COURT FILE NO.: 06-1012
DATE: 2014/07/28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Vivianne Jeannine Allaire (Lavergne)
Applicant
– and –
Jacques Louis Lavergne
Respondent
Self-represented
Patricia Lucas, counsel for the Respondent
HEARD: March 10, 11, 12 13 and 14, 2014
REASONS FOR JUDGMENT
laliberte, j.
INTRODUCTION
[1] The parties to these proceedings were married in 1973 and separated in 1994. There are two children of the marriage who are now grown men. These individuals have literally been before the courts for the last 20 years.
[2] On October 10, 2003, following a 4 day trial, minutes of settlement were filed with Justice Ingram who in turn issued a divorce order on October 17, 2003, reflecting the terms agreed upon by the parties. The Respondent seeks to vary the spousal support provisions of this order. The Applicant is requesting a retroactive award for post-secondary expenses for the child Stephane who was born on July 15, 1988.
[3] The 2003 spousal support order sought to be varied by the Respondent provides as follows:
“6. The Respondent/Husband shall pay to the Applicant/Wife for her support, the sum of $7,000.00 per month, commencing November 1, 2003, subject to a material change in the circumstances of the parties whether or not foreseeable or foreseen. The parties acknowledge that they have not agreed on the Respondent’s income for support purposes, the quantum being determined on the basis that the income is no less than $350,000.00 and no more than $500,000.00 per annum.”
[4] His motion to vary is based on the termination of his employment with Dominion Citrus Limited and the commencement of employment with Rite-Pak Produce which resulted in reduced income.
[5] The Applicant’s claim for retroactive post-secondary expenses for the child, Stephane, was addressed in the context of the Respondent’s motion on consent of the parties.
[6] The Applicant claims that she has paid $148,361.07 for the support of the said child from 2010 to July 2012. Stephane has successfully completed a dental hygienist course in Toronto. Her position is that the Respondent should share in these expenses.
[7] The issues for the Court are therefore as follows:
Has there been a material change in the circumstances warranting a review of the spousal support order of October 17, 2003?
If there is such a change, what is the proper variation of this order?
What amount, if any, of the retroactive post-secondary expenses claimed by the Applicant, should be paid by the Respondent?
THE LAW
[8] In deciding these issues, the Court will be guided by the following legal principles:
Material change in circumstances
[9] Section 17 of the Divorce Act provides the statutory framework for the variation, rescission and suspension of spousal support orders made pursuant to this statute.
“17(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,
(a) a support order or any provision thereof on application by either or both former spouses...”
[10] The basis for such a review is set out in paragraph 17(4.1):
“17(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.”
[11] If the Court finds that there is a material change in circumstances, it may include any provision in the variation order that could have been included in the order being varied (paragraph 17(3)).
[12] Paragraph 17(7) provides the objectives to be sought by a variation order, namely:
“(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;
(b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.”
[13] The Supreme Court of Canada in Willick v. Willick, [1994] 3 S.C.R. 670 explains at paragraph 20:
“The approach which a court should take is to determine first, whether the conditions for variation exist and if they do exist what variation of the existing order ought to be made in light of the change in circumstances.”
[14] At paragraph 21, the Court articulates the threshold of when the conditions for variation exist as follows:
“21. In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances. This means a change, such that, if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation.”
[15] The question whether there has been a material change of circumstances since the making of the order sought to be varied requires the court to consider the terms of the order and the circumstances of the parties at the time the order was made. (R.P. v. R.C. 2011 SCC 65, [2011] 3 S.C.R. 819 paragraph 25).
[16] As stated by the Supreme Court in R.P. v. R.C. op.cit. at paragraph 30:
“Under section 17(4.1) of the Divorce Act, the husband, as the Applicant, had the burden of establishing that there has been a material change in his circumstances since those existing at the time of the 1991 order.”
[17] If the basis for the application to vary the amount of spousal support is a decrease in income, the evidence must be sufficient to allow for a comparison between the ability to pay at the time of the impugned support order and the present ability.
[18] The Court’s decision must be made in accordance with the financial position of the parties as it exists at the time of the application to vary. As explained by the Supreme Court in Messier v. Delage (1983), 2 S.C.R. 401:
“The decision therefore must not be made in accordance with events which may or may not occur.”
[19] A payor’s desire to reduce work hours, reduce debt and save for retirement have been found not to amount to material changes in circumstances.
Rondeau v. Rondeau 2011 NSCA 5, [2011] N.S.J. no. 10.
Armstrong v. Armstrong [1992] O.J. No. 3094.
[20] A short term decrease in income will not suffice.
“In general, a material change must have some degree of continuity and not merely be a temporary set of circumstances.”
(L.M.P. v. L.S. 2011 SCC 64, [2011] 3 S.C.R. 775.)
[21] If the Court is satisfied that the payor has established on a balance of probabilities that there is a material change in circumstances, the Court must then decide what variation of the existing order ought to be made in light of this change. In doing so, the Court must be guided by the following principles:
− The Court must consider the material change and should limit itself to making only the variation justified by that change;
− A variation should not be seen as an appeal of the original order nor a de novo hearing;
− The Court must limit itself to making the appropriate variation and not weigh all the factors to make a fresh order unrelated to the existing one;
− The Court must consider the four objectives of spousal support enumerated in paragraph 17(7) of the Divorce Act;
− These objectives should be seen as operating in the context of a wide judicial discretion and providing for a more equitable distribution of the economic consequence of divorce between the spouses; none of these objectives has greater weight or importance than any other.
(L.M.P. v. L.S. 2011 SCC 64, [2011] 3 S.C.R. 775.)
[22] The issue of the application of the Spousal Support Advisory Guidelines was raised in these proceedings. The Court’s view is that the law on this question accords with the following words of Justice Chappel in Favero v. Favero 2013 ONSC 4216, [2013] O.J. No. 2882 at paragraph 73:
“73. The British Columbia Court of Appeal specifically addressed the question of whether Spousal Support Advisory Guidelines apply in variation proceedings under the Divorce Act in Beninger v. Beninger. I adopt the principles which the Court set out in that case. Prowse J. referenced the comments of the authors of the Spousal Support Advisory Guidelines that the Guidelines should be approached with considerable caution on variation applications. She reiterated the point made by the Spousal Support Advisory Guidelines authors that the formulas were not specifically designed to address some of the more complex issues which can arise on variation proceedings, including the impact of remarriage, second families and retirement. However, she accepted the proposition of the Spousal Support Advisory Guidelines authors that the guidelines can be used in variation proceedings in some situations, provided that caution is exercised to ensure that the use of the guidelines is appropriate taking into account the particular facts of the case before the Court.”
Expenses for post-secondary education
[23] Section 7 of the Federal Child Support Guidelines provides as follows:
“7(1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:
(e) Expenses for post-secondary education…
7(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.”
[24] Section 3.1 of schedule 111 of the said Guidelines provides that spousal support paid to the other spouse shall be deducted in calculating income under section 7.
[25] Under the Divorce Act, a child’s entitlement to financial support is based on the definition of child of the marriage found in section 2:
“2. “Child of the marriage” means 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.”
[26] In considering an award for retroactive child support, the Court should consider the following factors:
− the reason why the support was not sought earlier;
− the presence of any blameworthy conduct from the payor parent;
− whether the lack of financial support impacted on the child’s circumstances in terms of standard of living and need;
− whether the granting of a retroactive award who cause financial hardship to the payor parent;
(S. (D.B.) v. G. (S.R.) 2006 SCC 37, [2006] S.C.J. No. 37.)
DISCUSSION
Does the evidence disclose a material change in circumstances?
[27] The Respondent’s claim for a variation of the spousal support order sworn by him on January 24, 2010 is premised on the termination of his employment with Dominion Citrus Limited and the subsequent finding of a lower paying position with Rite-Pak Produce. He was initially employed by Rite-Pak on a probationary basis in January 2010 at a salary of $150,000.00 per year. Within five months he was offered full-time work at a yearly salary of $200,000.00 coupled with a discretionary bonus. He has no pension plan with Rite-Pak.
[28] The evidence discloses the following yearly income since 2010:
− 2010 $186,845.00
− 2011 $254,411.00
− 2012 $256,049.00
− 2013 $299,999.80
[29] The parties had agreed that the $7,000.00 monthly spousal support order provided for in Justice Ingram’s final order of October 17, 2003, was based on the Respondent having an income of no less than $350,000.00 and no more than $500,000.00.
[30] The Court notes that save and except for 2003, history has shown that this was a fairly accurate range. The evidence establishes the following income:
− 2002 $376,467.00
− 2003 $998,707.00
− 2004 $346,788.00
− 2005 $510,469.00
− 2006 $403,653.00
− 2007 $420,936.00
− 2008 $337,109.00
[31] In regards to 2003, the Applicant alleges in her Response to Motion to Change sworn on February 12, 2010, that the Respondent had deliberately misrepresented his income at the time of the making of the October 17, 2003. Her claim is that he purposely deferred a bonus to which he was entitled to prior to the order.
[32] The Respondent testified that the $998,707.00 income for 2003 is not reflective of his true income. The Court accepts his unchallenged evidence that he was required to generate income to pay the Applicant a $425,000.00 equalization payment. He did this, through a bonus and stock options. Paragraph 15 of the order provides that:
“15. Any income of the husband generated for purposes of satisfaction of the equalization payment, either directly or indirectly shall not be included in the husband’s income for purposes of either child or spousal support…”
[33] Therefore, the evidence does not, on balance, establish that the Respondent deliberately misrepresented his income in 2003 as suggested by the Applicant.
[34] The Applicant also suggests in her pleadings that the Court should consider the allegation made by the Respondent’s former employer that he has dishonestly misappropriated $1.8 million and hid same in an offshore bank. The Court rejects this suggestion. Quite simply, there is no evidence to support this proposition. The uncontradicted evidence of the Respondent is that he denies doing this and has sued for wrongful dismissal.
[35] The Court’s task is to compare the Respondent’s annual income in 2003 to his present income. This exercise presents with a number of difficulties. Specifically,
− there is a substantial difference between $350,000.00 and $500,000.00 which is the range on which the $7,000.00 monthly spousal support order was determined in 2003;
− there are significant differences from year to year;
− should the fact that the Respondent is not now paying child support impact on his ability to pay spousal support?
[36] The Court finds that a fair and reasonable comparison can be achieved by averaging the Respondent’s annual income for 2004, 2005 and 2006 which is identified as the period when the original order was made and comparing same to his average income for 2011, 2012 and 2013 which is the period when a variation is sought. As already indicated, 2003 is not seen as reflective of actual income for support purposes. In the end, the relevant average incomes are as follows:
− 2004, 2005, 2006 $420,303.33
− 2011, 2012, 2013 $270,153.00
[37] The Respondent’s position is that his income for spousal support purposes should be measured by his $200,000.00 base salary with Rite-Pak. His view is that the annual bonus is discretionary so that it should not be considered.
[38] The Court rejects this position. The evidence shows that he has received this annual bonus every year. The probabilities are that this will continue. The Court cannot base a decision in the context of such a motion on events which may not happen.
[39] Based on an average income of $420,303.33 (when order was made) and total support of $9,100.00 for both child and spousal, 26% of the Respondent’s income went towards support, 20% for spousal ($7,000.00) and 6% for child ($2,100.00).
[40] Based on an average income of $270,153.00 (which is when variation is sought), spousal support in the amount of $7,000.00 monthly means that 31% of the Respondent’s income would go towards spousal support.
[41] The Court is of the view that such an increase in the proportion of the Respondent’s income which would go to spousal support (from 20% to 31%) is significant enough to amount to a material change in circumstances. The loss of employment with Dominion Citrus and the subsequent reduction in income could not have been foreseen when the order was made in 2003. The present income is substantially outside of the $350,000.00 to $500,000.00 range agreed upon by the parties and ordered by the Court. The Court finds that this change in the Respondent’s means to pay spousal support is not trivial. Nor is it seen as temporary. The probabilities are that the spousal support order of $7,000.00 per month would have been lower based on the present reduced income.
What is the appropriate variation?
[42] The Court must now decide what variation, if any, of the existing order ought to be made in light of the material change in circumstances. The Court is reminded that this exercise is not an appeal nor a de novo hearing. It is limited to making the appropriate variation which is justified by the change.
[43] What are the present and relevant conditions, needs, means and circumstances of the litigants which impact on the variation order?
[44] The Applicant is 61 years old. She has been mostly unemployed since her marriage to the Respondent and their subsequent separation in 1994. She readily admits not having sought work after the 2003 final order. She describes herself as a “stay at home mom” during the cohabitation. Accordingly, she never pursued a career.
[45] She identified a number of physical and mental ailments which have impacted on her ability to be gainfully employed. She is on medication for anxiety and describes herself as being mentally exhausted. She states being drained by this litigation which has been ongoing since the separation in 1994. She has gone through a number of surgeries for her hand.
[46] She paints a fairly bleak picture of her financial situation. Her only sources of income are spousal support and $270.00 monthly from C.P.P. She is heavily indebted as evidenced by her financial statements filed in these proceedings. The last such statement sworn on August 14, 2013, suggests indebtedness of $355,157.00. She has drained all of her R.R.S.P.’s to pay ongoing expenses.
[47] She testified that she is struggling to make ends meet. She is being sued in Small Claims Court. She is in arrears on both her property taxes and income taxes. She has no money in the bank.
[48] The Applicant’s evidence is that she has dedicated most of her time, energy and resources to their son Stephane who was born in 1988. The evidence would suggest that there have been a number of issues with Stephane most of which were academic. In later years, he was diagnosed with A.D.H.D. and learning disabilities. These were ultimately properly managed through medication. Much to his credit, Stephane is now a certified dental hygienist.
[49] Exhibit 18 filed by the Applicant purports to detail the expenses incurred by her from 2010 to July 2012 for Stephane’s care and post-secondary education. The amount claimed is $148,361.07.
[50] The Respondent is 63 years of age. He resides in Richmond Hill, Ontario. He has been in a common-law relationship with his present spouse, Christine, since 1995. She is a dental assistant and earns approximately $49,000.00 per year.
[51] The evidence shows that he has been financially successful as shown by his income during the last years. In 2009, Dominion Citrus terminated his employment on alleged just cause for breach of trust. He has since brought a suit for wrongful dismissal which is still before the Court. The trial is expected for November 2014. His average income with his new employer Rite-Pak for the last three years has been $270,153.00. He has limited benefits and no pension plan.
[52] He testifies having been solely responsible for financially supporting Marc who is the other child of the marriage. He admits not having contributed to Stephane’s post-secondary expenses but explains that he was never asked. He recalls receiving a telephone call from Stephane in 2009 and being asked for money. He would have told Stephane that he wished to meet with him to discuss a budget. He testifies having received a call from Stephane who requested the same amount the Applicant was receiving as child support for him. The next he heard of post-secondary expenses for Stephane was in 2013 once he had completed the dental hygienist course.
[53] The Respondent describes a number of health concerns. He has high blood pressure, high cholesterol, borderline diabetic, stress and low energy level.
[54] He works long hours six days a week. He is required to take on more responsibilities. He states feeling trapped. He is unsure how long he can sustain the present situation. He needs to plan for his retirement if expected to maintain support.
[55] In cross-examination, he agrees with the suggestion that the moves during cohabitation were to accommodate his career and that the Applicant is the parent who mostly took care of the children. The Applicant worked sporadically.
[56] He testified that there was nothing preventing her from working. That she attended a university in Toronto prior to separation looking to upgrade her skills. He sees no reason why she didn’t upgrade her skills following separation. He notes that she worked as a massage therapist but doesn’t know to what extent.
[57] He states that the intent behind the 2003 order was to allow the Applicant to be debt free. He was never provided any explanation as to why the Applicant’s debt load is so significant.
[58] Based on the four factors set out in paragraph 17(7) of the Divorce Act noted earlier, the following considerations are found to favour the Applicant’s position:
− the parties cohabited for a period of 21 years;
− the Applicant was the stay at home parent who took care of the children while the Respondent’s career flourished;
− the family moved on a number of occasions to accommodate the Respondent’s career;
− she is presently 61 years of age and has little, if any, prospect for employment;
− her only sources of income are spousal support and $270.00 monthly form C.P.P.;
− she is highly indebted;
− since 2010, she has invested most of her time, energy and resources towards their child Stephane who has A.D.H.D. and learning disabilities;
− the Respondent has not shared in Stephane’s post-secondary expenses;
− the Applicant has physical and mental ailments;
− the Respondent has significant employment income and assets;
− he is not supporting his common-law spouse Christine nor any children;
− it is not realistic to expect that the Applicant will become even partly self-sufficient.
[59] The following considerations are seen as favouring the Respondent’s position:
− the parties have been separated for 20 years;
− he is 64 years of age and nearing retirement;
− he also identifies a number of physical and mental health concerns;
− his present income does not allow for the providing of the same spousal support;
− he has been in a new relationship since 1995;
− the Applicant should be financially sound since she was made to be “debt free” through the 2003 order;
− there is little evidence to explain why she did not find and maintain employment following the 2003 order;
− the Respondent solely supported Marc who is the other child of the marriage;
− it is not realistic to expect that the Respondent is able to pay off the Applicant’s present debt load.
[60] The Applicant has suggested that the Court consider the Spousal Support Advisory Guidelines in setting the amount to be paid by the Respondent. The application of these Guidelines would mean a monthly spousal support order in the range of $6,753.82 to $9,005.00 based on an average income of $270,153.00 for the Respondent. While these numbers provide some guidance, they are seen as excessive in this matter. As already noted, the Guidelines must be looked at with caution in cases of variations.
[61] Having considered all of the circumstances, the Court is of the view that the spousal support order should mirror the same support/income ratio provided for in the 2003 final order.
[62] As already noted, the 2003 final order provided for a 26% ratio. So that the Respondent is to pay 26% of his average income which has been set at $270,153.00 as spousal support. The monthly spousal support is set at $5,850.00.
[63] On February 22, 2010, based on Minutes of Settlement filed by the parties, Justice Lafrance-Cardinal made the following interim order:
“2(a) Without prejudice to either party spousal support of $7,000.00 payable by the Respondent to the Applicant pursuant to the order of the Honourable Justice Ingram dated October 17, 2003 is varied to $5,000.00 per month with such variation being effective as of January 2, 2010. Spousal support of $5,000.00 per month is based on the Respondent’s disclosed employment income of $150,000.00 per year and reference to the Spousal Support Advisory Guidelines.”
[64] The end result of the Court’s decision is that the Applicant has been underpaying spousal support at a rate of $850.00 per month from January 10, 2010 to July 1, 2014. These arrears amount to a lump sum of $46,750.00.
Retroactive post-secondary expenses
[65] The parties to this Motion agreed that the Court should rule on the issue of whether the Respondent should pay his share of the expenses relation to Stephane’s dental hygienist course. However, in her written submissions, counsel for the Respondent submits that the Court has no jurisdiction to award a retroactive amount for child support since no claim was made for same while Stephane was a child of the marriage. She further suggests that in the absence of an obligation to pay child support, there is no obligation to contribute to post-secondary expenses. She then concludes that the court will likely quantify an amount to which the Respondent should have contributed and that he is not opposed to making some contribution.
[66] The Applicant’s claim for retroactive post-secondary expenses raises a number of legal and factual issues. There is some confusion as to how this claim was introduced in this hearing based on a Motion to Vary spousal support.
[67] The continuing record shows that the Applicant had brought a Motion to Vary in 2006 seeking child support and section 7 expenses for Stephane who had now returned to her care in the Cornwall area. He was now 18 years old. This issue was litigated up to February 22, 2010 and resulted in temporary orders whereby the Respondent was ordered to pay child support and extraordinary expenses for Stephane.
[68] On January 24, 2010, the Respondent swore a Response to Motion to Change requesting the reduction of spousal support which is the subject matter of present proceedings.
[69] Based on Minutes of Settlement, on February 22, 2010, Justice Lafrance-Cardinal issued a final order on the question of support for Stephane and a temporary order on the question of spousal support.
[70] This final order provided for the dismissal of all claims for child support for Stephane by either party for the period prior to October 31, 2009.
[71] Paragraph 1(c) of the said order states the following:
“1 (c). In the event Stephane continues his post-secondary education and successfully completes two courses in a semester or one course in a semester if it is so recommended by Dr. Jeanine Scott, the obligation of the parties to support the child shall revive and the parties shall support the child retroactive to the start of the semester in accordance with the Child Support Guidelines. The recommendation from Dr. Scott will be made after the Respondent has been advised in advance of the information to be conveyed to Dr. Scott and has an opportunity to have input with Dr. Scott.”
[72] This provision was obviously in response to the Respondent’s concerns in regards to Stephane’s willingness and ability to pursue post-secondary education. The Court accepts that these concerns were well founded. It would appear that Dr. Scott’s involvement in deciding whether Stephane should pursue post-secondary education was a means to unsure that any such venture was reasonable in light of past failures. The Respondent’s input with Dr. Scott was an added safeguard.
[73] The Court is mindful that the evidence is silent as to whether Dr. Scott recommended that Stephane attend the dental hygienist course. Exhibit 17 tab 6 suggests that Dr. Scott was involved in Stephane attending the College in Toronto. A report signed by the program coordinator dated December 20, 2010, refers to having received recommendations from Dr. Scott with Stephane.
[74] The Court is also mindful that the Respondent’s input to Dr. Scott was never sought as set out in the order.
[75] The essence of the term agreed upon by the parties is that the obligation to pay support was to be triggered by Stephane successfully completing at least one post-secondary course. The terms of the order are:
− the obligation of the parties to support the child shall revive and,
− the parties shall support the child retroactive to the start of the semester in accordance with the Child Support Guidelines.
[76] So that the Court rejects the Respondent’s position that the Court lacks jurisdiction to deal with the issue of post-secondary expenses for Stephane. The obligation is grounded on the terms set out by Justice Lafrance-Cardinal which reflected Minutes of Settlement signed by the parties. It is a recognition of Stephane’s entitlement to such support and a corresponding obligation on his parents. The more difficult issue is how much should the Respondent be ordered to pay?
[77] The Applicant’s evidence at trial was that the total expenses for Stephane from 2010 to July 2012 are $148,361.07 as set out in Exhibit 18:
[78] The Respondent’s position is that the amount claimed by the Applicant is excessive and unrelated for the most part, to Stephane’s post-secondary education. He challenges claims for clothing, entertainment, health, lodging, miscellaneous, vehicle and credit card fees.
[79] The Respondent’s view is that a reasonable amount for Stephane to incur to attend his course of studies is $59,957.00. He proposes that his share should be $25,000.00 by reason of:
− The late notice of the claim;
− The lack of input;
− The inability to contribute periodically from income;
− The unavailability of an opportunity to review his spousal obligation.
[80] The Respondent relies on his 2011 income to suggest that his monthly child support obligation according to the Guidelines during the relevant period would have been $1,997.00. Over the 20 months, he would have had to pay the sum of $39,940.00 in child support. He also suggests that post-secondary education costs are an extraordinary expense and that the definition of “extraordinary expense” set out in paragraph 7(1.1) of the Guidelines should apply in terms of the amount the parent would receive under the applicable table.
[81] The Court notes that “expenses for post-secondary education” are not “extraordinary expenses” under section 7 of the Guidelines as suggested by the Respondent in his submissions. The only two expenses who are qualified as “extraordinary” under section 7 are “expenses for primary or secondary school” and “expenses for extracurricular activities”.
[82] What then is a reasonable amount to be paid retroactively by the Respondent for Stephane’s post-secondary education expenses which were paid by the Applicant?
[83] The Court’s first task is to identify the expenses set out in Exhibit 18 which properly qualify as “post-secondary education expenses”.
[84] There has to be some relationship between the expense and education. This relationship is measured by a reasonable necessity which allows for the pursuance of the education program. While common sense and logic would, in large part, dictate this relationship, the Court cannot speculate and the evidentiary burden rests on the party claiming such support.
[85] The evidence discloses that Stephane’s dental hygienist program started in November 2010 and was completed in July 2012. In fact, Stephane testified that prior to starting this program, he was working on a full-time basis.
[86] The Applicant is claiming $50,111.72 for 2010. The reality is that Stephane was not attending school for most of 2010. So that there is no relationship between most of these expenses and post-secondary education. There is no basis in law for such a claim.
[87] The Applicant is claiming a total of $10,855.82 under the heading of “miscellaneous” from 2010 to July 2012. There is no evidence to detail the expenses which would fall in this category. As indicated, the Court cannot speculate.
[88] The claim for $965.33 is also dismissed by the Court. The evidence is that this expense relates to a trip to Calgary by Stephane to visit his girlfriend.
[89] The following expenses set out in Exhibit 18 are seen as being related to Stephane’s post-secondary education:
− Clothing
− Entertainment
− Food
− Gas
− Health
− Lodging
− School
− Utilities
− Vehicle
[90] The next issue for the Court is to determine a reasonable amount for such expenses.
[91] The Respondent agrees with the following amounts:
− School: $ 7,810.46
− Food: $10,000.00
− Gas: $ 4,340.00
− Utilities: $ 4,757.42
− Lodging: $33,050.00
TOTAL: $59,957.88
[92] The Court finds that the amounts are reasonable. However, the Court’s view is that the following amounts should be included:
− Clothing: $ 1,800.00
− Entertainment: $ 800.00
− Vehicle: $ 3,500.00
TOTAL: $ 6,100.00
[93] The Court is in agreement with the Applicant in regards to the $12,380.54 claim for “health” related expenses. The Applicant’s income tax returns shows the following claims for Stephane’s medical expenses:
− 2010: $ 349.10
− 2011: $ 1,613.85
− 2012: none
[94] The Court also notes that health related expenses do not qualify as “post-secondary education expenses” under section 7 of the Guidelines. In fact, “health-related expenses” are identified as a separate basis for section 7 special expenses.
[95] Therefore, the Court’s conclusion is that $66,057.88 is found to be a reasonable amount to be claimed as post-secondary education expenses.
[96] The last question for the Court is the proportion to be paid by the Respondent. In coming to a conclusion on this issue, the Court has considered the following:
− The expenses were necessary in relation to Stephane’s best interests;
− The expenses are seen as reasonable in relation to the means of the parties;
− The family’s spending pattern and lifestyle prior to the separation;
− The fact that the Applicant delayed in requesting financial support from the Respondent and the financial burden which stems from this delay;
− The Respondent’s average income and the Applicant’s imputed income for section 7, provides for the following proposition:
➢ Applicant: 25%
➢ Respondent: 75%
− The fact that Stephane benefited from bursaries;
− The fact that Stephane worked prior to attending the program and could have contributed to the expenses;
− The unfortunate fact that there has been no relationship between Stephane and the Respondent;
− The fact that the Respondent was never provided the opportunity of speaking to Doctor Scott as set out in Justice Lafrance-Cardinal’s order.
[97] The Court finds that the Respondent should pay 65% of the $66,057.88 post-secondary expenses which is $43,598.00.
[98] The Court is mindful of the negative impact caused by the Applicant’s delay in claiming support for Stephane. The Court is allowing for a period of 12 months to pay this lump sum.
CONCLUSION
[99] The Court makes the following final order:
Starting January 1, 2010, the Respondent shall pay the Applicant on the 1st day of each month spousal support in the amount of $5,850.00;
The amount of spousal support is based on an average income of $270,153.00 for the Respondent;
The arrears in spousal support for the period of January 1, 2010 to July 1, 2014 are set at $46,750.00. These arrears shall be paid on or before August 1, 2015 and shall bear an annual interest rate of 3%;
The Respondent shall pay the Applicant the sum of $43,598.00 as retroactive post-secondary education expenses for their child Stephane Lavergne, born July 15, 1988. This sum is to be paid on or before August 1, 2015 and shall bear an annual interest rate of 3%;
Unless the order is withdrawn from the Director of the Family Responsibility Office, it shall be enforced by the Director and the amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed. The Court makes a support deduction order;
The parties are asked to resolve the issue of costs. If unable to do so, brief written submissions should be filed with the Court on or before August 29, 2014.
Justice Ronald M. Laliberte Jr.
Released: July 28, 2014
COURT FILE NO.: 06-1012
DATE: 2014/07/28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Vivianne Jeannine Allaire (Lavergne)
Applicant
and
Jacques Louis Lavergne
Respondent
REASONS FOR JUDGMENT
Justice Ronald M. Laliberte Jr.
Released: July 28, 2014