SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FC-13-1749
DATE: 2014/03/14
RE: APRIL ARTHRELL-POIREL, Applicant
AND
DOMINIQUE POIREL, Respondent
BEFORE: M. Linhares de Sousa J.
COUNSEL:
Susan B. Arlitt, counsel for the Applicant
Jill K. Addison, counsel for the Respondent
HEARD: March 7, 2014 (at Ottawa)
ENDORSEMENT
[1] In her notice of motion, filed at tab 8 of the continuing record, the Applicant, Ms. April Arthrell-Poirel, sought an order for 13 heads of relief against the Respondent. By the time the motion was argued most of the issues had been resolved between the parties. The following were the outstanding issues on this motion:
(1) Child support for the child, Aelia, once she commenced her University studies away from Ottawa and her mother’s home. It was agreed between the parties that the Respondent would pay Guideline support for Aelia in the amount of $1,381 per month from April 1, 2013 to and including August 31, 2013.
(2) The proportional sharing of Aelia’s section 7 expenses including post-secondary tuition fees, books, residence, transportation, food and supplies within 30 days of being provided with a receipt, commencing September 1, 2014. It is agreed that until September 1, 2014, the Respondent shall pay to the Applicant 60% of those section 7 expenses.
(3) The payment of spousal support arrears in the amount of $4,075 within 30 days of the date of the order of this Court.
(4) The quantum of life insurance irrevocable coverage in order to secure child and spousal support in the event of the Respondent’s death. Evidence of such coverage to be exchanged annually on or before April 1st of each year commencing April 1, 2014 or upon request of the Applicant.
[2] With respect to issue 1, the Applicant seeks an order requiring the Respondent to pay in addition to his proportionate share of Aelia’s section 7 expenses relating to her University studies away from Ottawa, 50% of the Guideline amount, being $690.50 per month in order to contribute to her costs of maintaining a home for Aelia to which their daughter can return during the school year and holidays from school.
[3] This kind of payment was ordered in the case of Jahn-Cartwright v. Cartwright, 2010 ONSC 923, 2010 CarswellOnt 708 (S.C.J.) and counsel for the Applicant relies on it. Counsel for the Respondent contests the requests and submits that the relative financial positions of the parties in Cartwright, supra, are quite distinguishable.
[4] I agree with the submissions of counsel for the Respondent. The facts of Cartwright are distinguishable. Ms. Arthrell-Poirel earns almost double the amount that Ms. Cartwright earned. I find the request of the Applicant to be in excess of the real costs to her when her daughter will return from University to live with her.
[5] Assuming her daughter returns to live with her during the odd weekend, holiday time and the summer break, what appears reasonable to conclude is that Ms. Arthrell-Poirel will incur real costs for her daughter while she is away at school, during the summer months (May, June, July and August), and sundry other holidays, and weekends, (Christmas two to three weeks, reading week, Easter weekend, long weekends, few special family occasions or birthdays amounting to another two months).
[6] It is therefore ordered that in addition to his proportionate share of his daughter’s section 7 expenses, Mr. Poirel is ordered to pay full monthly Guideline amount for the support of his daughter for the four months of the summer break (May, June, July and August) in addition to two other months, as the parties shall agree.
[7] With respect to issue 2, Ms. Arthrell-Poirel requests an order that Mr. Poirel’s proportionate share of Aelia’s section 7 expenses increase from 60% to 70% commencing September 1, 2014. It is Ms. Arthrell-Poirel’s intention to return to school at that time to complete her civil law degree at the University of Ottawa. In order to do that she will have to attend school full-time. Consequently, her income will be reduced once she commences the last part of her studies.
[8] Counsel for Mr. Poirel contests this request and takes the position that this is a voluntary and unilateral decision undertaken by Ms. Arthrell-Poirel to reduce her income. He should not be forced to contribute to the financial consequences of that decision.
[9] I agree with counsel for Mr. Poirel. The evidence presented in support of such an order is deficient. Ms. Poirel appears to be conflating a spousal support claim with child support obligations. Furthermore, there is no evidence regarding the loss of income Ms. Arthrell-Poirel expects once she commences her studies in the fall of 2014. There is no evidence to support the quantum of the extra 10%. This portion of the motion is denied.
[10] With respect to issue 3, from the financial documents provided by both parties in support of this issue I am not able to determine the final amount of spousal support arrears, if any. This is because of the comingling of funds and debts exercised by the parties.
[11] I will declare the following principles in an attempt to have the parties finally resolve this issue. I agree with Ms. Arthrell-Poirel, that for the purpose of determining whether all spousal support has been paid, the accounting should only be based on the joint account to which Ms. Arthrell-Poirel had access. Payments towards joint debts cannot be considered spousal support payments unless Ms. Arthrell-Poirel clearly authorized Mr. Poirel to pay joint debts on her behalf with those monies. Any payment of joint debts by one spouse to the credit of the other spouse is to be accounted for at a later date. If after applying these principles any spousal support arrears are owed to Ms. Arthrell-Poirel by Mr. Poirel, those spousal support arrears are to be paid within 30 days of this endorsement.
[12] With respect to issue 4, the DIVORCEmate calculations presented by counsel indicated that given the level of child and spousal support payable by Mr. Poirel under the existing order, the quantum of life insurance required to secure those payments would be $534,358. Consequently, Mr. Poirel is ordered to provide life insurance coverage as a fund out of which child and spousal support will be paid in the event of the Respondent’s death. Mr. Poirel shall provide irrevocable coverage of $534,358 with loss payable to the Applicant. The Respondent shall provide evidence of continued coverage on an annual basis on or before April 1st each year commencing April 1, 2014 or upon request of the Applicant.
[13] The last issue is costs. The Applicant shall have two weeks from the date of this endorsement to serve and file her written submissions on costs. The Respondent shall have two week from that date to serve and file his written submissions on costs. The Applicant shall then have one week from that date to serve and file a reply, if she so wishes.
M. Linhares de Sousa J.
Released: March 14, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: APRIL ARTHRELL-POIREL, Applicant
AND
DOMINIQUE POIREL, Respondent,
BEFORE: M. Linhares de Sousa J.
COUNSEL: Susan B. Arlitt, counsel for the Applicant
Jill K. Addison, counsel for the Respondent
ENDORSEMENT
M. Linhares de Sousa J.
Released: March 14, 2014