ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-07-6891M
DATE: 20141215
BETWEEN:
L.J.
Ms G. McClelland, for the Applicant
Applicant
- and -
P.J.
Mr. I. Robertson, for the Respondent
Respondent
HEARD: December 12, 2014
REASONS FOR DECISION ON MOTIONS
Conlan J.
I. INTRODUCTION
[1] To trace, in detail, the long and litigious history of this proceeding would only serve to make the reader become depressed and cause the parties to feel a great deal of regret. I will spare the reader and the parties those feelings. The following will suffice in terms of understanding the background.
[2] The parties started living together in August 1997. They were married in January 2000. They separated for the first time in February 2007. They briefly reconciled in December 2010 and then separated for the last time in January 2011.
[3] There are four children in the family unit, currently aged 21, 16, 13 and 11 years.
[4] The Applicant wife (“L.J.”) commenced her Application in November 2007. That is correct – more than seven years ago. The matter has yet to be set down for trial. That ought to be done as soon as possible.
[5] On December 14, 2007, O’Connell J. made a Temporary Order which required the Respondent husband (“P.J.”) to pay $1283.00 per month in child support, plus $400.00 monthly towards section 7 Guidelines expenses, plus $2000.00 per month in spousal support. Those awards were based on an attributed total annual income for P.J. of $60,000.00.
[6] It was a relatively comfortable arrangement for the wife. That may explain why the matter stalled in the Temporary Order stage.
[7] In mid-December 2010, the parties signed an agreement (a Memorandum of Understanding which served, essentially, as a prelude to Minutes of Settlement or a Consent which could, in turn, be stamped for approval by the Court).
[8] The agreement included a plan to reconcile. The reconciliation, however, lasted only a few weeks. After much delay and procedural wrangling between the parties, certain components of the agreement were enshrined in a Final Order made on April 25, 2014.
[9] Meanwhile, the wife remarried in October 2011.
II. THE MOTIONS
[10] There are three Motions before me.
[11] The first in time, originally returnable in December 2011 (believe it or not), is brought by P.J. He seeks (i) to terminate the spousal support and section 7 expenses provisions ordered by Justice O’Connell and (ii) to vary the child support term.
[12] The second, also brought by the husband, seeks (i) to terminate the spousal support provision and (ii) to vary the child support and section 7 expenses terms ordered by O’Connell J.
[13] The third, brought by L.J., seeks to determine the arrears owing by the husband for child support, section 7 expenses and spousal support. Further, the wife requests that P.J. pay ongoing child support in the amount of $1885.00 monthly, plus 79% of section 7 expenses, plus $161.00 per month in spousal support.
[14] The relief sought in the facta prepared by counsel and in their oral submissions at Court in Owen Sound on December 12, 2014 is not, in all cases, identical to what was sought in the Motion materials. That is understandable, as at least the first two Motions were originally returnable long ago.
[15] My Reasons address the issues and arguments as presented by counsel in the facta and in their submissions at Court.
[16] I commend both counsel for their professionalism and competent presentations in very difficult circumstances involving what seems to be interminable litigation between these parties.
III. ANALYSIS
[17] I have borrowed the following issues from the factum filed on behalf of the wife, although the husband’s factum raises similar questions to be decided.
[18] I note at the outset that the resolution of these matters is largely fact-driven. The parties generally agree on the applicable law. In fact, the husband filed just two cases – (i) Sydor v. Sydor, 2003 17626 (ONCA), which turns out to be moot as the parties now agree on the rescission of all support arrears owing by P.J. as of December 2010, and (ii) Fisher v. Fisher, 2008 ONCA 11, 2008 11 (ONCA), which is also largely moot because (except for a couple of glitches) the parties agree on the income figures to be used for the husband. The wife filed one case – A.M.D. v. A.J.P., 2002 41868 (ON CA), [2002] O.J. No. 3731 (C.A.), which is equally not necessary to resort to because the parties, for the most part, agree on imputation of income (for example, minimum wage for the wife from 2011 through to 2014).
A. Should the arrears of support owing by the husband as of December 2010 be rescinded?
[19] There is no dispute on this issue.
[20] It is agreed that P.J. owed an awful lot of money in child and spousal support arrears as of December 2010. The Temporary Order of O’Connell J. had not been complied with.
[21] The agreement reached by the parties in mid-December 2010, however, clearly extinguished those support arrears. As the wife herself acknowledges, it does not matter that the reconciliation was short-lived.
[22] The answer to this question is yes. All support arrears owing by P.J. as of the date of the agreement of the parties (mid-December 2010) are rescinded. So ordered.
B. What does the husband owe for child support and section 7 expenses arrears since January 2011, and what about ongoing child support?
[23] The parties are very close on this issue.
[24] The wife submits that the husband owes $74,460.00 in base child support arrears since the final separation of the parties in January 2011.
[25] The husband submits that the figure is $70,518.00.
[26] The parties’ calculations are identical for the years 2011, 2012 and 2013. The only difference is for the year 2014 – the wife’s figure is $18,192.00, while the husband’s calculation is $14,250.00.
[27] There are two reasons for the difference. First, P.J.’s figure is based on ten (not twelve) months, probably because the most recent of the three Motions before the Court was originally returnable in October 2014 (ten months in to this year). Second, the husband’s figure is based on three children (the three youngest), while the wife’s calculation is premised upon three children plus the eldest child being at home on weekends and in the summer.
[28] I prefer the wife’s calculation.
[29] The affidavit material on behalf of L.J. provides ample evidence, which I accept, that, in 2014, the oldest child was at home with the wife all or most weekends and during the summer while completing his education program (paragraph 18 of the wife’s Affidavit sworn on December 1, 2014).
[30] Thus, I fix the arrears of base child support owing by the husband since January 2011 at $74,460.00.
[31] I have considered the submission by Mr. Robertson that the Court has no or insufficient evidence about the income of the eldest child. That may have some relevance to the issue of section 7 educational expenses for the benefit of that child, however, I decline to give effect to that submission with regard to base child support.
[32] In terms of section 7 expenses arrears, L.J. has calculated that amount to be $27,801.00. The husband takes issue with the propriety of some of the expenses claimed by the wife.
[33] I agree with the wife’s position.
[34] I fix the arrears of section 7 expenses owing by the husband since January 2011 at $27,801.00.
[35] If the wife was asking that the husband pay his proportionate share of one hundred per cent of the oldest child’s education costs, then I would agree with Mr. Robertson that the Court should have cause for concern about the lack of evidence regarding that child’s income and/or school grants.
[36] But L.J. is not advancing that claim. She is asking that the husband pay his proportionate share of two-thirds of that child’s education expenses. Thus, built in to the equation is some contribution, real or attributed, from that child.
[37] Further, I do not accept the husband’s argument that the YMCA expenses actually being claimed by L.J. (as opposed to those which she merely supplied receipts for) are partly related to her and not the children.
[38] Finally, I do not accept the husband’s argument that some of the expenses claimed are unreasonable, such as approximately $3000.00 for summer camp for the children or the auto insurance costs for the oldest child. The summer camp expenses are on the high side, no doubt, but I am not prepared to conclude that it is an example of allowing the children to live beyond the realistic means of the parties. This is not the proverbial pony lessons for the girl who never saw a horse in her life while her parents were together.
[39] Going forward, commencing January 2015, P.J. shall pay table amount child support, per the Federal Guidelines, for the children based on an income of $96,000.00, less proper tax deductions.
[40] When I say “for the children”, I mean the three youngest and, for so long as he is in his first post-secondary program of education and still a dependant, the eldest child as well.
[41] Under another heading below, I explain where that number, $96,000.00, comes from.
[42] Going forward, commencing January 2015, P.J. shall pay his proportionate share of proper section 7 expenses based on an income for him of $96,000.00, less proper tax deductions, and the agreed upon minimum wage income attributed to the wife.
[43] P.J.’s legal obligation to pay anything towards a proper section 7 expense is not triggered until the wife provides him with a receipt or written proof of the expense, and such documentation shall be provided by the wife forthwith upon her coming in to possession of it. Payment shall be made by the husband within thirty (30) days after being provided with the proof of the expense.
C. What does the husband owe for spousal support since January 2011, and what about ongoing spousal support?
[44] The wife submits that she is owed $34,932.00 in spousal support arrears as of the present time. The husband submits that she is owed nothing. The husband disputes that L.J. has ever been entitled to spousal support since the final separation of the parties.
[45] L.J.’s calculation is based on $1000.00 per month from January 2011 to December 2013 and $161.00 per month commencing January 2014.
[46] The objectives of a spousal support award, relevant to the discussion in this case, include (i) recognizing economic advantages and disadvantages to the spouses of the marriage and its breakdown, (ii) relieving economic hardship caused by marriage breakdown, and (iii) the promotion of self-sufficiency of separated spouses within a reasonable period of time. Subsection 15.2(6) of the Divorce Act.
There are three distinct conceptual bases for entitlement to spousal support: on the basis of need [Bracklow v. Bracklow, (1999) 1999 715 (SCC), S.C.J. No. 14], on a compensatory basis (Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813) and on a contractual basis. The third basis is not relevant here.
[47] “Need is not measured solely to ensure a subsistence existence, but rather should be assessed through the lens of viewing marriage as an economic partnership”. Gray v. Gray, 2014 ONCA 659, at paragraph 27.
[48] In determining need, we are guided by the principle that the recipient spouse is entitled to maintain the standard of living that (s)he was accustomed to just prior to the time of separation. Marinangeli v. Marinangeli (2003) 2003 27673 (ON CA), 66 O.R. (3d) 40 (C.A.), at paragraph 74.
[49] As outlined in Moge, supra, the principle underlying the compensatory model of spousal support is, in part, that a spouse who foregoes educational and employment opportunities to care for the children and maintain the household may very well enhance the earning potential of the other spouse in pursuing his or her economic goals (paragraph 70).
[50] I am not satisfied that the wife has ever been entitled to spousal support on a compensatory basis. I agree with the husband on that point. There is scant evidence before me that the wife sacrificed opportunities to be the primary caregiver for the children and, consequently, enhanced the earning potential of P.J.
[51] But I am satisfied on balance that L.J. was entitled to spousal support, after the final separation, based on need. And I am satisfied that the said entitlement continues today.
[52] By all accounts, the husband earned far more money than the wife after January 2011.
[53] I disagree that I should be suspect of the lack of documentation before the Court regarding the wife’s vending business. I accept her evidence that the business was a bust (my word) – see page 7 of her Affidavit sworn on October 3, 2014.
[54] And I accept the evidence of the wife that she experienced serious financial issues after January 2011, including a requirement to begin consumer proposal proceedings in the Spring of 2013.
[55] $1000.00 per month, however, as suggested by L.J., is simply too high.
[56] It is acknowledged by the wife that, using the husband’s reported gross annual incomes and an attributed minimum wage to L.J., as agreed to by the wife, the Spousal Support Advisory Guidelines (“SSAG”) calculations would result in nil spousal support being payable by P.J. every year since 2011.
[57] The wife is absolutely correct that the Courts ought not to be slaves to the SSAG. But, taking in to account the means and needs and circumstances of the parties, it is not reasonable to deviate from the SSAG to the degree sought by L.J.
[58] I exercise my discretion to cut in half the monthly spousal support sought by the wife. There is more art to that decision than science. I have endeavoured to be fair to both parties, on account of the wife’s legitimate need and the husband’s reasonable ability to pay.
[59] P.J. shall pay to the wife spousal support in the amount of $500.00 per month for the period between January 2011 and the end of December 2013.
[60] For the period commencing January 2014 until now, I need further clarification from counsel, unless the parties can settle that issue on their own.
[61] The need for clarification arises from the fact that there are two different positions being advanced by L.J. In her factum, at paragraph 54, she seeks spousal support at $1000.00 monthly for 44 months starting January 2011, but the request is $161.00 per month commencing January 2014 at clause 11 of the typed summary handed to me by Ms. McClelland at Court on December 12, 2014.
[62] Where does the $161.00 per month come from? And why are there two different start dates suggested (either January 2014 or September 2014)?
[63] If necessary, counsel may address those questions when we deal with costs. Subject to hearing from counsel, it seems to me only fair that the wife should be confined to the lower of the two positions advanced.
[64] I do not accept the husband’s argument that I ought not to award to the wife any spousal support because we do not know enough about her current husband’s income and financial circumstances.
[65] At the same time, Mr. Robertson is correct that the remarriage or re-partnering of the recipient spouse does affect spousal support. The submissions of Ms. McClelland that the Court ought to ignore the income of L.J.’s current husband are, with respect, wrong in law. Re-partnering does not automatically mean that spousal support is terminated, but it often means that the amount will be reduced, especially if the entitlement is based on need rather than compensation.
[66] That is another reason why I have reduced by fifty per cent the quantum of monthly spousal support that was sought by the wife.
[67] Going forward, commencing January 2015, P.J. shall pay mid-range spousal support, per the SSAG, based on an income for him of $96,000.00, less proper tax deductions, and the agreed upon minimum wage income attributed to the wife. Under another heading below, I explain where that number ($96,000.00) comes from. That monthly figure will be around $153.00, but it should be recalculated by both counsel using the actual union dues figure to be deducted from the husband’s income (rather than the estimated $1000.00 as shown on the wife’s DivorceMate software printout).
[68] The ongoing spousal support award is for an indefinite duration, subject of course to variation in the normal course.
[69] As simply an observation, given the length of this relationship and the wife’s remarriage now a few years ago, and the fact that the current husband of L.J. makes decent money, I would think that spousal support may be terminated after the passage of another year or so. The wife should plan her affairs accordingly.
D. What incomes should be used for the parties for the various years since 2011 and in 2015?
[70] Regarding the years 2011, 2012, 2013 and 2014, the parties agree on the income figures, except that P.J. urges the Court to analyze the spousal support issue for 2011 based on his 2010 tax year line 150 total income.
[71] On the latter point, I disagree with the husband.
[72] Often, the previous tax year’s line 150 total income is the best evidence of what the current gross income is, but not when we are dealing with retroactive support and we know what the actual total income was for the year in question.
[73] Further, spousal support is not frozen in time. It is not based strictly on the total income of the payor spouse prior to separation. It is frequently adjusted year to year as incomes change.
[74] There is no need for me to resolve the issue of the propriety of the husband’s deduction for motor vehicle expenses for the one year in question. The wife’s support arrears calculations include that deduction.
[75] For 2015, the wife submits that the Court should use the amount of $131,696.00 for the husband, or alternatively, $96,000.00. The husband argues that his 2015 income should be based on his line 150 total income for the tax year 2013 - $73,968.00.
[76] I agree with the wife’s alternative position. Her primary submission is without merit as there is no reason to saddle P.J. with an income that is anything higher than what his employer has indicated he will earn with the permanent position at Bruce Power, starting January 2015.
[77] That amount is the $96,000.00. I fix P.J.’s income for 2015 at $96,000.00, less proper tax deductions. For clarification, that is not the income figure that shall be used for the husband for the year 2014 – P.J.’s income for 2014 I fix at $73,968.00.
[78] The husband’s submission that the said $96,000.00 is speculative is fairly hollow. It was put in writing, not long ago, by a very reputable employer. In the highly unlikely event that it proves to be incorrect, it can be adjusted cheaply and quickly on motion by P.J. or by agreement between the parties. It is a much more accurate figure to use than to simply adopt the 2013 tax year line 150 total income amount, as suggested by P.J.
[79] I fix L.J.’s income for 2015 at the minimum wage amount.
[80] Although I agree with the husband that it is time for L.J. to become more self-sufficient and start earning more than what a full-time minimum wage job would pay her, on the evidence before me, I am not prepared to impute any higher of an income to the wife at this time.
[81] The husband’s suggestion of attributing an income of about $38,000.00 to the wife in 2015 is not a completely unreasonable one. But it is premature to do so now, in my opinion. The part-time cleaning job is fairly recent, and I do not think that $38,000.00 is realistic quite yet.
E. What has P.J. paid to the Family Responsibility Office (“FRO”), as of September 2014?
[82] The husband states that he has paid $76,424.75, while the wife argues that he has paid no more than $65,300.00.
[83] I agree with the husband.
[84] I have looked at the evidence including the FRO documentation. I accept the submission made by Mr. Robertson at Court on December 12th – the $76,424.75 already takes in to account a reversal of the credit on support improperly given by the FRO to P.J. from what would have been his share of the net proceeds of the sale of the matrimonial home.
[85] It shall be taken by the parties that the husband has paid to the FRO, as of September 2014, $76,424.75.
[86] Obviously, in terms of calculating support arrears, the husband shall be given credit for what he has already paid.
F. Future Adjustments of Support
[87] The parties shall exchange financial disclosure each year. Support, both child (including section 7 expenses) and spousal, shall be adjusted each year according to the income figures for the parties.
[88] I leave it to the parties to set, by agreement, the annual deadline dates for the disclosure and adjustment to occur.
G. Other Relief Sought by the Parties
[89] Paragraphs 69 through 80 of the wife’s factum set out the relief sought by her.
[90] Pages 17 through 19 of the husband’s factum set out the relief sought by him.
[91] Any item not specifically dealt with herein shall be considered to be dismissed, whether a claim advanced by the wife or the husband.
H. Costs
[92] It seems to me that success has been somewhat divided on these three Motions, at least in terms of the contentious issues at the time of argument.
[93] If the parties are unable to agree on costs, I may be spoken to by appointment made through the trial coordinator in Owen Sound. That appointment must be arranged within thirty days of the date that these Reasons are released, otherwise, I shall consider the matter of costs resolved.
[94] This is not a case for written submissions on costs. The matter needs to go to trial as quickly and inexpensively as possible, unless of course the parties agree on a Final Order.
I. Conclusion
[95] Temporary Order accordingly. Support Deduction Order to issue.
[96] For the convenience of counsel, the primary declarations to form part of the Order are in bold type in these Reasons.
[97] This Order varies the Temporary Order of O’Connell J., effective January 2011. In essence, the Order of Justice O’Connell is no longer. My Order is the only one that the parties need to concern themselves with for the period commencing in mid-December 2010.
[98] I have dealt with all of the issues raised by the parties in their facta and in their counsel’s oral submissions at Court on December 12, 2014, at least for certain the contentious ones.
[99] I would urge the parties to think about how much more of their lives they want to spend in litigation. It is hard to imagine, but these parents have been fighting in the Court for three-quarters of the life of their youngest child. That is very sad.
[100] I would normally be assigned as the trial judge in this case.
[101] If the parties wish, on the understanding that I would then not be the trial judge, I am prepared to do something that I rarely do – offer a lengthy settlement conference or judicial mediation (call it what you want) to try to end this proceeding once and for all. We would clean-up any issues that were not before me on the Motions. We would discuss what parts of the within Temporary Order could be made a Final Order. We would get these folks and their children off to live the rest of their lives, free from the shackles of never-ending litigation.
[102] L.J. and P.J. are fortunate to have the lawyers they have. They have been helpful to me. They have served their clients admirably. They may see the utility of my offer.
Conlan J.
Released: December 15, 2014
COURT FILE NO.: FS-07-6891M
DATE: 20141215
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
L.J.
Applicant
- and -
P.J.
Respondent
REASONS FOR DECISION ON MOTIONS
Conlan J.
Released: December 15, 2014