ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FC-13-748
DATE: 2015/12/17
BETWEEN:
Tammy Marie Love
Applicant
– and –
Stephen Brian McKelvey
Respondent
Joel B. Kerr - Counsel for the Applicant
Self Represented
HEARD: December 14 &15, 2015
The Honourable Justice James W. Sloan
[1] The parties to this case began cohabitating in 1994, married on September 13, 2003 and separated on December 31, 2011.
[2] They have three children currently aged 7, 11 and 15. The two oldest children reside with the applicant mother and youngest child splits her time between the parties.
[3] To their credit, after negotiating during the morning of December 14, the parties came to an agreement with respect to the parenting of the children.
[4] At the urging of the court, the parties continued to negotiate and on the morning of December 15, 2015 settled the financial issues of ongoing child support, life insurance, and division of the respondent’s pension.
[5] After filing the two above-mentioned partial minutes of settlement with the court, the outstanding issues for the court to decide are:
A. spousal support arrears,
B. whether or not there should be any ongoing spousal support and if so in what amount,
C. retroactive child support and arrears, and
D. whether the respondent should be obligated to re-enroll the applicant in his extended medical dental plan available to him through his employment.
[6] The parties also agreed on what each other’s taxable income was for the years of 2011 through 2014. In addition, they both agreed that there are $2000 worth of child support arrears since Justice Brown’s order was filed with FRO.
[7] The applicant was employed from 1994 to 2000, when her first child was born, at which time she earned between $30,000 and $52,000 per year.
[8] Between the years 2000 and 2008, both because of child care responsibilities and the complicated work schedule of the respondent, the applicant testified that they both agreed she should stay home and not work. This agreement was not denied by the respondent.
[9] In 2009, the applicant did return to work because the respondent was laid off from his employment. In that year she earned $9400 plus received $2600 for child tax credits.
[10] The applicant is a bookkeeper by trade, but says to really get back into it, she would have to be retrained on a more up to date software.
[11] She gave no indication as to how long this might take, how much it might cost or whether or not it could be done as a self-study project online or simply by purchasing some software and working with it to learn it.
[12] Although it was obvious from 2011, that she needed to find employment, there was little if any evidence presented to show a persistent search for full-time employment and any effort to upgrade her knowledge with respect to new software.
[13] This may in part be explained because she struck up a common law relationship with one Walter Lachance between November 2013 and May 2015. Although the relationship has come to an end, the applicant testified that they still reside in the same home and share expenses.
[14] Based on the evidence before me, there is literally no evidence as to why the applicant has not sought out and maintained more remunerative employment, especially when she is the mother of 3 children who need to be supported.
[15] I therefore impute earnings of $25,000 per year to the applicant which I will use for the calculation of both spousal and child support.
Arrears of Spousal & Child Support
[16] For the purpose of my calculations, I accept the payments that the applicant testified she received as set out on Exhibit 3. Although the respondent tried to call into question whether or not her calculations were accurate, it was apparent that he never requested her bank statements or other background material from which she compiled Exhibit 3. In addition, he did not present any evidence whatsoever with respect to what payments he made.
[17] Appended to my judgment are three DivorceMate calculations entitled to 2011, 2012, 2013 and 2014. These years relate to the respondent’s income for the year that was used in the calculation.
May 2013
[18] From the 2011 DivorceMate calculation, the respondent should have paid child support in the amount of $1584 per month and using the midpoint for spousal support, a further $297 per month for a total of $1881. Since he made no payments for that month, there are arrears of $1881 for this time period.
June 2013 – May 2014
[19] From the 2012 DivorceMate calculation, the respondent should have paid child support in the amount of $1486 per month and spousal support in the amount of $134 per month.
[20] Since he made no spousal support payments in that year spousal support arrears are $1608 (134x12).
[21] His child support for the year should have been $17,832 (1486x12). Based on Exhibit 3 he paid $13,506 leaving arrears of $4267.
[22] Therefore, the total arrears for this period of time are $5875.
June 2014 – May 2015
[23] From the 2013 DivorceMate calculation, the respondent should have paid child support in the amount of $1332 per month. Although there is no midpoint suggestion for spousal support I am allowing spousal support in the amount of $50 per month.
[24] The respondent should have paid child support for the year in the amount of $15,984 and based on Exhibit 3 he paid $14,300 leaving arrears of $1684.
[25] The respondent should have paid spousal support in the amount of $600 for the year and based on Exhibit 3 he paid $3851.64 for a credit of ($3251.64).
[26] Therefore for this time period, the respondent has a credit of ($1563.64).
June 2015 to November 13, 2015
[27] Based on the 2014 DivorceMate calculations the respondent should have paid child support in the amount of $1393 per month and I would continue spousal support at the rate of $50 per month.
[28] Child support of $1393 per month on an annual basis would be $16,716 per year and on a weekly basis $321.46 per week.
[29] Since the time interval is 25 weeks the respondent should have paid $8036.54 in child support however based on Exhibit 3 he has paid $8500 leaving him with a credit for this period of ($463.46).
[30] Spousal support of $50 per month equals $600 per year or $11.54 per week which for the same time interval equals $288.46.
[31] Therefore the total arrears of spousal and child support as of November 13, 2015 are $6,017.36.
[32] Based on the evidence before me the applicant is entitled to spousal support, however, since the child support takes precedence I have currently set it at $50 per month.
[33] This relationship was to a great extent what is commonly called a traditional relationship where one party, usually the male, goes out to work while the female stays home to look after the children and the household.
[34] This, of course, allowed the respondent to seek out and maintain a well-paying job while correspondingly the respondent was unable to pursue, in this particular case her accounting/bookkeeping career and therefore must try to resurrect her career at this late date.
Benefit Plan
[35] After separation and during the litigation the respondent entered into a new relationship with another lady who he wanted to put on his benefit plan.
[36] Without any warning whatsoever he removed the applicant from his benefit plan and she was left to find out about his decision when she was embarrassed that her dentist informed her she no longer had coverage.
[37] Based on a letter from the applicant’s dentist which has been entered as Exhibit 5, she has many expensive dental problems which should be addressed as soon as possible.
[38] If the respondent had had the foresight to discuss his intention to remove her from his benefit plan the applicant would have at least have had the opportunity to visit her dentist and get as much work done as possible before she was removed from the plan.
[39] In any event the respondent should not have removed the applicant from his benefit plan without her consent or a court order while matrimonial litigation was in progress.
[40] Evidence with respect to eligibility for the respondent’s plan is essentially nonexistent.
[41] The court does not know whether the respondent can remove his current girlfriend/common-law spouse from the plan and have the applicant reinstated.
[42] The court does not know, if the applicant could be reinstated, whether or not the dental work outlined on Exhibit 5 would be covered by the plan.
[43] The court also does not know whether the respondent could have remained under the respondent’s plan when the parties separated.
[44] Although neither party has asked for divorce in this litigation, it is unlikely that the applicant would be able to maintain the respondent on his benefit plan once they are divorced.
[45] The evidence currently before the court is that the cost of the dental work outlined on Exhibit 5 would be between $6000 and $7000 and that even if the applicant was covered under the respondent’s plan it would still cost her approximately $1000 out-of-pocket to pay for the work.
[46] The respondent offered to buy a health plan through ManuLife, however he did not present any evidence whatsoever as to what that plan entailed or how it compared with his employment benefit plan. Of course the ManuLife plan would require the respondent to continue monthly payments to the plan. On the facts of this case he certainly doesn’t have a perfect record of making payments when required.
[47] It was the applicant’s evidence that when she contacted the plan the dental work in question would not be covered and although the evidence was weak it appeared that there may be a 3 year waiting period before any major dental work would be done.
[48] The benefit plan is one of the employment opportunities that is afforded to the applicant by the parties’ joint decision to have the respondent stay home and look after the children etc. Her chance of obtaining a benefit package similar to the respondent’s is slim at best.
[49] I therefore order that the respondent immediately apply to human resources at his company to inquire if his current girlfriend/common-law partner can be removed from the plan and the applicant reinstated.
[50] If the applicant can be reinstated in the respondent’s extended medical dental plan through his employment the respondent shall immediately have her reinstated.
[51] If she can be reinstated and the plan will cover the dental work set out at Exhibit 5 I make no further order.
[52] If she cannot be reinstated or if she can be reinstated but the plan will not pay for the dental work set out in Exhibit 5, the respondent shall pay lump sum spousal support, for the dental work referred to in Exhibit 5 in the amount of $5000 payable at the rate of $300 per month commencing March 1, 2016.
Summary Of the Judgment
[53] The minutes of settlement dated December 14, 2015 shall form part of the judgment.
[54] The minutes of settlement dated December 15, 2015 shall form part of the judgment. The parties are at liberty to amend paragraph 6 of the December 15 minutes of settlement if so advised.
[55] Arrears of both child and spousal support are set at $6017.34 as of November 13, 2015.
[56] The arrears shall be paid at the rate of $100 per month.
[57] Spousal support shall be paid in the amount of $50 per month or $11.54 per week commencing November 20, 2015.
[58] The respondent shall immediately apply to have the applicant reinstated on his companies medical and dental benefit plan and shall keep the applicant informed of his progress.
[59] In the event that the applicant can be reinstated and the benefit plan will cover the dental work required in Exhibit 5 to the same extent that they would have if she had not been removed from the plan I make no further order with respect to the benefit plan.
[60] In the event the applicant cannot be reinstated on the respondent’s benefit plan, or if reinstated, the plan for whatever reason, will not cover the dental work set out in Exhibit 5 to the same extent that they would have if she had not been removed from the plan, the respondent shall pay lump sum spousal support, for the dental work referred to in Exhibit 5 in the amount of $5000 payable at the rate of $300 per month commencing March 1, 2016.
Costs
[61] If the parties are unable to agree on costs, Mr Kerr shall forward his brief submissions on costs to me by December 24, 2015. Mr. McKelvey shall forward his brief response to me by December 31, 2015. Mr. Kerr shall then forward his reply, if any, to me by January 7, 2016. Cost submissions may be sent to my attention by email, care of Kitchener.Superior.Court@ontario.ca
[62] I acknowledge that there is a sealed envelope in the court file marked offer to settle (respondent).
James W. Sloan
Released: December 17, 2015
COURT FILE NO.: FC-13-748
DATE: 2015/12/17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Tammy Marie Love
Applicant
– and –
Stephen Brian McKelvey
Respondent
REASONS FOR JUDGMENT
Sloan, J.
Released: December 17, 2015