ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: 505/09
Date: 2015Nov30
BETWEEN:
Melissa Lynn LePine
Marlene J. VanderSpek, for the Applicant
Applicant
- and -
Alain Joseph LePine
Self-represented Respondent
Respondent
HEARD: February 12, 2015
Harper J.
Issues
[1] The moving party (Alain) brought a motion to change the order of Justice Parayeski date July 24, 2012. He also seeks to have any arrears of support, child and spousal fixed and an order that allows for payment of any arrears over time.
[2] The responding party (Melissa) submits that there should be no change in the above mentioned order except to allow for an addition to the that order requiring Alain to provide life insurance, health benefits for her and the children so long as he is required to pay support. She also requests an increase in the spousal support claiming there has been a material change in circumstances, including the fact the there is no longer a requirement for child support on a go forward basis as all of the children are now independent. She also claims that many of Alain’s debts were extinguished due to his discharge from bankruptcy and, therefore, more money is now available to him.
[3] Melissa claims that Alain is underemployed and income should be attributed to him.
Background
[4] The parties started living together in June of 1986.
[5] The parties were married on March 7, 1987.
[6] The parties separated on May 1, 2009.
[7] There are three (3) children of the marriage, namely Genevieve F. LePine born April 22, 1988, Bryce F. LePine born September 7, 1990 and Olivia K. LePine born August 13, 1993.
[8] Throughout the course of the parties' marriage, the Applicant remained at home to provide care for the children while the Respondent worked full-time. The Respondent was the primary wage earner for the family.
[9] A trial was held in this matter before the Honourable Justice Parayeski on July 12, 13, 14 and December 12, 2011. Justice Parayeski's Reasons for Judgment dated July 24, 2012 failed to include amounts for child support and spousal support. The Reasons for Judgment only included amounts for imputed income for support purposes.
[10] The Final Order of Justice Parayeski dated July 24,2012 was not issued until December 18, 2012
[11] The child, Olivia LePine, stopped residing with the applicant on November 26, 2012.
[12] Melissa and Alain were married for approximately 22 years. In his Reasons for Judgment, dated July 24, 2012, Justice Parayeski found that Melissa was entitled to compensatory support as she interrupted her career in order to care for their three children, Genevieve (now 25), Bryce (now 23) and Olivia (now 20). Justice Parayeski imputed income to Melissa in the amount of $10,000.00. He found that Alain’s income to be $90,000.00 based on the information presented to him after a three day trial.
[13] The order of Justice Parayeski provided:
Alain was to pay child support in the amount of $1,293.00 per month as per the guidelines;
He was to pay spousal support in the amount of $1,762.00 per month;
The support payments were to start August 1, 2012;
Arrears of child support were fixed at $ $4,000.00;
The arrears of spousal support were fixed at $15,000.00; and
Payments on the arrears were to be in the amount of $ and those payments were to start on January 1, 2013.
Alain’s Education, Training and Experience
[14] Justice Parayeski found in his Reasons for Judgment that Alain was employed at a company called Shred-It. His background is in sales and sales management, most extensively in the area of computer and internet technology (IT). From 2005 through to 2009 he operated as an IT consultant through a numbered company. That company obtained multiple IT consulting contracts. This business was very successful. He then worked for Hewlett Packard from 2009 through to 2011. From there he was hired by Channel Assist. All of the jobs from 2005 forward were in the area of IT consulting and sales. At the time of the trial before Justice Parayeski, Alain was employed at Channel Assist. His income was imputed to be $90,000.00 by Justice Parayeski.
[15] The circumstances that evolved following the release of Justice Parayeski’s reasons of July 24, 2012 demonstrated that the respondent’s income continued to fluctuate in a similar manner that has since 2005. The respondent has had three (3) different employers since the previous trial. At the time of the previous trial, the respondent was employed by Channel Assist. His position at Channel Assist was terminated on December 20, 2012. He received Employment Insurance Benefits and within a month of his termination from Channel Assist, he brought this Motion to Change before the court on January 10, 2013. He subsequently found employment with Staples Canada and signed an employment contract with Staples on January 24, 2013. He further found employment with Shred-It International on July 26, 2013 and signed an employment contract with Shred-It on August 19, 2013.
[16] His income over the years was established in the evidence as follows:
a. 2006 - $185,013.00
b. 2007 - $146,924.00
c. 2008 - $137,435.70
d. 2009 - $66,744.00
e. 2010 - $112,850.00 total income [$47,276.00 (pre-bankruptcy) +$65,574.00 (post-bankruptcy income]
f. 2011 -$108,807.00
g. 2012 - $86,113.00
h. 2013 - $66,701.00
I. 2014 - $70,438.70
[17] In his reasons for judgment, Justice Parayeski made a finding relative to the issue of spousal support entitlement. He stated at para 16:
The parties were in a traditional, long term marriage. With the exception of some two weeks over an approximate 22 years of marriage, the applicant did not work outside of the home. During the marriage, the respondent’s career progressed well, for the most part. The applicant is entitled to spousal support. That said, I am not convinced that she is making a reasonable effort towards self-sufficiency at present. Her plan is to take a leisurely 5 years to complete a 4 year university degree in psychology. She admits that the same does not lead directly to employability. Rather, it provides one with “life skills”. She does not work during those months in which she is not taking courses.
The amount of spousal support shall be fixed as the mid-point of the range generated by the Divorce Mate software program, reflecting the fact that the respondent is also paying child support. Payment at the amount so generated is to commence on August 1st, 2012.
Spousal support is payable on an indefinite basis, but is subject to review in May of 2015, at which time the applicant should have completed her current university program.
[18] The review did not happen. Instead this matter proceeded before me as a trial of an issue within the respondent’s motion to change.
[19] In his reasons, Justice Parayeski fixed the arrears of child support at $4,000 and spousal support arrears at $15,000.
[20] Justice Parayeski’s order was not taken out until December of 2012.
[21] In arriving at the appropriate determination of income of the respondent, Justice Parayeski stated:
I reject the applicant’s assertions that the respondent is deliberately under-employed, and that, therefore, I should impute an income to him higher than the $90,000.00 he is prepared to concede. The imputation of income requires some evidentiary basis. Mere skepticism is not enough. I am prepared to pay judicial notice to the fact that we are presently in the midst of a recession, and that the information technology field has been particularly troubled. There is no evidence of the respondent having turned down more lucrative job offers or of his not working full-time. While his base salary at Channel Assist is less than it was at Hewlett-Packard, I do not accept that his switching jobs constitutes proof that he has undertaken a conscious effort to earn less in order to reduce exposure to support obligations.
Accordingly, it is appropriate that the respondent pay child support at the Guideline amount for the two children based upon an income of $90,000.00, commencing July 4th, 2011. That is the date upon which the respondent commenced employment at Channel Assist. I shall address any retroactive obligation for child support at a later point.
[22] The test for a variation is a strict one. The Supreme Court of Canada stated in Willick v. Willick, 1994 28 (SCC), [1994] 3 S.C.R. 670, at para.21:
"there must be a material change of circumstances, that is, a change that if known at the time, would likely have resulted in different terms."
[23] An issue that was known and considered at the trial before Justice Parayeski cannot be relied upon in this case as a basis for a changed circumstance.
[24] When the matter was before Justice Parayeski, the respondent was prepared to concede that his income was $90,000 despite the fact that it had fluctuated and was, at that time lower then $90,000.
[25] I find that the respondent has not satisfied the onus that there has been a material change in circumstances in order to set his income at a lower amount. His situation relative to his fluctuating employment income has not changed from the time of Justice Parayeski’s order. I dismiss his claim for a reduction in the order for support. His income remains set at $90,000 for the purposes of support.
[26] I find that Mr. LePine simply does not want to pay support to Mrs. LePine despite Justice Parayeski’s finding that she was entitled to compensatory support given the role she played within the marriage. Mr. LePine stated in his written submissions that reviewed what he paid to Mrs. LePine since separation and he then stated: “No wonder Mrs. LePine doesn’t need to work. I am her employer”. I find that statement very telling. This is more about his desire not to pay support than it is paying a lesser amount due to changes in the circumstances.
[27] I find that Mrs. LePine has acted reasonably given her circumstances with respect to maximizing her career potential. The expectation that she could graduate within a certain period of time was delayed as a direct result of the stress on her as a result of Mr. LePine not complying with the court orders and creating financial stress on Mrs. LePine. Her need to take a shorten education schedule was reasonable under the circumstances.
[28] In addition, she was in an accident, through no fault of her own, and this contributed to her inability to complete her education. I would not pose a time limit on her support.
[29] With respect to retroactive child and spousal support, Justice Parayeski dealt with those issues at trial. He also dealt with the issues of life insurance and health benefits. There has been no change in circumstances that would require any change in his orders in that regard.
The Child, Bryce
[30] With respect to the child Bryce. He is 24 years of age. He has an undergraduate degree. I find that Bryce still qualifies as a dependent child pursuant to the Divorce Act. There is no defined cut-off date for when a child ceases to be dependent. That includes circumstances when a child has completed a first post graduate degree. The decision of Justice Taliano in Haist v Haist 83 R.F.F. (6th) 147 is very informative on this point. Commencing at para. 56 Taliano J. stated:
56 At one time, courts were reluctant to extend support beyond a first degree; however, this is no longer the case. In Alberta v. Alberta, 2007 29972 (ON SC), 2007 CarswellOnt 4863, 40 R.F.L. (6th) 203 (Ont. S.C.J.), the court found that a child pursing multiple post-secondary degrees was entitled to support. The court, at paragraph 50, stated that entitlement to child support for post-secondary education, and in particular, second and third post-secondary programs, was dependent on the circumstances of the case.
58 another case dealing with multiple degrees is the Nova Scotia Court of Appeal case MacLennan v. MacLennan, 2003 NSCA 9, [2003] N.S.J. No. 15 (N.S.C.A), in which the court (at para. 38) cited with approval the decision of Martell v. Height (1994), 1994 NSCA 65, 130 N.S.R. (2d) 318 (N.S.C.A.):
It is clear from the various authorities cited by counsel that courts recognize jurisdiction under s. 2 of the Divorce Act to hold parents responsible for children over sixteen during their period of dependency. How long that period continues is a question of fact for the trial judge in each case. There is no arbitrary cut-off point based either on age or scholastic attainment, although as these increase the onus of proving dependency grows heavier. As a general rule parents of a bona fide student will remain responsible until the child has reached a level of education, commensurate with the abilities he or she has demonstrated, which fit the child for entry-level employment in an appropriate field. In making this determination the trial judge cannot be blind to prevailing social and economic conditions; a bachelor’s degree no longer assures self-sufficiency.
[31] With respect to Bryce, he graduated from Brock University on June 7, 2014. He was subsequently accepted into the Studies in Comparative Literature and the Arts Master Program at Brock University as a full-time student on March 3, 2014. However, he was required to extend his studies on account of depression and is set to complete his Graduate Studies by August of 2016. He has remained in the care of his mother throughout the course of his graduate studies and when he was required to take a stress leave. I find that Bryce is a dependent child and that the Respondent has a continued obligation to pay child support for Bryce so long as he continues his graduate program.
[32] The Respondent father shall pay child support in the amount of $801.00 per month
[33] The father shall pay spousal support in the amount of $2,202 per month. This is at the low range of the SSAGs. I find that the low range is appropriate as a result of the extended period of time she is taking to maximize her income capacity. That factor does not disentitle her to support, nevertheless I am of the view that a fair and reasonable quantum should approach the lower end of the scale under the circumstances.
[34] In the event that Bryce is no longer a dependent child, the Spousal Support shall commence the first of the month thereafter at $2,415.00 per month.
[35] The balance of the Order of Justice Parayeski is to remain in full force and effect.
Harper J.
Released: November 30, 2015
COURT FILE NO.: 505/09
DATE: 2015Nov30
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Melissa Lynn LePine
Applicant
- and -
Alain Joseph LePine
Respondent
REASONS FOR JUDGMENT
Harper J.
Released: November 30, 2015