ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: D-20446-13
DATE: 2014-04-29

BETWEEN:

Lynn Julie Despatie
Applicant

– and –

Christopher Paul Chartier
Respondent

Richard Guy, for the Applicant

Barbara Burton, for the Respondent

HEARD: April 24, 2014

DECISION ON MOTION

GAUTHIER, J.

The Motion

[1] The Applicant Wife (the “Wife”) seeks the following relief:

1. An interim Order for child and spousal support both retroactively and prospectively and in accordance with the child and spousal support guidelines.

2. An Order that the Respondent comply with the Order of Justice O’Neil pronounced on February 11, 2014 and requiring that the Respondent provide complete copies of his income tax returns for the years 2011, 2012 and 2013; and that he provide an appraisal of the matrimonial home failing which he shall be found in contempt of the said Order.

3. An Order that the home municipally known as 55 Fisher Street, Brantford, Ontario be sold forthwith and that the proceeds of sale be paid out to the Applicant.

4. An Order than the Respondent provide evidence to the Applicant that she has been designated as the irrevocable beneficiary of his life insurance policy or policies, documentary evidence that the Applicant and the children have coverage pursuant to his health, dental and medical coverage through his employment and documentary evidence that the Respondent is attempting to obtain a value of his pension.

5. Costs of this Motion on a substantial indemnity basis.

6. Such further and other relief as this Honourable Court may seem just.

The Facts:

[2] The parties, who are 37 and 38 years of age respectively, were married on July 1, 1995. They have two children, Shelby who is 19 years of age, and Sydney who is 13 years of age. The Husband is not the biological father of the child Sydney.

[3] The parties separated on September 1, 2012. Sydney has been living with the Wife since the separation.

[4] The evidence is contradictory with regard to Shelby’s residence after the parties’ separation. The Wife’s Affidavit indicates that Shelby resided with the Husband until 2013 (no date or month specified) when he began to reside with the Wife. The Husband’s material indicates that Shelby lived with him from July 2013, until January, 2014.

[5] In their submissions, counsel appeared to agree that Shelby resided with his father for the six month period leading up to January 2014, at which time he moved in with the Wife.

[6] The Wife’s income for 2012 was $500. For 2013 it was $43,266.87. There was no indication that her income for the current year would be significantly different than for 2013.

[7] The Husband’s income for 2012 was $188,511. For 2013, it was $180,664. The Husband left his employment and in August 2013, he, together with four friends, bought into another company and the husband anticipates that his income for 2014 will have dropped to approximately $85,000. He predicts that it will gradually go up again once this new business venture is on its feet.

[8] The Husband continues to occupy the matrimonial home and would like to purchase the Wife’s share of the home.

[9] Although the Husband has not paid any child or spousal support to date, it is agreed that he has provided a total of $28,440 to the Wife, since the separation, by way of cash payments and payments relating to the Wife’s vehicle and two cell phones.

[10] The Application was issued on August 7, 2013, and included claims for spousal and child support, custody and equalization of net family properties.

[11] At the Case Conference held on January 11, 2014, O’Neill J. made the following Order:

IT IS ORDERED that the respondent shall provide complete copies of his income tax returns for the years 2011, 2013 and 2013.

IT IS FURTHER ORDERED that both parties shall submit to Questioning if requested.

IT IS FURTHER ORDERED that the applicant shall have temporary custody of Sydney Chartier, born December 31, 2000, with reasonable access to the respondent.

IT IS FURTHER ORDERED the respondent shall designate the applicant as the irrevocable beneficiary of his life insurance policy or policies, as long as he is required to pay child support and/or spousal support.

IT IS FURTHER ORDERED that the respondent shall secure and then forthwith disclose, a fair market appraisal of the matrimonial home at Fisher Street, Brantford, Ontario as well as an evaluation of his pension.

IT IS FURTHER ORDERED that the applicant shall provide the respondent of her full 2011, 2012 and 2013 income tax returns.

IT IS FURTHER ORDERED the respondent shall maintain health and dental and medical coverage for the applicant and the two children as long as the plans and coverage are available for the applicant and the children through the respondent’s employment or work.

IT IS FURTHER ORDERED that the parties are at liberty to bring Motion(s) as advised.

IT IS FURTHER ORDERED that this matter is adjourned to the Trial Co-ordinator to fix a date (upon request) for a Settlement Conference

Position of the Wife:

[12] Spousal Support:

(a) The Husband has the means to provide spousal support to her and she requires it.

(b) The Wife seeks an Order for mid-point guideline spousal support for 2012, in the amount of $4,982, from September 1. This is based on the Husband’s income of $188,511.

(c) The Wife seeks mid-point guideline spousal support for 2013, in the amount of $3,117 per month, based on the Husband’s income of $180,664

(d) For the year 2014, the Wife suggests that spousal support be based on the 2013 income, and it can be adjusted later when the Husband’s actual income can be ascertained.

[13] Child Support:

(a) Although the Husband is not Sydney’s biological father, he has always treated her as his own child, and, therefore he should be paying child support for her.

(b) With regard to Shelby, the Wife has provided no evidence that the child is entitled to support. Her counsel did advise that the Wife requested that Shelby’s school confirm in writing that he is enrolled and in attendance full-time.

(c) The Wife seeks child support for Sydney only, for 2012, in the amount of $1,548 per month, commencing on September 1st, based on the Husband’s income as set out above.

(d) For 2013, the Wife is seeking child support in the amount of $1,490 per month, again, for only one child.

(e) For 2014, the Wife seeks child support for both Shelby and Sydney, in the amount of $2,297 per month, based on income of $175,000 per year.

(f) The Wife suggests that, with regard to Sydney, it is open to the Husband to seek an Order adding Sydney’s biological father to these proceedings. To date, he has not done so.

(g) With regard to both spousal and child support, the Wife acknowledges having received $28,440 from the Husband.

[14] Enforcement of the terms of O’Neill J’s Order:

(a) According to the Wife, no valid reason has been offered by the Husband for his failure to comply with the terms of that Order.

(b) The Wife suggests that if the Husband refuses to obtain a fair market value appraisal of the home, then the property should be immediately listed for sale.

The Husband’s Position:

[15] Spousal Support:

(a) The Husband suggests that in addition to the $28,440 already paid to the wife, he should be given a credit for the $30,000 he paid in order for the Wife to obtain a college education during the marriage.

Child Support:

Shelby:

(a) The Husband does not believe that Shelby is in full time attendance at high school. Shelby has been transient, having lived in multiple locations, and having dropped out of school while he was living with the Husband. Therefore, Shelby is not entitled to support.

Sydney:

(a) The Husband repeatedly requested that the Wife seek child support for Sydney from Sydney’s biological father, who Sydney sees frequently.

(b) It is the Husband’s position that he should only have to pay one half of the Child Support Guideline child support for Sydney.

[16] Compliance with the February11, 2014, Order:

(a) The Husband has been unable to provide his income tax returns for the years 2011, 2012 and 2013 as they have not yet been prepared. The paper work he required to prepare those income tax returns was taken during a break-in at his home in January 2014.

(b) The Husband has, however, provided T-4 slips for 2012, as well as 2013 year end pay stubs.

(c) The Husband offers no real explanation for not having complied with paragraph 5 of the February 11, 2014, Order.

(d) The Husband confirms that he continues to maintain health and dental coverage for the Wife and the children and that he has no intention of ceasing that coverage.

Analysis

[17] Spousal Support:

(a) Based on the material filed and the submissions made by counsel for the husband, it appears that the husband does not dispute the entitlement of the Wife to spousal support, but rather, suggests that the monies he expended for the Wife’s education during the marriage should offset any spousal support owing.

(b) That is an issue for trial. I am not prepared to address this issue on the record before me.

(c) I am also not prepared to address the issue or retroactive of retrospective spousal support. The Wife’s material provides little or no information about her personal and financial circumstances for 2012 and 2013, except to set out what her income was.

(d) There is also the matter of the amount of monies the Husband has advanced to the Wife since the separation. The parties have agreed on the $28,440 for purposes of the motion, but the Husband’s materials indicate that he advanced a further $12,950 to the Wife. This too is a matter for trial.

(e) This was a 17 year marriage, with children. The Husband earns, at the very least, double what the Wife earns. The Wife has a need for support and the Husband has the means. There will be an Order for spousal support, in the amount of $1,041 per month, based on the Husband’s estimated income of $85,000, effective January 1, 2014.

(f) The amount of spousal support should be readdressed in July 2014, based on the Husband’s projected 2014 income, which can be extrapolated from the year to date income earned at that time.

[18] Child Support:

Shelby:

(a) There is some question about Shelby’s entitlement to child support. On the material before me, I am not prepared to make a finding that he is entitled to child support.

(b) There will however be an Order that the Wife request and obtain a letter from whatever school Shelby may be attending, to confirm whether Shelby is enrolled in a full time program of education, and, if so, enclosing a record of his attendance. The Husband has undertaken, through his counsel, to pay child support for Shelby if Shelby is entitled to same.

Sydney:

(a) Although the Husband is not Sydney’s biological father, he nonetheless treated her like his own child, at least while the parties cohabited. Sydney is entitled to child support from the Husband.

(b) The Husband may well seek to add Sydney’s biological father as a party and seek contribution from him to Sydney’s support since separation, but he has not yet done so. Therefore, it is appropriate that the Husband pay guideline child support for Sydney, from the time of the parties’ separation, and there will be an Order to that effect.

[19] Compliance with the February 11, 2014 Order:

(a) Paragraph 1- Income Tax Returns.

i. The Husband was ordered to provide complete copies of his income tax returns for the years 2011, 2012, and 2013.

ii. As stated earlier in this Ruling, the Husband says the documents that he would rely on to file those income tax returns were lost after a break-in at his residence. There was no description of the documents, nor was I provided with a time frame within which the Husband could comply with the Order.

iii. Having said that, the Husband has produced T-4 documentation and it appears that the Husband’s income for those years is not in dispute. In these circumstances, it is not unreasonable to afford the Husband some additional time to comply with the Order, and I will grant him 90 days to do so.

(b) Paragraph 4 – Life Insurance.

i. The Husband has indicated that the Wife is the irrevocable beneficiary of his life insurance policy or policies. He should produce written confirmation of that, from the insurer, within 60 days.

(c) Paragraph 5 – Appraisal of the matrimonial home.

i. The Husband was ordered to secure and disclose, forthwith, a fair market value appraisal of the home. He has not done so. He will be granted another 30 days to do so, failing which the matrimonial home will be listed for sale.

(d) Paragraph 7 – Medical and Extended Health Care Coverage.

i. The Husband was ordered to maintain health, dental, and medical coverage for the Wife and the children. He should provide written confirmation of such continued coverage, within 60 days.

Conclusion:

[20] ORDER TO GO AS FOLLOWS:

1. The claim for retroactive or retrospective spousal support is adjourned to the Trial.

2. The Husband shall pay to the Wife spousal support in the amount of $1,041 per month, based on estimated yearly income of $85,000, as of January 1, 2014, and continuing until further Order of the Court.

3. The quantum of spousal support shall be revisited in July 2014, with a view to adjusting same to reflect the Husband’s projected 2014 income. Either party may bring a motion to address the issue of the quantum of spousal support.

4. The Wife will request and produce a letter from whatever school Shelby may be attending to confirm whether Shelby is enrolled in a full time program of education, and, if so, enclosing Shelby’s attendance record.

5. The Husband shall pay child support for the child Sidney as follows:

(a) For the months of October, November, and December 2012, the sum of $1,548 per month, based on actual income of $188,511;

(b) From January 1, 2013, to and including December 1, 2013, the sum of $1,490 per month, based on actual income of $180,664; and

(c) From January 1, 2014, and on the first day of each month thereafter, the sum of $762, based on estimated income of $85,000.

6. Taking into account the credit to the Husband of the sum of $28,440, the arrears of spousal and child support are fixed at $1,296, and shall be paid to the Wife within 30 days.

7. The Husband shall produce the complete copies of his income tax returns for the years 2011, 2012, and 2013, within 90 days.

8. The Husband shall produce written confirmation from his life insurer(s) that the Wife has been designated the irrevocable beneficiary of the policy or policies on his life, within 60 days.

9. The Husband shall obtain and produce a fair market value appraisal of the matrimonial home located at 55 Fisher Street, Brantford, Ontario, within 30 days.

10. If the Husband fails to comply with the provisions of paragraph 9 above, the matrimonial home will be immediately listed for sale.

11. The Husband shall produce written confirmation from N.D.T. Group Inc. or from the provider of the extended health care plan, that the Wife and the two children are covered under such plan, within 60 days.

[21] If the parties are unable to agree on costs of the Motion, they shall communicate with the Trial Co-Ordinator, within 20 days, to set a date and time to argue costs, failing which they will be taken to have reached an agreement on costs.

The Honourable Madam Justice Louise L. Gauthier

Released: April 29, 2014

COURT FILE NO.: D-20446-13
DATE: 2014-04-29

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Lynn Julie Despatie
Applicant

– and –

Christopher Paul Chartier

Respondent REASONS FOR JUDGMENT

Gauthier J.

Released: April 29, 2014