to remain on title until January 2014 only. I understand that she may have difficulty qualifying for a mortgage, but I do not agree that T.L. should remain on title. This couple needs closure. It would not be fair to have him remain on title for the home or for the utilities bills attached thereto. J.L. will need to decide if indeed she can afford to keep the home or if it needs to be sold.

Conclusion on Equalization

[74] At the end of the day I have calculated the equalization owed by T.L. to J.L. to be $29,960.25. The calculation of this sum is attached as Appendix A.

SPOUSAL SUPPORT:

[75] J.L. seeks spousal support, both ongoing and retroactive. The retroactive part of her claim is discussed below.

[76] J.L. argues that given J.2’s special needs, it is helpful for her to be around to provide him support. It is her position that there has been improvement in his situation since she gave up her work to stay home. It is clear from the family history that J.L. has worked periodically throughout the marriage commencing in 2004, albeit largely part-time.

[77] At the time of trial, J.L. was apparently attempting to return to her part-time work at Grandview Group Home. She had worked from April to July 2012 as part-time relief staff and short-term when full-time persons quit before she went off on medical leave. A note was produced as Exhibit 15, which appears to outline some efforts to return to work, albeit unsuccessfully, in November.

[78] By trial in December 2012, J.L. had not been placed as schedules had already been drawn. She hoped to be back at work by the end of December, or earlier if the was facility short-handed. She had, for instance, been asked to take three shifts between Christmas and New Year’s. She maintains that she is unable to work full-time due to the pressures of her home life, largely as a result of J.2’s illness.

[79] In cross-examination T.L. pointed out that J.L. had gone on stress leave, both at the C[…], and later at the group home. She described these absences as the result of reactive depression to life’s issues, including the divorce, a mentally ill child, and lack of emotional support.

Conclusion on Spousal Support

[80] J.L. seeks spousal support of $1,808 at the “high” range of the Spousal Support Advisory Guidelines, with $995 being the low end for T.L.’s income of $104,498.90 (based on his Exhibit 2 Financial Statement and pay stub).

[81] When making an order for spousal support, section 15.2(4) of the Divorce Act requires the court to consider the condition, means, needs and other circumstances of each spouse, including the length of time cohabitated, the functions performed by each spouse during cohabitation, and any order, agreement or arrangement relating to support of either spouse.

[82] The purposes of a spousal support order, as outlined in section 15.2(6), are to recognize any economic advantage or disadvantage to the spouses arising from the marriage or its breakdown, to apportion any financial consequences from the care of any child of the marriage over and above child support obligations, to relieve any economic hardship arising from the breakdown of the marriage, and to promote the economic self-sufficiency of each spouse within a reasonable period of time.

[83] It is clear to me that J.L. is a candidate for support given, at minimum, the disparity between the parties’ incomes and the length of the marriage. She has always been the primary caregiver of the children and wholly supported T.L.’s training as a police officer. His current income is the result of the joint effort made by them both over the course of the marriage. Over and above that, J.L. has some special needs. Owing to her hearing impairment, she has a significant expense for the replacement of her hearing aids every 3 years (currently $4,346.50, of which $1,000 is covered by the government). While some of the difference had been covered by T.L.’s benefits, the divorce will obviously impact her coverage.

[84] As well, J.L. is, and will likely continue to be, the primary caregiver for J.2. Even if additional financial assistance is available for him, it is likely he will remain with his mother for some time.

[85] Further, I accept J.L.’s evidence that the couple decided to work towards T.L.’s training as a police officer in the interests of their family. I additionally accept that this necessarily meant that her education/retraining would be deferred to allow her to maintain the home front. All of these factors suggest that support should be indefinite.

[86] That being said, I find she has an obligation to contribute to her own support. She has proven herself capable of working (even when the children were younger) when financial circumstances mandated same. Her job options should be somewhat enhanced by her completion of her high school diploma. This is the basis for my earlier finding that J.L. is capable of earning an income of at least $20,000 per year. Taking into account T.L.’s child support obligations, I find that spousal support in the low range is appropriate. Using T.L.’s expected 2012 income of $104,499 and J.L.’s imputed income of $20,000, the “low” range of the “with child support” formula is $1,142.

[87] As such, T.L. will pay to J.L. $1,142 per month in spousal support commencing December 1, 2013.

[88] T.L. shall obtain a policy of Life Insurance naming J.L. as a beneficiary in the face amount of $200,000 as a means of securing the support obligations owed.

RETROACTIVE SUPPORT:

[89] J.L. seeks retroactive child support in the amount of $20,578, although she conceded at trial that this was overstated by at least $1,000 (based on un-included payments from T.L.). She also seeks $43,449 in retroactive spousal support based on the high end of the range figures. She attaches Divorcemate calculations for each of the periods for which retroactivity is sought.

[90] At trial, J.L. produced photocopies of cheques paid to her by T.L.. There were four cheques from June, July and December 2009 for $500 each, and four cheques from August to October 2010 for $600, for a total of $4,400. T.L. produced copies of two additional cheques from May 2009 for $500 each. Thus, the evidence shows that from May 2009 to October 2010, T.L. paid $5,400 to J.L..

[91] The parties executed temporary Minutes of Settlement on December 1, 2010, which required T.L. to pay to J.L. $1,422.00 per month in child support, in addition to $423 per month to in spousal support. A set-off for child support for N. spent was included in the calculation.

[92] In July 2011, T.L. reduced his child support payment by $300 per month since J.1 was over 18 and no longer in school full time. The Statement of Agreed Facts states that J.1 ceased to be in fulltime attendance at school in February 2012. He obtained fulltime work at C[…] from May until December 2012.

[93] On September 7, 2012, Justice Pazaratz made a temporary without prejudice order requiring T.L. to pay for the maintenance of the matrimonial home, including the mortgage, utilities, and Reliance bill. This sum was to satisfy child support. J.L. argued that this had been predicated on an estimated $1,700 in home expenses per month, when in reality the home expenses were $155 less than expected. She thus seeks retroactivity for this differential. Over and above that amount, Justice Pazaratz ordered spousal support of $550 per month commencing September 1, 2012. I understand that T.L. has been paying the $2,250 per month required by that order since September 7, 2012.

Retroactive Child Support

[94] J.L. seeks $20,578 in retroactive child support. Her calculations are set out in Exhibit 19.

[95] From the time the parties separated in March 2009 until April, all four children resided with T.L.. In April, J.2 and N. were in the care of CAS, and C. and J.1 stayed with relatives or mutual friends. In July 2009, Justice Thibodeau made a temporary care and custody order placing C. and J.1 in the care of J.L. and J.2 and N. in the care of T.L.. By October 2009, all four children were residing with J.L..

[96] In March 2010, C. turned 18 and was not attending school. Therefore, he ceased to be a child of the marriage. In February 2012, J.1 turned 18 and was not attending school. He then ceased to be a child of the marriage. However, he regained that status in January 2013 when he began attending M[…] College. As I decided above, due to his mental health issues, J.2 continues to be a child of the marriage despite turning 18.

[94] When considering whether to award retroactive child support, the court should consider the following factors: whether there is a reasonable excuse for why support was not sought earlier; the conduct of the payor parent; the circumstances of the child; and the hardship that may be occasioned by a retroactive reward (See S. (D.B.) v. G. (S.R.), 2006 SCC 73).

[95] It is clear that the circumstances of this separation were most difficult for these children for some time. After her arrest, J.L. lived in a shelter, a motel (with 2 beds and a microwave only – meals were taken at her mother’s home), then in low income housing before moving back to the family home in May 2011. The kids thus had 6 different homes over that 2 year period of upheaval. Prior to her return to the matrimonial home, J.L. had all four children with her from October 2009 forward.

[96] The $5,400 paid by T.L. from May 2009 to October 2010 was woefully inadequate for the support of the children.

[97] As noted above, the parties executed Minutes of Settlement in December 2010 in which they agreed on amounts for spousal and child support. These amounts were modified by the order of Justice Pazaratz in September 2012. These agreements/orders shall be respected. As such, retroactivity shall only pertain to the timeframe from August 1, 2009 to November 30, 2010, before any arrangements for support were made.

[98] Given that the children were either with T.L. or shuffled around between family and CAS care for the first few months after the parties separated, I am ordering retroactive child support to begin August 1, 2009.

[99] For August and September 2009, each party’s child support obligations shall be set-off, as C. and J.1 were living with J.L. and J.2 and N. were living with T.L.. From October 2009 until March 2010 when C. ceased to be a child of the marriage, child support will be payable for all four children as they resided with J.L., with a set-off for J.L.’s support obligation for N. when he was T.L.’s care. From April 2010 until November 2010, prior to the parties’ agreement beginning December 2010, child support will be payable for J.1, J.2 and Nicolas, again with a set-off for N.’ support.

[100] In calculating the amount of retroactive child support, I have relied on T.L.’s income for 2009 to 2010 as outlined in his tax returns attached to his sworn Financial Statement at Exhibit 2. As J.L. did not attach tax return information for the relevant years to her Financial Statement at Exhibit 10, I have relied on the incomes she used in her calculations for retroactive support as found in Exhibits 19 and 21.

[101] Calculating support owing based on this information, T.L. will pay to J.L. $19,550 in retroactive child support.

Retroactive Spousal Support

[102] J.L. is seeking $43,449 in retroactive spousal support, based on the “high” range of the Spousal Support Advisory Guidelines, beginning on the date of separation. Her calculations are set out in Exhibit 21. The low end figures would prescribe retroactivity of $16,199, with a mid-range retroactivity of $28,704.

[103] The factors to consider when determining whether retroactive spousal support is warranted are similar to those considered when determining retroactive child support. Specifically, the court should consider the needs of the recipient, the conduct of the payor, the reason for the delay in seeking support, and any hardship the retroactive award may cause the payor spouse (See Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269). However, these factors are considered and weighed differently because the legal principles regarding child support and spousal support are different. Child support is the right of the child, whereas there is no presumptive right to spousal support.

[104] Other retroactive spousal support considerations include: the extent to which the claiming spouse established past need and the payor spouse’s ability to pay; the underlying basis for the ongoing support obligation; the requirement that there be a reason for awarding retroactive support; the impact of a retroactive award on the payor; any blameworthy conduct on the part of the payor; the notice of an intention to seek support and any negotiations; a delay in proceeding and any explanation for that delay; and the appropriateness of a retroactive order pre-dating the date on which the application for divorce was issued (Bremer v. Bremer (2005) 2005 3938 (ON CA), 13 R.F.L. (6th) 89 (Ont. C.A.)).

[105] As indicated at the outset, I was provided no explanation for the existence of a 2009 file or any explanation for the apparent hiatus in the litigation. I was dealing with a matter initiated by T.L. (in his quest for a divorce), but knew from Justice Pazaratz’s endorsement that issues from a 2009 application would be left for my consideration as well. This gap causes me some pause particularly as each of the parties had counsel up until trial. I thus am unable to explain the delay in proceeding; intention to seek support (although presumed), or any negotiations.

[106] All of that being said, it would appear that J.L. had been in need of support and that T.L. had an ability to pay. He, at least partly as a result of J.L.’s efforts in holding down the fort at home, was able to upgrade his skills and education to become a police officer. She did not have a similar opportunity and thus continues to be economically disadvantaged.

[107] Retroactive spousal support is clearly a matter within my discretion. The court’s role is to balance the means and needs of the payor and the payee. I had significant evidence of a period of tremendous turmoil in J.L.’s life and finances immediately post separation. T.L. maintained his employment, remained in the matrimonial home and carried on. This situation makes it clear that some retroactive support is in order. In coming to an amount I considered the aggregate payout being required of T.L. as well as agreements that appear to have been entered into by the parties throughout.

[108] As such, retroactive spousal support will be ordered from March 2009 until November 30, 2010, when the parties made an agreement about spousal support in their Minutes of Settlement.

[109] Using the same time periods and child care arrangements that were used to calculate retroactive child support to calculate retroactive spousal support, T.L. will pay to J.L. $6,919 in retroactive spousal support.

CONCLUSION

[110] T.L. shall thus pay J.L. the sum of $19,550 for retroactive child support, and the sum of $6,919 for retroactive spousal support. These debts shall be satisfied by the payment of an additional $500 per month over and above the ongoing support requirements until same are satisfied.

[111] An SDO shall issue.

[112] Each of the parties shall bear their own costs of this trial unless timely formal offers to settle were exchanged.

___________________________

Milanetti J.

Released: January 6, 2014

APPENDIX A

Assets Husband Wife

Matrimonial Home (joint and current) $112,500.00 $112,500.00

Contents 2,500.00 2,500.00

Pension 53,507.70

RRSP 6,413.00

$174,920.70 $115,000.00

Debts

Mortgage (current as per husband) $82,651.74 $82,651.74

Net (Assets less Debts) $92,268.76 $32,348.26

Difference ÷ 2 = $29,960.25

Equalization is $29,960.25

COURT FILE NO.: FS-12-23

DATE: 2014/01/06

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

T.L.

Applicant

- and –

J.L.

Respondent

REASONS FOR JUDGMENT

MILANETTI J.

JAM:mg

Released: January 6, 2014