COURT FILE NO.: FS-15-84080-00 DATE: 2016 08 22
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Chantal Muswanba Bukasa v. Patrice Nwepu Nyembwe
BEFORE: Van Melle J
COUNSEL: Vincent DePaul Wafo, for the Applicant Patrice Nyembwe in person
HEARD: July 29, 2016
E N D O R S E M E N T
[1] Today’s hearing was scheduled at the last motion’s date (June 21, 2016) because at that time the Continuing Record was in disarray.
[2] It appears that a few days ago, Mr. Nyembe’s counsel, Ms. Beauplan-Mann got off the record. Ms. Beauplan-Mann attempted to walk a motion in today which I believe involved issues between her and Mr. Nyembe. At 10:10 she served Mr. Nyembe with the motion materials. I declined to hear a motion that had been late served and that had not been confirmed.
[3] Mr. Nyembwe then sought an adjournment of this motion. I proceeded to hear the motion because it has been outstanding for quite some time and the other side had very late notice of Mr. Nyembwe’s lawyer’s exit from the file. As well, I note from previous endorsements that Mr. Nyembwe has a history of asking for adjournments and that in any event he has been on notice regarding this motion since October 2015.
[4] Ms. Bukasa seeks:
- spousal support of $1,200.00 per month retroactive to the date of separation July 17, 2015;
- sole custody of Belle-Ange born December 28, 2004;
- an annulation of Mr. Nyembe’s subsequent marriage to another woman;
- disclosure of all information regarding Mr. Nyemb’s pensions and his REER;
- a contribution to section 7 expenses.
ANNULMENT OF SUBSEQUENT MARRIAGE
[5] I explained to Ms. Bukasa’s lawyer on June 21 and again today, that I cannot annul Mr. Nyembwe’s marriage to another woman. I explained that Ms. Bukasa does not have standing to annul that marriage. The existence of a second marriage, entered into before Mr. Nyembwe was divorced from Ms. Bukasa would of course be a ground for divorce on the basis of adultery for Ms. Bukasa. It would also allow the subsequent spouse to seek an annulment from Mr. Nyembwe but does not allow Ms. Bukasa to annul the marriage to which she was not a party.
CLAIM FOR SOLE CUSTODY OF BELLE-ANGE
[6] Regarding the request for sole custody, on October 19, 2015 Justice Tzimas made an order granting custody of Belle-Ange to Ms. Bukasa subject to access to Mr. Nyembwe. I do not know why a further custody order would be required.
DISCLOSURE OF PENSION/REER
[7] Regarding the request for disclosure of Mr. Nyembwe’s pensions/REER, an order shall issue that Mr. Nyembwe is to furnish to the Applicant through her counsel, all information regarding his pension/REER within 15 days. If Mr. Wafo, on behalf of Ms. Bukasa is not satisfied with the disclosure, he may approach the Pension/REER administrators directly for the required information, at Mr. Nyembwe’s expense.
CONTRIBUTION TO SECTION 7 EXPENSES
[8] Justice Tzimas gave Ms. Bukasa permission to amend her pleadings to claim s. 7 expenses and allowed her to provide further information to the court to delineate those expenses. A review of her documentation in support shows that many of the claimed s. 7 expenses pre-date the date of separation. The right to be paid child support and a contribution to section 7 expenses arises upon separation and not prior to separation. I pointed this out to Mr. Wafo and his response was simply that the expense had been incurred by Ms. Bukasa. However, the support provisions of the Family Law Act and the Divorce Act do not come into effect until the parties have separated. It follows then that one cannot claim a contribution to section 7 expenses that are attributable to a time period prior to separation.
[9] There are some expenses arising after the date of separation, not all of which are legitimate section 7 expenses. For example, clothing for Belle-Ange is not a section 7 expense, but an expense covered by child support payments. Unfortunately, the materials fail to address s. 7(1) of the Federal Child Support Guidelines.
[10] The after tax cost of daycare is an expense that should be shared by the parties. Costs of daycare for Belle-Ange (2013-2015) were $4,600.00. The cheques produced in support of this item finish in June 2015. It is still up to debate as to whether the parties separated in April or July. (Although I note that Ms. Bukasa in her factum says that the parties separated on July 15, 2015). If April, Mr. Nyembwe would owe his portion of the after-tax costs of April, May and June. The date of separation is an issue for trial.
[11] The cost of three trips plus vaccination in the total amount of $2,089.24 appears in the documentation. The only trip taken after the separation is a trip to Montreal which appears to have cost $18.50. There is no information regarding the purpose of the trip. Without more information I cannot determine if it is a section 7 expense.
[12] A clothing expense for 2015 in the amount of $477.06 is claimed. As stated earlier clothing is covered by child support and is not a section 7 expense.
[13] An educational camp for June and July 2015 in the amount of $200.00 is claimed. The receipt for June is $150.00 while the receipt for July 27 is $50.00. The amount claimed for July 27 is a valid section 7 expense.
[14] A claim for the dentist dated October 14, 2015, for $120.00 is advanced. In support is a receipt from the dentist. There is no indication as to whether or not this was submitted to either party’s insurance plan. More information is required.
[15] There is an amount for a fine in the amount of $1,880.00. There is no indication as to what this fine is for. A fine is not a section 7 expense and in any event the fine was paid before the date of separation.
[16] There is a school lunch for Belle-Ange for September 2015 in the amount of $128.25. This actually covers a number of school lunches. There is no indication in the materials as to how lunch would be a section 7 expense.
[17] There is a $40.00 claim for educational material for Belle-Ange. This is possibly a section 7 expense and was incurred after separation. Again there is no information as to why this is a section 7 expense.
[18] Ms. Bukasa claims $23,474.43 as educational costs for Rodrigue Mwepu Tshilumba. The receipts cover 2008 to 2014. There is no explanation as to whether or not Rodrigue paid any part of the tuition himself. In any event the receipts relate to a time prior to separation.
[19] There are two claims for educational expenses. One for Goldrine Mbombo for $8,645.70 incurred prior to separation and a visa statement for $1,596.72 from September 5, 2012, again prior to separation.
[20] The final three items are utility payments and a mortgage payment. Utilities and mortgage are not section 7 expenses. Utility payments of $300 related to March 21, 2013. The telephone, internet and cable of $3,010, along with a mortgage payment of $1,800.00 do relate to a period after separation, but there is no indication as to why Mr. Nyembwe should pay a portion, particularly if he was not living in the matrimonial home at the time.
[21] It seems then that of the section 7 expenses claimed at most $90 would fall under section 7. I decline to order Mr. Nyembwe to pay a portion of this until the after-tax daycare cost is produced.
SPOUSAL SUPPORT
[22] On January 8, 2016 Justice Tzimas imputed income to Mr. Nyembwe in the amount of $70,000.00 per year. She did this because his disclosure had been woefully inadequate. She said as well:
The applicant asks the Court to impute an income of $70,000.00 to the Respondent and a corresponding child support obligation of $639.00 monthly based on the guidelines. In her evidence to the Court she relies on the Respondent’s own information to the Court in his Case Management Brief where he said he earned $70,000 but that his supporting documents were packed in boxes such that he could not provide them immediately. That Brief was dated October 14, 2015 and was in the Respondent’s own hand-writing.
The Applicant goes further to state that based on her past knowledge of the Respondent’s employment history the Respondent is earning much more than $70,000 as he is an Instructor at Alliance Francaise but also works as an interpreter for Immigration Canada.
Given the Respondent’s failure to meet his disclosure obligations, the only document that the Applicant can point to for some evidence in addition to her knowledge, is a “2014 Tax Return Summary” for the Respondent that indicated the following: Employment Income: $15,137.15, RRSP Income: $1,111.11 and Business Income: Gross $44,415.00 and Net: $319.75. There is no other document to explain the Business Income. The said statement is attached to the Respondent’s Financial Statement which he submitted unsigned and unsworn.
[23] In the result Justice Tzimas ordered child support based on the $70,000 imputed income. Although it appears that some additional material has been filed by Mr. Nyembwe, his disclosure still falls far short of what is required under the Family Law Rules and the Child Support Guidelines. He has still not filed a Financial Statement. Ms. Bukasa seeks spousal support of $1,203.00 based on the mid-range of the Spousal Support Guidelines and based on her income of $37,000.00 and Mr. Nyembwe’s income of $70,000. In support of this claim, Ms. Bukasa attached a “MySupportCalculator.ca” to her materials. Unfortunately that calculation did not take into account the fact that there is already a child support order of $639 in favour of Ms. Bukasa. When one takes that into account, the range of spousal support per month is $0 to $471. It is extremely important that support calculations be based upon correct information. A court should be able to rely upon calculation prepared by a lawyer. It is extremely unfortunate that the spousal support calculation neglected to take into account Justice Tzimas’ child support order.
[24] The materials demonstrate that Ms. Bukasa carried much of the financial burden over the last few years for this family. She is entitled to the high end of spousal support and I order Mr. Nyembwe to pay spousal support of $470.00 commencing July 1, 2016, without prejudice to the claim for retroactivity and amount.
ORDER
[25] An Order will issue compelling Mr. Nyembwe to serve and file a Financial Statement within 30 days; that Mr. Nyembwe pay spousal support in the amount of $470.00 per month commencing July 1, 2016.
[26] I will entertain brief written costs submissions not to exceed 2 pages double spaced along with a Costs Outline and any applicable Offers to Settle. All costs submissions are to be received by me within 2 weeks.
Van Melle, J DATE: August 22, 2016