ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-10-408-1
DATE: 20141202

BETWEEN:

GERARD BAETENS
Applicant

– and –

SUSAN ARTHURS
Respondent

Self-Represented

Self-Represented

HEARD: September 26, 2014

REASONS FOR DECISION

Beaudoin J.

[1] The Applicant brings this Motion to Change and terminate the spousal support ordered by Justice Polowin on November 2, 2012. That Order was made on consent and pursuant to the terms of a settlement.

[2] In her Answer and her own Motion to Change, the Respondent seeks to increase the amount of spousal support and also seeks an order granting her sole custody in place of the parallel parenting regime currently in place. She also seeks an adjustment of the child support be paid and claims arrears of s. 7 expenses.

Background

[3] This motion was commenced on February 20, 2014 and was finally heard on September 26, 2014. The parties have agreed to refer the custody and access issues to a parenting coordinator. Ongoing spousal support, recalculations of child support and the children’s s. 7 expenses are the main issues on this Motion. My decision on the spousal support issue will affect the child support calculations and the proportionate share of s. 7 expenses.

[4] The parties were together for about 13 years and separated in December 2009. They were never married. They have two children; Noah Arthurs, born December 27, 2000 and James Arthurs, born October 27, 2006. The Applicant is employed as a full-time director with the federal public service of Canada. The Respondent is currently a part-time high school science teacher. The Applicant first seeks a retroactive child and spousal support order to correct overpayments he claims he made from January 2012 to the end of August 2013. The Applicant also asks that I impute income to the Respondent in the amount of $88,308 and that spousal support be terminated commencing September 2013. He then seeks a recalculation of child support and a credit for all overpayments made from September 2013 to the present date.

The spousal support issue

[5] The relevant portions of Justice Polowin’s Order are set out in paragraphs 11, 12, 13 and 14:

11. Gerard will pay Sue spousal support in the mid-range of the spousal support advisory guidelines being the sum of $976 per month, commencing October 1, 2011, based on the party’s income stated above ($121,000 for Gerard and $52,363 for Sue).

12. In the event that Sue finds full-time employment that she shall advise Gerard immediately.

13. In the event that Sue has not obtained full-time employment by September 15, 2013 then Gerard may seek a review of Sue’s spousal support that time.

14. Spousal support may be changed if there is a material change in circumstances, even if the change was foreseen or foreseeable. The change may be:

i. in either party’s financial position,

ii. in the child support arrangements,

or in any other similar change.

[6] Three volumes of materials have been filed on the motion. These are over and above the extensive materials filed in the previous proceedings. It is apparent from both the content and the extent of the materials, that the degree of conflict between the parties on financial and parenting issues remains very high.

[7] The Applicant’s income is comprised of a base salary of $123,000 with discretionary annual gross bonuses that vary year to year. He estimates his income for 2013 to be $133,000.

[8] The Respondent has been an employee of the Ottawa Carleton District School Board (“OCDSB”) for approximately 20 years. She has been employed at Glebe Collegiate Institute (“CGI”) for the majority of that time. Following the birth of each of the boys, the Respondent took an extended maternity leave of four years; most of this time was unpaid leave. This is a point of contention between the parties. The Applicant maintains that this was a unilateral choice made by the Respondent. The Respondent maintains that this plan was agreed to by the parties.

[9] The Respondent returned to work on a part-time basis in September 2010. The Applicant maintains that the Respondent can return to work on a full-time basis and that her part-time employment is a matter of choice. Both children are in school full-time and both families have access to pre and post school care. (The Applicant remarried in January 2013)

[10] The Applicant further alleges that the Respondent is living in a “common law” relationship with Mike Bellavy, another teacher. For the period of March 29, 2013 to May 1, 2013, the Applicant conducted surveillance of the Respondent’s home on 33 consecutive calendar days and has taken no less than 22 pictures of Mr. Bellavy’s car parked at her home.

[11] His main complaint is that the Respondent has not made a genuine effort to work full-time and that she has submitted no proof that she has submitted annual requests to increase her timetable to full-time; whether that would be for positions at CGI or by showing an openness to other opportunities at other schools. He complains that the evidence of her efforts is limited to five applications; all submitted in June 2013. He argues that the Respondent’s applications have been limited to requests to work at a part-time schedule at another school while keeping her part-time schedule at CGI. He submits that she should make applications for full-time positions anywhere within the OCDSB and that she has not.

[12] He relies on the Spousal Support Advisory Guidelines issued by the Department of Justice which advise that a court can impute full-time income to someone who is not made “wholehearted” efforts to find income. He also relies on s. 19 of the Guidelines.

[13] He also indicates that he was able to identify approximately 50 educational teaching opportunities available in the Ottawa area according to a current job search that he made in August 2013. He claims that the Respondent has made her personal vendetta against him her full-time job.

[14] The Respondent replies that she currently earns $59,169.07 per year effective January 30, 2014. She notes that the Applicants’ claim for a retroactive variation and overpayment of spousal support is based on a flawed interpretation of her income for 2012. The sum reported at line 150 of her tax return, namely, $68,627, includes the amount of spousal support received by her. The Applicant concedes this point but nevertheless, maintains that the salary of a full-time teacher should be imputed to the Respondent as of September 2013.

[15] She explains that she took three years of unpaid leave from her employment when their first child, Noah, was born in December 2000. She describes Noah as being a special-needs child who was asthmatic. When Noah began kindergarten, Susan returned to teaching at a reduced work schedule. Following the birth of the couple’s son, James, in October 2006, Susan began another maternity leave and, as she had done with Noah, took unpaid leave returning to work part-time in September 2010.

[16] Susan maintains that it was agreed by the parties that she would become the children’s primary caregiver and that she would subordinate her career to her duties as a housewife and mother. While Susan was off work, she contributed to family operating costs through earned income from home schooling contracts, tutoring and personal investment withdrawals.

[17] Susan maintains that when she returned to work, a part-time designation was the only work available to her. She maintains that she has been unsuccessfully applying for full-time work since 2012; prior to the settlement of this case.

[18] Susan sets out that her employment is governed by a Collective Agreement. Pursuant to the Agreement, when a teacher takes time off work, for example; unpaid leave to raise a child, the teacher does not lose the seniority that they had, but they do not acquire any more seniority until they return to work. As she explained it, seniority has two primary impacts on any teacher, the first being their placement on the salary grid, and the second being job security within the teachers “home school.”

[19] With respect to income, a teacher reaches the maximum pay scale in their job after they have 10 years seniority. The Respondent maintains that if she had not left her job to raise the children, she would have reached her maximum pay scale by 2007. She calculates her salary losses as a result of her absences from work to amount to $153,903. She also claims an additional monetary loss of $49,930.89 in the value of her pension, solely attributed by her time away from work.

[20] The Respondent maintains that this loss of seniority has also resulted in the loss of job security. When she returned to teaching in 2010 part-time, she was teaching two classes instead of three. Teachers are considered full-time when they teach three classes and part-time when they teach two. The Respondent maintains that she has followed each and every step recommended by the school board in order to secure full-time employment.

[21] Those steps, for teachers, are to make internal applications with the OCDSB and to notify one’s home school principal of one’s intention to return to full-time work. The Respondent has done this and has filed evidence of the steps taken in 2012, 2013 and 2014 with the Court.

[22] The Respondent points out that seniority is a paramount consideration in obtaining security in a full-time position. School seniority, in the Respondent’s case, dates from 1997, but that relates only to her home school. It is her evidence that there have been no openings at CGI and she has filed letters from CGI to that effect.

[23] The Respondent maintains that in an effort to increase her teaching time back to 100%, she has expanded her search for partial contracts with other schools within the OCDSB outside of her home school. She points out that there is a further difficulty in attempting to acquire a teaching assignment of one class at another school. If she does so, she is not allowed to accept any teaching assignment that conflicts with her current scheduling at her home school.

[24] She argues that if she applies for a full time position outside of her home school, she loses all current school seniority and she will have less school seniority than any teacher at that new school applying for either full-time employment or applying to teach a particular class that she may be applying to teach. She adds that in any event, there have been very few new hires in the entire OCDSB for full-time employment since 2012 and, in the past two years, there have been none in science.

[25] She has supplied an e-mail response from her Human Resources Department and the vacancy list of June 2013 as an example. She has offered proof that she has applied for each available position that would increase her contract but which would not displace her outside of CGI. There were two such positions made available in June 2012 and four such positions made available in June 2013. She unsuccessfully applied to them all.

[26] As for the Applicant’s evidence of over 50 teaching positions for which the Respondent could apply, the Respondent responds that these positions would either pay her less than her current part-time salary and, in addition, would require her to give up all her current pension, seniority and employment benefits. Other positions the Applicant identified are for jobs for which the Respondent has no qualifications or experience.

[27] In so far as private tutoring is concerned, the Respondent admits that she did provide these services while she was at home full-time looking after the boys. Nevertheless, she indicated that she felt that it was a “conflict of interest” for her to look for such employment while she was employed with the OCDSB. In any event, she said that the amount that she earned was minimal; less than the amount of the personal exemption allowed under the Income Tax Act, RSC 1985, c 1 (5th Supp) and therefore, the income was never reported.

[28] As for her relationship with Mike Bellavy, the Respondent admits that she is dating him. They have not lived together and they have no intention of living together. Mr. Bellavy has only one parking spot at his apartment. He has a car and a motorcycle. The Respondent states she is simply allowing Mr. Bellavy to park his car or motorcycle at her home so that he would not have to otherwise rent an additional parking spot.

The Law

[29] Section 19(1)(a) of the Child Support Guidelines, O. Reg. 391/97 provides:

19. Imputing income.

(1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

(a) the parent or spouse is intentionally underemployed or unemployed, other than where the underemployment or unemployment is required by the needs of any child or by the reasonable education or health needs of the parent or spouse;

[30] Both parties have relied on the decision in Drygala v. Pauli (2002), O.R. (3d) 711 (Ont. C.A.) In that case, the Court of Appeal interpreted Section 19(1)(a) of the Guidelines as providing a test of “reasonableness”.

[31] In a later case, namely, Homsi v. Zaya 2009 ONCA 322; 248 O.A.C. 168, the Court of Appeal added that the onus is on the person alleging intentional underemployment to establish that the other parent or spouse is intentionally unemployed or underemployed. The person requesting an imputation of income has to establish an evidentiary basis upon which this finding can be made.

[32] Section 33(8) and 33(9) of the Family Law Act. R.S.O 1990, c. F.3 (“FLA”) reads as follows:

Purposes of order for support of spouse

(8) An order for the support of a spouse should,

(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;

(b) share the economic burden of child support equitably;

(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and

(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).

Determination of amount for support of spouses, parents

(9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,

(a) the dependant’s and respondent’s current assets and means;

(b) the assets and means that the dependant and respondent are likely to have in the future;

(c) the dependant’s capacity to contribute to his or her own support;

(d) the respondent’s capacity to provide support;

(e) the dependant’s and respondent’s age and physical and mental health;

(f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;

(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;

(h) any legal obligation of the respondent or dependant to provide support for another person;

(i) the desirability of the dependant or respondent remaining at home to care for a child;

(j) a contribution by the dependant to the realization of the respondent’s career potential;

(l) if the dependant is a spouse,

(i) the length of time the dependant and respondent cohabited,

(ii)the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,

(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,

(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,

(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support,

(vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and

(m) any other legal right of the dependant to support, other than out of public money.

[33] Section 37(2) of the FLA addresses the powers of a court on variation application:

Powers of court: spouse and parent support

(2) In the case of an order for support of a spouse or parent, if the court is satisfied that there has been a material change in the dependant’s or respondent’s circumstances or that evidence not available on the previous hearing has become available, the court may,

(a) discharge, vary or suspend a term of the order, prospectively or retroactively;

(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c) make any other order under section 34 that the court considers appropriate in the circumstances referred to in section 33. 1997, c. 20, s. 6; 1999, c. 6, s. 25 (12); 2005, c. 5, s. 27 (16).

Analysis

[34] The Applicant’s claim of 50 other available jobs was obtained by typing the words “full-time teacher” into a computer search engine. The Respondent has demonstrated that none of these are suitable and many would pay less than what she now earns. Nothing can be made of the Respondent’s relationship with Mr. Bellavy and it is irrelevant. I accept the Respondent’s evidence that they are not living together.

[35] I am satisfied on the evidence before me that the Respondent has made reasonable efforts to increase her hours of work. She first sought additional hours at her home school and has now expanded that search to other schools. As noted, this presents additional problems since those additional hours have to be integrated with her existing schedule at CGI. While she has provided satisfactory evidence of these efforts, she has not provided evidence of any application for full- time positions at other schools.

[36] I can understand why she would like to retain her home school position; and while she would lose her seniority at CGI if she applied for a full-time position at another school, she would not lose her seniority within the OCDSB. It may mean that she would be displaced from time to time and that she may have to combine two positions at two different schools. She must take those additional steps to seek full-time employment.

[37] The fact remains that her evidence that there have been no full-time positions for science teachers anywhere within the OCDSB in the past two years is unchallenged. That being said, I find her efforts to increase her hours of employment have been reasonable to date.

[38] Nevertheless, I find the Respondent’s explanations about her refusal to seek additional employment through tutoring to be unsatisfactory. She could supplement her income in this fashion. She has the time to devote as a volunteer in the boys’ school. For that reason, I will impute an additional $10,000 per annum to her on that basis effective January 1, 2014.

The Respondent’s Claims

[39] The Respondent claims arrears of support payments, and in particular, arrears with respect to s. 7 expenses. Her calculations go back to the year 2010. Justice Polowin’s Order addressed the issues of s. 7 expenses and outstanding child spousal support claims. Paragraph 3 provides:

3. The parties will share, pursuant to s. 7 of the Guidelines, the children’s special or extraordinary expenses as follows:

a. Noah’s and James’ daycare (before school) expenses,

b. James’ after school care,

c. Noah’s scouting activities of $550 per annum, and

d. The children’s costs of playing hockey.

[40] The Order provided a requirement of the parties to consent in advance to incurring additional, special or extraordinary expenses and required the exchange of information on an annual basis.

[41] Paragraph 19 and 20 detailed the Respondent claims for outstanding dental benefits, for counselling and medical claims. At that time, the dental claims totalled $698 and the other claims totalled $7259.10. The Applicant was directed to process those claims and provide any reimbursement to the Respondent.

[42] Paragraph 23 of the Order is important. It provides:

Gerard has made claims related to Sue’s property, including Sue’s property on Avondale Avenue in Ottawa and related to a cabin property owned by Sue in the province of Québec. In full and final satisfaction of each party’s claims related to property, including but not limited to the Avondale property and the cabin property, and in satisfaction of Sue’s claims for adjustments to child and spousal support and reimbursement of medical dental expenses for the period ending December 31, 2011, Sue will pay Gerard the lump sum of $67,000.

[43] In my view, Justice Polowin’s Order accomplished two things: First, it identified what would be recognized as s. 7 expenses. Second, it dealt with all claims for child support adjustments and all other reimbursement of medical dental expenses for the period ending December 31, 2011. I conclude that the Respondent cannot try to recover any payments prior to November 22, 2012 other than those set out at paragraph 19 and 20.

[44] I have examined the list of expenses for 2013. I noticed that there are minor items for school field trips or other school expenses which cannot be considered “special” or “extraordinary” and I would not allow these:

• School and Summit $60
• School music James: $4
• School music James: $4
• Noah’s saxophone $523.18
• School field trip James: $7
• School Noah $48
• School field trip $10
• School field trip $15
• School James $6

[45] To offset these claims, the Applicant claims that he did not receive the full amount owing pursuant to paragraph 23 of Justice Polowin’s Order and claims that the Respondent owes him $284.28. That claim is outside the scope of his Motion to Change and the Applicant agreed not to pursue it.

[46] With regard to the outstanding dental claim in the amount of $618, the Applicant says he received a benefit of $442.34 which he agrees to pay to the Respondent. As for the counselling and medical claims referred to in paragraph 20, he maintains that the Respondent had actually submitted a total claim of $14,041.85. He reports that the medical expenses for 2010 were not eligible for reimbursement as they had to have been submitted by the end of December 2011. As for the prescription claims, the plan provided benefit deductions at the source and so the Applicant maintains that the Respondent already got the benefit of the plan at the time the prescription was paid. For example, the total cost of prescriptions for Noah during 2011 and 2012 was for $771.47. The Respondent was only required to pay $353.27.

[47] The Applicant has provided evidence that he has submitted all eligible claims before the end of December 2012. With respect to the dental claims, the benefit he received was $2021.82 which was paid to the Respondent. With respect to the medical claims, he received a benefit which he paid to the Respondent.

[48] The Respondent incurred expenses with respect to the purchase of the saxophone and for registering Noah for soccer. The Applicant did not agree to these items and has provided some basis for his refusal. It is all a part of the problematic parenting regime that is in place. I decline to order the Applicant to pay for any s. 7 expenses other than those set out in the Order of November 22, 2012. Hopefully, with the assistance of the parenting coordinator, a revised schedule of activities for the boys can be agreed to.

[49] In summary, I grant the Applicant’s Motion to Change in part. Generally, annual recalculations of support obligations apply to child support only. Variations of spousal support require a material change in circumstances. In this case, the consent order provided for a review of spousal support in September of 2013. In the context of this present Motion to Change, I conclude that a recalculation of spousal support at the agreed to mid-range level is possible. Any further review will require a material change in circumstances.

[50] I will impute additional income to the Respondent in the amount of $10,000 effective January 1, 2014. By the same token, the Applicant’s own income has increased to $133,000 for 2013 so the net amount of spousal support at the mid-range level may not change much. The parties have demonstrated that they are very capable of providing detailed calculations of spousal support, child support and proportionate share of s. 7 expenses and I expect them to do so in this case. If necessary, they can return to the Court for further assistance.

[51] The Respondent is to provide the Applicant with proof of her application for all full-time science positions available throughout the OCDSB. She is to advise the Applicant if she is successful in obtaining full-time employment; whether this is through a combination of positions or one full time position. Section 7 expenses remain limited to those set out in Justice Polowin’s Order. The parties are expected to revise their calculations with respect to their contribution of the items limited to that list. Many of the items claimed by the Respondent are for ordinary, day-to-day expenses incurred by both parties while the children are in their care.

[52] For guidance, hockey expenses are limited to big items such as the cost of hockey registration skates and equipment and do not include claims for incidental expenses such as laces and skate sharpening. Similarly, with respect to Scouts, expenses should be limited to registration and uniforms and the cost of participating in field trips or other activities where the fee is in excess of $50.

[53] Given the mixed success, I decline to make any order as to costs.

Mr. Justice Robert N. Beaudoin

Released: December 2, 2014

COURT FILE NO.: FC-10-408-1
DATE: 20141202

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

GERARD BAETENS
Applicant

– and –

SUSAN ARTHURS
Respondent

REASONS FOR decision

Beaudoin J.

Released: December 2, 2014