Court File and Parties
COURT FILE NO.: 3791/10 DATE: 2016 04 14 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Elena Maria Albergaria Applicant – and – Daniel Paulo Albergaria Respondent
Counsel: Chukwuma Chuks Oriuwa for the Applicant Adam Black, for the Respondent
HEARD: February 11, 2016
SUPPLEMENTARY REASONS FOR JUDGMENT
Trimble J.
[1] In my Reasons for Judgment dated March 9, 2016, I dismissed Elena Albergaria’s Motion to Change the Judgment of Coats J. of November 16, 2012.
[2] Daniel advised that I did not deal with the following issues: a) child and spousal support going forward as he had requested, b) spousal and child support obligations since September 1, 2014 including overpayments/underpayments, and c) the obligation to pay section 7 expenses going forward. He is correct. A conference call was held on March 24, 2016 to discuss this issue.
[3] Daniel requests that I issue these supplemental reasons dealing with those issues saying that I have authority to do so under Family Law Rule 25(19)c and Rules of Civil Procedure, Rule 59.06(1). In addition, he cites the order of Donohue, J. Schedule 5, paragraph 8, which reflected the parties’ agreement that support overpayments or underpayments would be adjusted for.
[4] Elena argued that I am functus. As for support amounts, she said that Counsel can sort this out in the final order, based on my findings already made.
Jurisdiction
[5] Family Law Rule 25(19) and Rule 59.06 pertain to amending or varying orders made. There is no order made. I still have jurisdiction to entertain Daniel’s request. A court has broad jurisdiction to reconsider and amend a decision before a formal judgment or order is taken out (*Griffin v. Dell Canada Inc.*, [2009] O.J. 1592, aff’d 2010 ONCA 29). Whether, and under what circumstances a court will reconsider or amend a decision is fact driven.
[6] In this case, through oversight I did not deal with the three issues Daniel raised. Since the parties made full argument on these issues, no further argument or evidence is required aside from the argument provided on the conference call about jurisdiction. There is no prejudice to the parties in my issuing supplementary reasons to atone for my oversight and to do justice between the parties. There is injustice and prejudice to the parties if I do not.
Future Spousal Support Entitlement
[7] Daniel says that Elena is not entitled to any further support, as she is retrained and back to her earning potential. Before the marriage, she earned in excess of $30,000, and is now earning that much. In any event, if she is entitled to support, the amount of support is minimal, after child support is considered.
[8] Elena says that she suffered economic hardship during the marriage. She admits that since separation, she has retrained as an educational assistant, found work in her chosen area, and increased her income beyond the $21,000 imputed to her in 2012 and the $30,000 floor for her income set out in Coats, J.’s November 16, 2012 Judgment. She has not reached self-sufficiency, however. The full time wage for a full time E.A. is approximately $41,000, but she has only earned income in 2015 of $33,496, and, based on her first two weeks of earnings in 2016, it appears her income will be the same in 2016. She is still not regular full time, although she is working full time hours.
[9] Elena says that her standard of income has fallen well below that which she enjoyed during the marriage. In order to meet expenses, she has cashed in RRSP’s of $14,349, increased her mortgage by $30,000 to pay her OSAP loans, and her expenses exceed her income (including support) leaving her with a total indebtedness of $27,000.
[10] In my view, Elena is still entitled to spousal support, and should be so for another 2 years. It is clear from the evidence that she is fully qualified as an educational assistant, and that she is working full time in the field. She has not achieved full self-sufficiency as she has not yet received permanent full time work. I had no evidence on how long it should take Elena to find permanent full time work. Therefore I am left to estimate. I find that a further two years should be sufficient for Elena to find permanent full time work. Therefore, Elena is entitled to spousal support until May 1, 2018.
How much is Future Spousal Support
[11] Coats, J.’s order provided that child support would be paid at $880 per month until August 31, 2014, and thereafter based on the actual incomes of the parties, with Elena’s not being less than $21,000. It was also agreed that Daniel would pay spousal support, if Elena was entitled after September 1, 2014, at the low end of the range. Spousal support, it was agreed, would be calculated on the incomes of the parties, subject to a cap on Daniel’s income of $82,000 and a floor for Elena’s of $21,000.
[12] The Spousal Support Guidelines provide that once the payor’s ability to pay support is determined, child support should be given priority claim against that amount (see Spousal Support Advisory Guidelines, July 2008, para. 3.3.4 and 8.2).
[13] The practical effect of Coats, J.’s order and the guidelines is that spousal support is calculated as follows:
a. Determine child support on the parties’ actual incomes. b. Determine child and spousal support on the parties’ incomes applying the cap to Daniel’s income and floor to Elena’s, if applicable; c. Determine spousal support owing by deducting child support as determined by (a) above, from the payor’s total liability to pay all support as determined by (b), above.
[14] In my March 9 reasons I determine that the parties’ income is as follows:
| Year | Elena | Daniel |
|---|---|---|
| 2010 | 21,000 | 80,230 |
| 2011 | 21,000 | 81,220 |
| 2012 | 21,000 | 82,771 |
| 2013 | 24,428 | 114,113 |
| 2014 | 33,496 | 97,930 |
| 2015 | 31,547 | 94,509 |
| 2016 | 43,734 | 95,509 |
[15] Based on the actual incomes of the parties for 2014 and 2015, child support ought to have been paid at $902.00 per month from September to December, 2014 and $888.00 per month for all of 2015 and for January to April 2016. Using these child support figures and the floor for Elena’s income and the ceiling for Daniel’s income as contained in Coats, J.’s November 16, 2012 Judgment, spousal support payable for September 1 to December 31, 2014 is $173.00 per month, and for 2015 and January 1, 2015 to and including April 2016 is $254/month. I have applied the low end of the range for spousal support, as stipulated in the parties’ agreement.
[16] Therefore, from May 1, 2016 onward, until incomes are reassessed under the Coats, J.’s November 16, 2012 Judgment, Daniel owes spousal support at $173 per month.
Spousal Support Overpayment/Underpayment
[17] The parties agreed, and Donohue, J.’s December 29, 2015 order provides that future support obligations shall be adjusted by any overpayment or underpayment, Daniel has made.
[18] The following table indicates the spousal support obligations to date:
| Year | Spousal Support Owing [^1] | Spousal Support paid [^2] | Difference |
|---|---|---|---|
| 2014 (4 Months) | 692 | 2,520 | -1,828 |
| 2015 | 3,048 | 7,560 | -4,512 |
| 2016 (4 Months) | 1,016 | 2,520 | -1,504 |
| TOTAL | -7,844 |
[^1]: Based on actual incomes for 2014 and 2015. For 2016, based on 2015 actual incomes, subject to reassessment per Coats, J.’s November 16, 2012 Judgment. [^2]: Based on actual incomes subject to the $82,000 ceiling for Daniel’s income.
[19] In other words, Daniel has overpaid spousal support from September 1, 2012 to April 30, 2016 by $7,844.
[20] Daniel’s future spousal support obligation shall be set off against these spousal support arrears.
Future Child Support
[21] Daniel must pay child support per Coats, J.s Judgment, based on the parties actual incomes, at $888.00 per month, until incomes are reassessed under the Coats, J.’s November 16, 2012 Judgment.
Child Support Overpayment/Underpayment
[22] Daniel calculates that he has overpaid child support by $164 during the period of September 1, 2014 to May 1, 2016. He claims a set off against future child support. I agree. Elena shall repay, within 30 days, this amount to Daniel.
Future Section 7 Expenses
[23] Future section 7 expenses shall be shared 65/35% between Daniel and Elena respectively, until incomes are reassessed under the Coats, J.’s November 16, 2016 Judgment.
Costs
[24] The costs deadlines set in my original reasons are extended. Daniel’s are to be served and filed by May 6, 2016 and Elena’s are to be served and filed by May 20, 2016.
Trimble J. Released: April 14, 2016