ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: F2002/12
DATE: 2014-01-16
BETWEEN:
Oleg Petrenko
Applicant
– and –
Julia Petrenko
Respondent
Appearing in Person
Appearing in Person
HEARD: January 8 and 9, 2014
REASONS FOR DECISION
THE HONOURABLE MR. JUSTICE D.J. GORDON
[1] The parties were able to resolve most of the child related issues, leaving spousal support and prior extraordinary child expenses requiring determination. There are no property claims.
Background
[2] Oleg Petrenko and Julia Petrenko married in Latvia on April 30, 1982. There was a dispute regarding the separation date, ultimately resolved as being October 5, 2010, as a result of a temporary court order, granted, on consent, on March 28, 2013.
[3] Three children were born to the relationship: Helen, on April 15, 1983; Pavel, on September 21, 1992; and Nickey, on October 4, 2000. Helen and Pavel are no longer dependants within the meaning prescribed in either the Family Law Act or the Divorce Act.
[4] The parties emigrated to Canada in 2000.
[5] A divorce was granted on June 24, 2012.
[6] As hereafter discussed, the parties resolved a number of issues arising from their separation, leaving for determination spousal support and prior extraordinary child expenses. Their dispute is somewhat complicated by the existence of a purported separation agreement.
Separation Agreement
[7] The parties entered into a separation agreement on December 12, 2008. Neither party consulted a lawyer. The agreement predates the separation. There was some conflict in the documentation filed in this case as to whether the separation agreement was put in place for a pending separation, or that separation occurred while continuing to reside together or that a reconciliation had taken place. In result, the validity of the agreement was said to be in issue.
[8] The essential terms of the separation agreement are as follows:
(a) joint custody of Pavel and Nickey, primary residence with Ms. Petrenko and 50:50 shared parenting;
(b) Mr. Petrenko to pay guideline child support of $952 monthly, commencing January 1, 2009 until Ms. Petrenko has full time employment with equal or higher income;
(c) education expenses for the children to be shared equally when Ms. Petrenko has equal or higher income, until then Mr. Petrenko to pay all expenses;
(d) Mr. Petrenko to pay spousal support of $900 monthly, commencing January 1, 2009 until Ms. Petrenko has full time employment with equal or higher income;
(e) each party to retain possession of their respective vehicle.
[9] At the outset of the trial, I canvassed the issue as to the validity of the separation agreement with the parties. Mr. Petrenko conceded that Ms. Petrenko was entitled to spousal support, although he is seeking a termination date be established. Quantum of support was the outstanding dispute and whether there ought be a time limit imposed. Extraordinary child expenses were not fully addressed in the agreement, only education items being mentioned.
[10] I was of the view the validity of the separation agreement was not a matter requiring determination, having regard to the nature of the real dispute. So as to focus on the issues of spousal support and extraordinary child expenses, the parties were content the trial proceed without addressing the circumstances surrounding the preparation and execution of the separation agreement, or its validity.
The Parties
[11] Mr. Petrenko is 50 years of age. He worked at a variety of jobs after arriving in Canada. In or about 2003, Mr. Petrenko obtained a position as a special constable with Halton Police Service. He has continued that employment to the present. His 2012 income was $67,136. Mr. Petrenko has applied for and been accepted as a candidate at police college, tentatively in 2014. If he successfully completes the program, Mr. Petrenko would continue at Halton Police Service as a police constable, but at a temporarily reduced salary. As this event has not yet occurred, Mr. Petrenko acknowledges the determination of the issues herein will be based on his current income. Any future alteration in employment or income may well result in a motion to change.
[12] Ms. Petrenko is 51 years of age. By virtue of her education and training, she had qualified to practice as a medical doctor in Latvia. She completed a number of required courses in Canada, pursuing the same designation. Unfortunately, Ms. Petrenko is unable to achieve this goal as the regulations in place prohibit such designation for doctors who have been out of practice more than three years. In result, Ms. Petrenko has taken courses in related fields, specifically medical research. She then qualified for several part time contract positions, such as at Sick Kids Hospital and Mount Sinai Hospital. The compensation has not been rewarding to date. Ms. Petrenko’s employment income in 2012 was $5,069. She has not been successful in obtaining further contract positions. Ms. Petrenko had started a two year graduate program to attain a higher designation in the field of research but had to discontinue for financial reasons. At the present time, she is cleaning houses to earn income, reporting a monthly income of $950. She also receives the child tax credit for Nickey and an HST rebate along with child and spousal support from Mr. Petrenko.
Litigation
[13] Mr. Petrenko commenced this proceeding with a motion to change the separation agreement, issued on November 22, 2012. The usual documents from both parties followed and conferences were held.
[14] At the time he presented the motion to change, Mr. Petrenko resided in Hamilton. He subsequently moved to Mississauga. Ms. Petrenko has always resided in Mississauga. The court file should have been transferred to Brampton. I allowed the trial to proceed so that the issues could be decided without further delay. Any future proceedings should occur in Brampton.
[15] Given the conflict between the date of separation and the date of the separation agreement, a motion to change may not have been procedurally correct. Nevertheless, the issues must be addressed and, if required, I would direct the motion be converted to an application and the responding material to an answer.
Orders
[16] In summary form, the following orders were granted following prior motions or conferences:
(i) March 28, 2013
- on a final basis:
(a) date of separation seemed to be October 5, 2010; and
(b) no support owing pursuant to separation agreement prior to said date
- on a temporary basis:
(a) issue of whether separation agreement is binding remains outstanding;
(b) child support for Pavel terminated as of March 31, 2013, without prejudice to a retroactive adjustment;
(c) father to pay mother guideline child support for Nickey at $614 monthly on income of $67,136, commencing April 1, 2013; and
(d) arrears payable at the rate of $200 monthly, commencing May 1, 2013
(ii) May 17, 2013
- on a temporary basis, and to clarify the order granted March 28, 2013:
(a) spousal support payable by father to mother of $900 monthly, as set out in the separation agreement, is still owing since October 5, 2010; and
(b) monthly payment towards arrears as previously directed applies to child support, arrears of spousal support may be enforced in the usual manner.
(iii) May 23, 2013
- on a temporary basis, case directed for trial with viva voce evidence and providing for updated financial statements and other documents.
Resolved Issues
[17] At the outset of the trial, the parties reported a resolution of several issues, as follows:
(a) the termination of the obligation to pay child support for Pavel, as set out in the temporary order granted March 28, 2013, is made final (the prior order had left open the issue of an earlier termination date but Mr. Petrenko elected not to pursue the claim);
(b) joint shared custody of Nickey, primary residence with Ms. Petrenko and time sharing to be arranged by the parties in consultation with Nickey;
(c) Mr. Petrenko to continue to pay guideline child support of $614 monthly on his 2012 income of $67,136 (as set out in the temporary order granted March 28, 2013);
(d) the parties to equally share extraordinary expenses for Nickey and shall consult each other before incurring any such expense and agree on same, such agreement not to be unreasonably withheld.
[18] A final order shall issue on those terms, along with a support deduction order and the usual requirement for ongoing income and employment disclosure by both parties.
[19] As I indicated to the parties, any dispute regarding the decision making for or time sharing with Nickey and extraordinary child expenses may be determined by the court on future motion or application.
Spousal Support
[20] Spousal support is the primary issue in this case, particularly as to quantum and duration. Mr. Petrenko has been paying $900 monthly since the separation in October 2010, and as previously ordered, although there is a small amount of arrears outstanding.
[21] Mr. Petrenko seeks to terminate this support obligation. He is content with paying a lesser amount for two years, the time required for Ms. Petrenko to complete her post graduate course of studies. Mr. Petrenko’s position is that Ms. Petrenko is well qualified to obtain employment at an equal or higher income than what he earns. He says he has supported her pursuit of education thus far but it is time his obligation should come to an end.
[22] Ms. Petrenko asks for spousal support to continue indefinitely and at a higher amount. She refers to the child care obligations that previously limited her ability to seek employment and the present restricted job opportunities. Ms. Petrenko wants to pursue a further education program so as to better qualify for employment in the field of research.
[23] This was a long term marriage of almost twenty-nine years. Child care obligations during the relationship are an important consideration. The focus, in my view, is with the ability of Ms. Petrenko to become self-supporting. In this regard, there can be no dispute she has impressive qualifications. Are there employment opportunities?
[24] Ms. Petrenko testified as to obtaining part time contract positions in the past with modest remuneration. She referred to a binder of job applications submitted to prospective employers in the public and private sector, said to be in excess of one hundred. Ms. Petrenko was unsuccessful in these applications, saying her qualifications were insufficient or that she lacked the required experience. Ms. Petrenko specifically addressed the job postings presented in Mr. Petrenko’s material.
[25] Ms. Petrenko is of the view her ability to obtain employment in her field requires completion of a two year post graduate program.
[26] This evidence was essentially not disputed by Mr. Petrenko. All he could say is that he is of the belief Ms. Petrenko should be able to obtain full time employment. No independent evidence was presented by either party on this issue.
[27] I cannot speculate as to whether there is other evidence. The evidence of Ms. Petrenko is reasonable. The current economic limitations in the public and private sectors are well known. I am not surprised that there are fewer research opportunities than in the past or that there is greater competition for available positions. Many university graduates are unable to obtain employment in their field at the present time.
[28] It is unknown as to how successful Ms. Petrenko will be in her future endeavours. I can only decide the issue on the present circumstances. I accept the evidence regarding her present income as being reasonable.
[29] The expenses set out in Mr. Petrenko’s financial statement, for the most part, are also reasonable. The only real concern is the carrying cost of numerous debts, incurred by both parties during cohabitation. Mr. Petrenko made an assignment in bankruptcy. He is now discharged. Ms. Petrenko was left with the family debt. She ought be pursuing bankruptcy. Her explanation against an assignment is not persuasive.
[30] Nevertheless, there is an obvious need for spousal support. The existing payment of $900, along with child support, employment income and other sources barely meets current family expenses. Mr. Petrenko has the present ability to pay, revealing a modest surplus in his financial statement even with the current support payments. Spousal support must increase.
[31] In the circumstances, I conclude spousal support must continue. The appropriate monthly amount is $1,200 having regard to the financial status of the parties and the spousal support advisory guidelines. I decline to direct the support obligation to be time limited, that is by setting a termination date. Spousal support is reviewable in the event of a material change in circumstances and, as well, may be reviewed on or after June 30, 2016 so as to allow Ms. Petrenko sufficient time to complete the education program. Ms. Petrenko is to provide the usual annual income disclosure and to advise Mr. Petrenko as to any change in employment and any enrollment in education programs.
Prior Extraordinary Child Expenses
[32] The parties had an arrangement regarding extraordinary expenses for Nickey that, for the most part, was appropriate. A dispute, however, arose in 2012. Mr. Petrenko says he was not consulted in advance and that they could not afford some of the activities. Ms. Petrenko felt that the prior knowledge of Mr. Petrenko was sufficient to continue with the various items.
[33] For 2012 and early 2013, Ms. Petrenko incurred purported extraordinary expenses totaling $4,552. Mr. Petrenko reimbursed her for $1,558.
[34] There can be no dispute with most of the expenses, particularly relating to music and math lessons and for school supplies and uniforms. Two items are questionable, namely a Wonderland pass for $280 and acting expenses of $2,194. The Wonderland pass was for Ms. Petrenko, Nickey and Pavel. This is, at best, a recreation expense and does not qualify as an extraordinary expense. I am not persuaded that Mr. Petrenko was consulted about the acting expenses. Further, it is neither reasonable nor appropriate and, in fact, is an excessive charge by a talent agency. Accordingly, these two items are not approved, leaving a total expense of $2,078.
[35] Given the difference in the incomes of the parties in this time period, Mr. Petrenko’s share of the expense was approximately seventy-five per cent. He has paid his portion. Ms. Petrenko’s claim for further payment is dismissed.
[36] To avoid future problems, I add the following comments. In her testimony, Ms. Petrenko advised that she had enrolled Nickey in various activities in response to the child’s request. The child’s interest in an activity is important, but this cannot be the sole criteria. For example, Nickey lost interest in acting after his initial involvement in an expensive program. The activity must be of benefit to the child and be affordable for the parties. Not every program will qualify for cost sharing.
[37] Parents have a duty to consult each other prior to incurring the expense so that full consideration is given to benefit and cost. Given his age, Nickey should be involved in the discussion.
Summary
[38] For the foregoing reasons, a final order is granted on the following terms:
(i) the parties shall have joint shared custody of Nickey Petrenko, born October 4, 2000, principal residence with Ms. Petrenko and time sharing to be arranged by the parties in consultation with Nickey;
(ii) Mr. Petrenko to continue paying guideline child support, for Nickey, to Ms. Petrenko, in the monthly amount of $614, based on his 2012 reported income of $67,136, commencing February 1, 2014;
(iii) the parties shall equally share future extraordinary child expenses for Nickey and shall consult each other before incurring any expense and agree on same, such agreement not to be unreasonably withheld;
(iv) the obligation of Mr. Petrenko to pay child support for Pavel Petrenko, born September 21, 1992 is terminated as of March 31, 2013;
(v) Mr. Petrenko shall pay spousal support to Ms. Petrenko in the monthly amount of $1,200, commencing February 1, 2014, based upon his 2012 reported income of $67,136 and her 2013 reported employment income of $11,400;
(vi) Ms. Petrenko’s claim for reimbursement for prior extraordinary expense is dismissed;
(vii) for as long as the child Nickey is eligible to receive child support or Ms. Petrenko is eligible to receive spousal support, both parties must provide each other with updated financial disclosure, each year by May 31, commencing May 31, 2014, including notices of assessment and income tax returns;
(viii) Ms. Petrenko shall also provide immediate disclosure to Mr. Petrenko as to any change in her employment or income and any enrollment in education programs;
(ix) the issue of spousal support is reviewable in the event of a material change in circumstances and, as well, may be reviewed at the request of either party on or after June 30, 2016 having regard to Ms. Petrenko’s education program;
(x) Mr. Petrenko to continue the monthly payments to Ms. Petrenko in the amount of $200 towards outstanding arrears for child or spousal support until paid in full; and
(xi) a spousal deduction order shall issue in the usual terms.
D.J. Gordon J.
Released: January 16, 2014
COURT FILE NO.: F2002/12
DATE: 2014-01-16
ONTARIO
SUPERIOR COURT OF JUSTICE
Oleg Petrenko
Applicant
– and –
Julia Petrenko
Respondent
REASONS FOR DECISION
D.J. Gordon J.
Released: ** January 16, 2014**
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