CITATION: Charbonneau v. Charbonneau, 2015 ONSC 2181
COURT FILE NO.: FC-14-1886
DATE: 2015/04/07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ERICKA DENISE CHARBONNEAU
Applicant
– and –
GORDON JAMES CHARBONNEAU
Respondent
Andrew McMurray, for the Applicant
Meredith Holmes, for the Respondent
HEARD: April 2, 2015 at Ottawa
REASONS FOR DECISION
DOYLE J.
[1] The parties have three children who reside with their mother (“Applicant”) and the father (“Respondent”) has irregular visits to them. No support is being paid at this time. The Applicant is currently paying all of the s. 7 expenses including post‑secondary costs for the oldest child, summer camps for the youngest child and the vehicle costs including gas and insurance for travel from Osgoode to Algonquin College for the eldest to attend school.
[2] This is a motion by the Applicant for child support, payment of s. 7 expenses and a cross‑motion by the Respondent for spousal support and a contribution to be made by Danielle for her own post‑secondary education.
[3] For reasons set out below, I make the following order:
The Respondent shall pay child support for the three children in the amount of $1199 per month retroactive to May 1, 2014 (he is to be credited the amount of $1200 for payments he made until July 2014) and without prejudice to claim further retroactive payments.
Commencing April 1, 2015, the Respondent shall pay the amount of $221.48 towards the following s. 7 expenses: post‑secondary education, summer camps and car expenses.
The Applicant will pay spousal support in the amount of $500 per month retroactive to November 1, 2014 without prejudice to make further claim for retroactive payments.
Prior to incurring any further s. 7 expenses not listed above, the Applicant must first obtain written prior consent from the Respondent and this consent must not be unreasonably withheld.
Background
[4] The parties were married on October 16, 1993. They have three children, Danielle (born March 4, 1995) who attends Algonquin College, Alyssa (born September 27, 1997) and Lucas (born March 2, 2002). The parties separated on April 22, 2011. The Respondent left the matrimonial home after the Separation Agreement dated August 5, 2011 was signed.
[5] The Separation Agreement provided for the following on support matters:
i) There would be no child support;
ii) The Respondent would pay for half of the daycare costs; and
iii) The parties also agreed that “neither party shall pay spousal support to the other”.
[6] Despite the terms of the Separation Agreement, the parties had a verbal understanding that the Respondent would pay $400 per month for child support. He continued to make those payments until July 2014.
[7] He continued to pay for his half of the daycare costs pursuant to the Separation Agreement until September 2012.
Child Support
[8] As stated in Richardson v. Richardson, 1987 CanLII 58 (SCC), [1987] 1 S.C.R. 857, 1987 CarswellOnt 315, at para. 14: “Child maintenance, like access, is the right of the child. For this reason, a spouse cannot barter away his or her child’s right to support in a settlement agreement. The court is always free to intervene and determine the appropriate level of support for the child.”
[9] The parties agree that, based on the Respondent’s income of $61,623 per annum, the Table amount of child support for three children is $1199 per month and that the amount is payable retroactively to May 1, 2014. Notice was provided to the Respondent by way of a letter from Applicant’s counsel dated April 22, 2014.
Section 7 Expenses
[10] In addition to the Table amount of child support, the Respondent should be contributing to the s. 7 expenses. I have been asked to deal with ongoing expenses only.
[11] I have reviewed the s. 7 special and extraordinary expenses claimed by the Applicant and make the following determination:
Post-secondary expenses: $8200 - $2000 contribution from Danielle = $6000
- Having regard to Danielle’s income of approximately $6000 per year from her earnings, I find that it is reasonable to ask her to contribute to her education. I have reviewed Justice Curtis’ decision in Cotescu v. Cotescu, 2014 ONCJ 218 and agree with her that a “child should have some personal benefit from the fruits of his labour.” However, in this case, in calculating the parties’ respective contributions to this s. 7 expense, I would expect that Danielle should contribute $2000 towards her education. This is so in light of the fact that I will not be ordering the Respondent to pay his full portion of the gas costs for reasons set out below.
Therefore, the Respondent’s 38% share is $127 per month. His income for the purposes of determining his proportionate share includes the spousal support ordered.
Lucas’ Summer Camp: $615
- The parties agree that this is a valid s. 7 expense. The Respondent will pay his 34% share, which is $19.48 per month.
Gas/Repairs/Insurance: totalling $4872
- Given the distance from Osgoode to Algonquin College, it is appropriate for the Respondent to pay for some of the travel costs for Danielle to attend school. There was not sufficient evidence to establish if all of the gas, repairs and insurance costs relate solely for education as Danielle uses the family vehicle. No details of mileage used for commuting to the college were provided. Nevertheless, it is important that Danielle continues to attend classes and that the Respondent contributes to this expense. I find a reasonable amount to be paid by the Respondent is $75 per month.
Cell phones
- I am not allowing this s. 7 expense. I heard evidence that the father may be already paying for Danielle’s cell phone. I have no evidence of receipts or phone bills. This is not a necessary expense for Alyssa and hence this s. 7 expense is disallowed.
Spousal Support
[12] The Separation Agreement does not include spousal support waivers or releases. It merely states that the parties are not paying spousal support to each other.
[13] There are no clauses that state that the parties were releasing their respective rights to seek spousal support from the other. Therefore, I will first determine whether the Respondent is entitled to spousal support, and if so, then fix the appropriate quantum on an interim basis.
[14] I have reviewed the history of the marriage as set out in the affidavits. I note that both parties completed courses during the marriage: the Respondent pursued security systems courses and the Applicant obtained her MBA. The Respondent opened up a business as a security system and alarm technician and the Applicant did some bookkeeping for the business.
[15] The Applicant was the higher income earner and primary bread winner during the marriage.
[16] I have reviewed the Respondent’s current employment income and his financial statement.
[17] This was an 18‑year relationship in which the parties raised three children and contributed to their upbringing. Therefore, the Respondent is entitled to support. He is in need of support and the Applicant has the ability to pay.
[18] In light of his financial statement, his current income and his past medical history and the Spousal Support Advisory Guidelines, the Applicant shall pay the amount of $500 per month commencing November 1, 2014 (from the time of the filing of his Answer).
Costs
[19] If the parties cannot agree on costs, then the Applicant will file a two‑page submission on costs by April 21, 2015 and the Respondent will file a two‑page response by May 1, 2015.
Madam Justice Adriana Doyle
Released: April 7, 2015
CITATION: Charbonneau v. Charbonneau, 2015 ONSC 2181
COURT FILE NO.: FC-14-1886
DATE: 2015/04/07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ERICKA DENISE CHARBONNEAU
Applicant
– and –
GORDON JAMES CHARBONNEAU
Respondent
REASONS FOR DECISION
Doyle J.
Released: April 7, 2015