Court File and Parties
COURT FILE NO.: FS-13-0161 DATE: 2016-09-06
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Nathalie Mary Doucet, The Applicant was unrepresented Applicant
- and -
Shanny Doucet, The Respondent was unrepresented Respondent
HEARD: August 16 and 17, 2016, at Thunder Bay, Ontario
Madam Justice H.M. Pierce
Reasons For Judgment
Introduction
[1] The Doucets cohabited from 1998, married on July 21, 2001, and separated on April 27, 2012. Thus, they have had a 14 year relationship. They are the parents of three children. The eldest, Erik Doucet, born February 7, 2000, resides in Timmins, Ontario, with his father, who is the respondent in this proceeding. The two younger children, Nicholas Doucet, born August 16, 2002, and Makayla Doucet, born August 7, 2005, live in Thunder Bay with their mother, who is the applicant in this proceeding.
[2] On March 18, 2016, Mr. Justice B. Fitzpatrick granted an order for joint custody and specified access to the children. The order was based on minutes of settlement filed by the parties. Mr. Doucet now complains about having to give 30 days’ notice to access his children, a provision in the order to which he agreed. There is no motion before the court to vary that term of the order and no indication of a material change in circumstances since the order was made. Accordingly, the court has no jurisdiction to vary the terms of the order for access.
[3] A divorce was granted at the conclusion of the trial. The issues remaining to be decided are:
- the validity of a separation agreement the parties signed on November 23 and 26, 2012;
- the determination of Mr. Doucet’s income for the purposes of child and spousal support;
- the amount of child support, including retroactively;
- the amount and duration of spousal support, if any, including any retroactive support; and
- the proportionate sharing of s. 7 expenses pursuant to the Federal Child Support Guidelines, SOR/97 – 175, as amended.
[4] In addition, Ms. Doucet wants the support enforced through the Family Responsibility Office. She seems unaware of the delays and bureaucracy that may interfere with the timely enforcement of support through that agency.
The Evidence
[5] At trial, the parties were unrepresented. The case was presented in a chaotic, confusing manner, with significant gaps in the evidence. The parties had little or no idea about how to present evidence, what evidence to present, how to conduct questioning or to make submissions in an orderly fashion. Accordingly, the court is left to sift through the evidence and do the best it can.
[6] Initially, the parties separated in about May of 2011 when Mr. Doucet learned of Ms. Doucet’s infidelity. Both parties then lived in Timmins. At that time, Ms. Doucet drew up a “kitchen table” agreement that dealt with financial arrangements; it provided that Mr. Doucet would pay child support of $2,000 per month. Care of the children was shared, with Mr. Doucet caring for the children when he was not working. The informal agreement has a date stamped on it of November 1, 2012, but neither party testified as to the origin or significance of the date stamp. Mr. Doucet testified that the agreement was not made on that date. The parties reconciled after that agreement but they could not salvage their marriage. They separated for the final time on April 27, 2012.
[7] In about September of 2012, the parties retained counsel in Timmins to work out acceptable terms of separation. There was correspondence between counsel to address financial disclosure, possession of the matrimonial home, life insurance, and child and spousal support. It appears that the first demand for spousal support was made through counsel on September 21, 2012.
[8] Ms. Doucet testified that her husband threatened to leave his job at that time in order to avoid paying support. Mr. Doucet testified that he did not recall threatening to quit his job at this time, but he agreed that he might have said it in anger. Ms. Doucet vacated the matrimonial home, apparently voluntarily, and found a small apartment in Timmins.
[9] Mr. Doucet testified that Ms. Doucet had possession of all of the family’s financial documents at that time and therefore had full financial disclosure. Before a separation agreement could be negotiated, events intervened.
[10] Ms. Doucet was diagnosed with breast cancer in 2009 and undertook treatment during the marriage.
[11] In about August of 2012, Ms. Doucet’s father was also diagnosed with cancer. He lived in Thunder Bay. While in Thunder Bay visiting him, Ms. Doucet developed medical difficulties and was admitted to hospital on November 5, 2012. In the meantime, her father’s health failed and he died on November 6, 2012. Fortunately, the Thunder Bay Regional Hospital made arrangements for Ms. Doucet to see her father before he died. She remained in hospital under treatment until discharge on November 18, 2012. To this day, Ms. Doucet remains tearful about those memories.
[12] Following her father’s death, Ms. Doucet was anxious to move from Timmins to Thunder Bay where she had more family support. The eldest child, Erik, elected to remain in Timmins with his father while the two younger children, Nicholas and Makayla, moved with their mother to Thunder Bay. Their mother has provided care for them since that time.
[13] While Ms. Doucet was still in Thunder Bay, but before leaving Timmins permanently, she asked Mr. Doucet to have his lawyer draw a separation agreement. It appears that Ms. Doucet did not consult her Timmins counsel or any other lawyer about the agreement.
[14] Mr. Doucet signed the agreement in the presence of his lawyer on November 23, 2012. Ms. Doucet signed the agreement on November 26, 2012. The witness to her signature was a woman who was a friend.
[15] The agreement stipulates that Ms. Doucet was advised to obtain independent legal advice, had the opportunity to do so, and declined it. No waiver of independent legal advice is attached to the copy of the agreement tendered by the parties at the trial, although the agreement makes reference to it.
[16] The agreement also specifies that the parties:
- understand their rights and obligations under the agreement, its nature and consequences;
- acknowledge that the agreement is fair and reasonable;
- acknowledge that they are not under any undue influence or duress; and
- acknowledge that they are signing the agreement voluntarily.
[17] The agreement waives spousal support and provides for a division of property as well as responsibility for payment of debts. Mr. Doucet retained possession of the matrimonial home until it was sold and the proceeds divided, which has now occurred. He paid the mortgage and costs of occupation as well as maintaining life insurance. As well, he was obliged to pay the parties’ line of credit in the amount of $29,000. Vehicles and chattels were divided.
[18] The agreement also provides that Erik would remain with his father and the two youngest children would reside with their mother. Mr. Doucet agreed to pay child support of $1,000 per month commencing November 1, 2012. Each parent was obliged to pay the s. 7 expenses for the child or children in his or her care. There is no recital in the agreement as to the incomes of either parent.
[19] Ms. Doucet testified that her husband pressured her to sign the agreement and that she was under the influence of heavy doses of pain medication at the time she signed the document. She stated that she was stressed by the loss of her father and her own health issues that involved her recent hospitalization.
[20] Ms. Doucet indicated that Mr. Doucet would not let her take the children to Thunder Bay until she signed the agreement and that she just wanted to have her children around her. She also stated that there was no exchange of financial information when the agreement was signed. Ms. Doucet added that she was unaware of her husband’s income at the time.
[21] Mr. Doucet testified that the separation agreement was drawn in order to facilitate Ms. Doucet’s move to Thunder Bay with the two younger children. He stated that he gave up a lot to obtain an agreement and that many of the terms were included at her request.
[22] In cross-examination, Mr. Doucet presented Ms. Doucet with the discharge summary from her hospitalization. That document, dated November 18, 2012, shows that she was discharged with a prescription for Clavulin after having no fever for over seven days. The context of the summary indicates that Ms. Doucet was discharged with antibiotics, with planned follow-up. No pain medication was referenced in the discharge summary. Ms. Doucet signed the separation agreement on November 26, 2012, twenty days after her father died, and eight days after her discharge from hospital.
[23] Mr. Doucet is a journeyman electrician. Early in the marriage, the family moved to a variety of locations where Mr. Doucet secured work.
[24] At the time the parties separated, Mr. Doucet was employed with a company. His annual income for 2012 was assessed at $128,030. He was employed as a supervisor, and because the price of gold was high, there was lots of overtime work available. Unfortunately, the company closed and Mr. Doucet was laid off. It appears this occurred in 2013. He testified that he continued to send his wife support money at the same rate the parties had agreed upon, even though he was out of work.
[25] Part way through 2013, Mr. Doucet started his own electrical contracting business, serving mine sites and residential customers. As Ms. Doucet took the family van at separation, Mr. Doucet had no vehicle. He purchased a big truck to carry tools and a cell phone to perform contracts. His income is variable. He is not in a union where wages are higher; he stated that journeymen electricians charge between $30 – 40 per hour in Timmins, depending upon the task.
[26] Mr. Doucet’s notices of assessment show total income of $82,955 for 2013; $73,285 (including RRSP income of $709) for 2014 and $62,708 (including RRSP income of $709) for 2015. He estimates that his 2016 income will be $80,000 by year-end, based on year-to-date earnings. This is more than deposed in his sworn financial statement. He has no medical insurance.
[27] During the marriage, Ms. Doucet was a homemaker and care-giver to the children. There is no evidence that she was employed outside the home. She undertook studies and graduated as a personal support worker in 2011, training that has afforded her increasingly better employment since separation. Mr. Doucet did not challenge Ms. Doucet’s stated income. In 2012, she declared income of $2,194.
[28] Initially, when they moved to Thunder Bay, Ms. Doucet and the children lived with Ms. Doucet’s sister. In 2013, Ms. Doucet obtained a three-month contract with the French School Board working as a secretary for $23 per hour. That work ended in July, 2013. Her employment income for 2013 was $17,000.
[29] In March of 2013, Ms. Doucet sought counsel in Thunder Bay and commenced this application in May. She does not seek to vary the property settlement in the separation agreement, but wishes to set aside the portions of the agreement relating to child and spousal support.
[30] On September 18, 2013, Mr. Justice Shaw granted a consent order dealing with custody and access arrangements, financial disclosure, and requiring Mr. Doucet to pay child support for three children of $1,393 per month commencing September 1, 2013. This order was based on imputing income to Mr. Doucet of $72,000. In fact, Mr. Doucet’s notice of assessment for 2013 shows that he had total income for 2013 of $82,955.
[31] Mr. Doucet testified that he paid support of $1,400 per month by direct deposit, pursuant to the order. Ms. Doucet’s banking documents for January and February, 2014 corroborated that he made payments in that amount directly to Ms. Doucet’s account.
[32] In 2014, Ms. Doucet worked for the school board as a student support worker from January to June, drawing employment insurance during the summer. She had surgery which prevented her from working until November, 2014. Her employment income for 2014 was $27,248.
[33] In 2015, Ms. Doucet suffered an injury in an interaction with a student and was off work a few months. She obtained casual work as a personal support worker with St. Joseph’s Care Group between June and November, 2015. In November, 2015, she obtained part-time status with St. Joseph’s. Ms. Doucet’s employment income was $27,964 for 2015.
[34] On January 10, 2016, Ms. Doucet obtained full-time employment as a personal support worker with St. Joseph’s Care Group, a position that affords her benefits. Her year-to-date earnings as of April 16, 2016 were $8,692.32. Her projected earnings for 2016 based on $8,692 divided by 14 weeks, calculated at $620 per week are $32,284. Because her full-time contract did not start until January 10, her annualized earnings in future should be slightly greater. Ms. Doucet also receives a child tax benefit of $756 per month.
[35] Ms. Doucet testified that she has been off work since March, 2016 and on sick leave since June 3. In June, 2016, Makayla was hospitalized for several days with a diagnosis of adrenal insufficiency brought on by Addison’s disease. The child’s physician in London, Ontario reported that this is a life-threatening condition requiring long medications, monitoring, and “a satisfactory level of parental knowledge and competence.” Ms. Doucet is on a leave of absence from work until September 15, 2016. There is no evidence about the financial ramifications of this leave; Ms. Doucet simply testified that she has a full-time position awaiting her return to work.
[36] Erik has moved back and forth between his parents’ homes. Mr. Doucet described Erik as a mixed up sixteen year-old. The boy travelled to Thunder Bay in July of 2013 to see his mother for the summer. He remained with his mother until about May of 2014 when he was arrested following a conflict with her. Erik’s aunt then assumed the temporary care of him.
[37] Pursuant to a written agreement made by Erik’s parents and his aunt, Mr. Doucet reduced the child support he was paying Ms. Doucet by $466, diverting this support to Erik’s aunt.
[38] Erik wanted to stay in Thunder Bay, but his aunt was not able to provide on-going care. He returned to his mother’s home in May of 2015. There is no evidence whether Mr. Doucet increased his child support payments once Erik returned to his mother’s residence. As it is in Mr. Doucet’s interest to raise this evidence, and he did not, I conclude that the level of support payments remained the same from May to August, 2015.
[39] Mr. Doucet did not file his financial statement as an exhibit at the trial. Probably this was due to inadvertence. By oversight, the court did not prompt him to do so. Nevertheless, his financial statement sworn July 22, 2016 contained in the trial record shows support paid for children in the amount of $960 per month.
[40] About mid-August of 2015, Erik returned to Timmins where he has been living with his father since.
[41] Mr. Doucet admits that he has not contributed to the younger children’s health costs or their extracurricular expenses since separation but agrees that an order should issue for these payments, provided he is given time to pay them. He believes that orthodontic expenses are not affordable for the family. He also submits that the parents should discuss and agree upon the costs for extracurricular activities to ensure they are reasonable before incurring them.
[42] Mr. Doucet testified that he paid support as required and he is not in arrears of support. Ms. Doucet could not say whether Mr. Doucet was in arrears of support pursuant to any agreement or court order.
The Validity of the Separation Agreement
[43] The seminal case dealing with the enforceability of separation agreements is Miglin v. Miglin, 2003 SCC 24; [2003] 1 S.C.R. 303. In Miglin, the Supreme Court of Canada set out the principles courts should use to determine whether separation agreements should be set aside.
[44] First, where there is a separation agreement in place, and a spouse is applying to the court for spousal support in the first instance, the court must look to the negotiation and signing of the agreement to determine whether there is any reason to discount it (para. 80). In particular, the court must consider whether there was “oppression, pressure, or other vulnerabilities,” considering all of the circumstances including the factors set out in s. 15.2(4) (a) and (b) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended, the conditions under which negotiations were held, and whether there was legal advice (para. 81).
[45] The Supreme Court concluded that where there are no vulnerabilities, or where they are compensated by the assistance of counsel or other professionals, the court should accept the agreement as the bargain made by the parties. However, where there is a power imbalance, the agreement may be given little weight (para. 83).
[46] If the court finds that the process by which the agreement was reached was satisfactory, it must next look at the substance of the agreement. This involves examining whether the agreement satisfies the objectives of the Divorce Act relating to spousal support, dealing with “an equitable sharing of the economic consequences of marriage and its breakdown.” The court will intervene where it is satisfied the agreement is not in substantial compliance with the Divorce Act (paras. 84 - 85). However, the court must remember that the agreement must be viewed as a whole, understanding that all aspects of the agreement are intertwined. The court must also remember that the spouses are entitled to establish their own goals. Even if part of the agreement is set aside, parts of the agreement may be left intact.
[47] Generally, if the manner in which the agreement was negotiated was satisfactory and the agreement was in substantial compliance with the objectives of the Divorce Act when the agreement was made, the court will give the agreement great weight. However, if the circumstances of the parties have changed at the time of the application for support in a way that was not contemplated such that the agreement no longer reflects the parties’ original intentions and the objectives of the Divorce Act, the court may also intervene. The onus is on the applicant “to show that these new circumstances were not reasonably anticipated by the parties, and have led to a situation that cannot be condoned” (paras. 87-88).
[48] Section 15.2(4) of the Divorce Act sets out the following factors that a court must consider when making an order for spousal support:
(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (a) the length of time the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse.
[49] The objectives of an order for spousal support under s. 15.2(6) of the Divorce Act require the court to:
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) to apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[50] I have concluded that the provisions of the separation agreement dealing with spousal and child support are not enforceable for several reasons. Unhappily, Ms. Doucet was the cause of some of those reasons.
[51] First, the process by which the agreement was negotiated was unsatisfactory. It was prepared and executed in haste. It is not clear the extent to which there was financial disclosure before the agreement was signed.
[52] Ms. Doucet insisted on leaving Timmins for Thunder Bay and she signed the agreement in order to secure her husband’s consent to her move with the children. Mr. Doucet conceded that he probably pressured her to sign the agreement; he stated that Ms. Doucet pressured him to consent to her taking the children to Thunder Bay, a move he opposed.
[53] Although Ms. Doucet had counsel in Timmins, and although she had to return to Timmins to move the children, she did not consult her lawyer before signing the agreement. She was emotional at the time, undoubtedly a consequence of her own hospitalization and her father’s death. She was, therefore, in a vulnerable state of mind.
[54] I do not conclude that Mr. Doucet knowingly took advantage of her vulnerability. I accept that he asked her to get legal advice before signing the agreement and she assured him that she would. However, she failed to do so. The separation agreement reflects that she was advised to obtain legal advice. Had she done so, it is obvious that her counsel would have advised her to insist on spousal support, given the disparity in the parties’ incomes and her unemployment at the time the agreement was executed.
[55] Secondly, the agreement does not take into account the factors and objectives for spousal support as set out in the Divorce Act in some fundamental respects.
[56] As noted, the agreement made no provision for spousal support. The spouses had been in a long-term relationship, some fourteen years. Mr. Doucet had been the bread-winner during the marriage whereas Ms. Doucet had been the homemaker, including being the primary caregiver for the parties’ three children. Ms. Doucet and the three children were wholly dependent on Mr. Doucet throughout the marriage and at the time of separation. Ms. Doucet had no employment history to enable her to find employment leading to self-sufficiency.
[57] Consequently, Ms. Doucet was economically disadvantaged by the role she assumed during marriage and by the breakdown of the marriage. Her assumption of child care and homemaking allowed Mr. Doucet to develop skills and a work history that enabled him to secure remunerative employment and, more recently, start a business. She stayed home while he went out to work. Mr. Doucet worked hard to support the family, but the benefit of sharing his income is not reflected in the separation agreement, which makes no provision for spousal support.
[58] Nor does the agreement relieve the economic hardship experienced by Ms. Doucet in trying to establish her own home, to become self-supporting, and caring for two and sometimes three children. Recently, Ms. Doucet has sought a leave of absence from work in order to stabilize Makayla’s health. We do not know the financial consequences of this decision.
[59] While Mr. Doucet has assumed some of the burden of care for Erik, Ms. Doucet has assumed a greater burden of child care since separation. The economic consequences of the assumption of child care were apportioned in the agreement.
[60] As well, the agreement did nothing to promote Ms. Doucet’s economic self-sufficiency. It is to her credit that she obtained personal service worker credentials by which she was able to obtain full-time employment. However, the earnings gap between the parties is still significant.
[61] Thirdly, the agreement does not provide an adequate level of child support in accordance with shared care under the Child Support Guidelines. The underpayment of child support by Mr. Doucet based on his declared income could only accentuate the poverty into which Ms. Doucet and the children were thrown. Not only did Mr. Doucet underpay child support in relation to his income, he refused to pay any of the children’s s. 7 expenses, related to health and extracurricular activities.
[62] Fourthly, the agreement also specified that child support would not be varied without the written consent of both the parties. This provision is contrary to the objectives set out at section 1 (a) and (d) of the Federal Child Support Guidelines, which provide that children benefit from the financial means of both spouses following separation and that there be consistent treatment of spouses and children who are in similar circumstances. The agreement as written effectively gives Mr. Doucet a veto over increases in child support, even if his income increases; it also consigns Nicholas and Makayla to a lower standard of living in their mother’s care than Erik enjoys in his father’s care.
[63] Given these conclusions with respect to the manner in which the agreement was negotiated and its contents, it is not necessary to deal with any subsequent circumstances arising after the agreement was made that could not have been anticipated by the parties.
[64] An declaration will issue setting aside the provisions of the parties’ separation agreement dealing with child and spousal support.
What is Mr. Doucet’s Income?
[65] Ms. Doucet submits that the income Mr. Doucet declared for purposes of the Income Tax Act should be topped up to account for personal expenses involving his vehicle, his cell phone, travel, advertising, insurance, rent, and meals.
[66] Beyond Ms. Doucet’s assertion that these are personal expenses, there is no evidence that they are not appropriate expenses for a newly founded business. She did not disagree that when she took the parties’ van at separation, Mr. Doucet required a vehicle to work as an electrician. It is reasonable to suppose that such a vehicle should be substantial enough to carry tools and equipment necessary for the job.
[67] Mr. Doucet testified that he worked at mine sites and at residential locations in the Timmins area and that the costs were greater when he worked out of Timmins. Likewise, he indicated that a cell phone is a necessary cost for a tradesman who is travelling to various locations and needs to keep in touch with his customers. He also stated that his income tax returns were prepared by his accountant and tax was paid on the submissions made.
[68] There is no evidence to suggest that business expense claims for advertising, insurance, rent, and meals are not reasonable for a new business of this nature. Accordingly, I do not accept Ms. Doucet’s argument based on the evidence called at trial. She submitted that his income should be increased but she has not proven he received a personal benefit from his business expense claims. Indeed, it will not benefit the family to make it more difficult for Mr. Doucet to develop his business and limit the income available to pay support in future. I find that Mr. Doucet’s income for purposes of child and spousal support is as declared in his notices of assessment filed.
Child Support
[69] Since s. 15.3 of the Divorce Act gives priority to considerations of child support over spousal support, I will consider the parents’ obligations to support the children first.
[70] When the separation agreement was signed, the parties agreed that child support in the amount of $1,000 per month would commence on November 1, 2012. The parties must have considered this to be a suitable commencement date. There is therefore no reason for the court to interfere.
[71] Neither party presented calculations for support due under the Child Support Guidelines. The calculations that follow have been prepared by the court to deal with retroactive and current child support.
[72] In 2013, Mr. Doucet lost his high-earning employment that afforded him overtime earnings for 2012, resulting in a substantial drop in his income. Accordingly, with the benefit of actual tax data for each year, I have adjusted child support based on the assessed income for the year in which it was earned as being more representative of each party’s earnings.
[73] In 2012, Mr. Doucet’s income was $128,030 while Ms. Doucet’s income was $2,194. For November and December of 2012, Mr. Doucet had the care of one child, Ms. Doucet, two children. Monthly child support due to Ms. Doucet based on these circumstances is $1,757 per month x two months or $3,514 for the remainder of 2012. Against this sum, Mr. Doucet is credited for payments made of $1,000 per month based on the separation agreement, or $2,000, leaving a balance of $1,514 in child support due for 2012.
[74] In 2013, Erik lived with Mr. Doucet from January to June, and with his mother and siblings from July to December that year. Mr. Doucet’s income for 2013 was $82,955 while Ms. Doucet’s income was $17,000.
[75] Mr. Doucet’s child support obligation for January to June, 2013 was $1,073 x six months or $6,438, against which he is credited for payment of $6,000, leaving an unpaid balance of $438.
[76] During the second half of 2013, all three children lived with Ms. Doucet. Mr. Doucet’s obligation for child support increased to $1,577 per month x six months or $9,462. On September 18, 2013, Mr. Justice Shaw ordered interim child support of $1,393 per month for three children, commencing September 1, 2013 based on income imputed to Mr. Doucet of $72,000. This order was made without prejudice to either party to argue that another sum of child support should have been ordered.
[77] The trial judge is at liberty to vary an interim order of the motions judge because it is expected that the trial judge will have a better opportunity to receive and consider all of the evidence. In this case, Justice Shaw did not have full income details for Mr. Doucet at the time he made the interim order. In fact, when Mr. Doucet’s income tax filing for 2013 was produced at trial, he earned almost $11,000 more than estimated by the parties at the time of Justice Shaw’s order.
[78] Had the court been aware of Mr. Doucet’s actual income for 2013, the order for interim child support would have been higher. It is contrary to the objectives of the Child Support Guidelines that children not benefit from the full income of their father. In addition, for policy reasons, a parent who does not fully disclose his or her income should not be rewarded by being permitted to pay reduced child support. Accordingly, the obligation of Mr. Doucet to pay child support for the second half of 2013, based on Ms. Doucet having all three children in her care, is varied.
[79] Against Mr. Doucet’s obligation to pay child support of $9,462 from July to December, 2013, Mr. Doucet is credited for paying $1,000 for the months of July and August or $2,000, plus $1,400 for the months of September to December, 2013 (4 months) or $5,600, for total child support paid from July to December of $7,600.
[80] Total unpaid child support for 2013 is therefore $438 plus $1,862 equals $2,300.
[81] In 2014, Mr. Doucet’s income was $73,285; Ms. Doucet’s income was $27,248. Mr. Doucet had no children in his care for that year. Ms. Doucet had three children in her care for the first five months of the year until Erik went to live with his aunt.
[82] Mr. Doucet’s obligation for child support for three children was $1,412 per month x five months or $7,060. He paid $1,400 per month or $7,000 for that period of time, leaving an unpaid balance of child support owed to Ms. Doucet of $60 for January to May, 2014.
[83] No claim is advanced for support of Erik during the period of time that he lived with his aunt during the balance of 2014. The parties made arrangements with Erik’s aunt for his support that seem to have been satisfactory to those concerned.
[84] From June to December, 2014, Mr. Doucet was obliged to pay Ms. Doucet child support for two children of $1,081 per month x seven months or $7,567. Mr. Doucet reduced the child support payment to Ms. Doucet by $466 per month which he diverted to Erik’s aunt. I find, therefore, that he paid child support of $934 per month x seven months or $6,538. He therefore underpaid child support by $1,029 for June to December, 2014.
[85] Total underpayment of child support for 2014 was $60 + $1,029 = $1,089.
[86] In 2015, Mr. Doucet’s income was $62,708 and Ms. Doucet’s income was $27,964.
[87] From January to May, 2015, Ms. Doucet had the care of two children while Mr. Doucet had no children in his care. Erik returned to her care in June of that year and remained with her until returning to his father’s care about mid-August. From September, 2015, Mr. Doucet had one child to care for and Ms. Doucet had two children.
[88] Mr. Doucet was therefore liable to pay child support of $931 per month x five months (January to May) or $4,655. The evidence is not clear on the exact amount he paid at that time. However, I conclude that the amount paid was similar to payments made during 2014 when Erik was out of both parents’ homes, which was $934 per month. He shall therefore have a credit of $934 x five months or $4,670. He is entitled to a credit for overpayment of child support in the amount of $15.
[89] During June, of 2015, Erik returned to live with his mother. Ms. Doucet therefore had the care of three children for June, July, and half of August. As child support is payable at the beginning of each month, I find that she is entitled to claim support for Erik for the month of August.
[90] Mr. Doucet’s obligation for child support for three children was $1,219 per month x three months or $3,657. Against that amount, he is credited with payments of $934 x three months or $2,802. He therefore underpaid his child support obligation for those months by $855.
[91] From September to December, 2015, Erik lived with Mr. Doucet and his brother and sister lived with Ms. Doucet. During this four month period, Mr. Doucet’s child support obligation was $703 per month or $2,812. He shall be credited with child support payments of $934 per month x 4 = $3,736 leaving a credit of $924 for overpayment of child support.
[92] When the foregoing debits and credits are totalled for 2015, Mr. Doucet is entitled to a credit of $84 for overpayment of child support.
[93] In 2016, Mr. Doucet anticipates earning $80,000 based on his year-to-date income leading up to trial, while Ms. Doucet’s projected income based on year-to-date figures will be $32,284. Mr. Doucet owes Ms. Doucet $900 per month x eight months from January to August or $7,200. His financial statement shows he is paying $960 per month or $7,680. Ms. Doucet agreed that he was paying that amount. He is therefore entitled to a credit of $480 for overpayment of child support for 2016.
[94] In summary, Mr. Doucet shall pay to Ms. Doucet on account of child support between November 1, 2012 and August 1, 2016 the sum of $4,339.
[95] On the basis that Erik remains with his father, Mr. Doucet is further ordered to pay to Ms. Doucet child support for two children of $900 per month commencing September 1, 2016.
[96] The parties shall exchange income tax returns and notices of assessment by June 1 of each year while there is a child or children of the marriage within the meaning of the Divorce Act and shall adjust child support and s. 7 expenses annually commencing July 1 of that year based on the verified income for the previous tax year. The first adjustment shall occur on July 1, 2017.
Section 7 Expenses
[97] There are two components to Ms. Doucet’s claim for s. 7 expenses: health-related expenses for the children including orthodontic expenses, and extracurricular expenses.
[98] The relevant portions of s. 7 of the Child Support Guidelines provide:
7(1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expense may be estimated, taking into account the necessity of the expenses in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation: (b) that portion of the medical and dental insurance premiums attributable to the child; (c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; (f) extraordinary expenses for extracurricular activities.
[99] Subsection 7(2) provides:
The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contributions, if any, from the child.
[100] In this case, there is no evidence that the children contribute to the cost of the expenses.
Health Expenses
[101] I will consider the health expenses first.
[102] Ms. Doucet’s evidence on what comprised her out-of-pocket expenses for the children’s health was incomplete, confusing, and difficult to understand. Before finding permanent employment, Ms. Doucet subscribed to the Trillium Plan which paid a portion of drug costs. She did not indicate what premiums she paid or the extent of the coverage. She reported that when she was on the Trillium Plan, she paid $40 and $17 for Nicholas’s asthma puffers with payment required “up front.” She did not indicate when the child or children began to have drug expenses in relation to the date of separation or the amounts she paid out of pocket.
[103] Ms. Doucet presented receipts for the purchase of Makayla’s drugs in February, 2015 in the amount of $40.89 and $18.70. No receipts have been presented since Makayla was diagnosed with her current condition.
[104] On her financial statement sworn August 11, 2015, Ms. Doucet claimed monthly health insurance premiums of $134.66; dental expenses of $100; and a further $50 for medicine and drugs. In her financial statement sworn March 31, 2016, she claimed monthly health insurance premiums of $134.66; $100 for dental expenses, and $100 for medicine and drugs.
[105] There was no evidence as to the portion of medical and dental insurance premiums attributable to the children as provided in s. 7 (1) (b) of the Guidelines, or to whom the other expenses relate.
[106] In 2014, Nicholas and Erik were assessed and found to be candidates for orthodontic treatment at a cost of $7,000 each. A receipt for Nicholas’s orthodontic examination, costing $75 was filed. Presumably Erik’s examination cost the same. I find that the boys’ orthodontic examinations cost $150.
[107] No estimate of costs or orthodontic treatment plan was presented at trial and no appointments have been made to have this work done. Neither party has a dental plan with orthodontic coverage. Mr. Doucet stated that the family could not afford orthodontic treatment for the children. Based on the lack of evidence at trial, it is not possible to determine the necessity or reasonableness of orthodontic treatment for the children.
[108] Early in the parties’ separation, Ms. Doucet was fortunately able to obtain dental services for the children at no cost. In September of 2015, she paid $60 for a hearing assessment for Erik.
[109] As of July 1, 2016, Ms. Doucet has a health plan through her work under which all three children have coverage. She was uncertain as to how the benefit plan would be applied, saying only that a portion of the medications would be covered. She testified that she pays about $80 per month for Makayla’s puffers that are not covered by her work plan. She also mentioned that Makayla required a needle costing $18.70 which was administered on an as-needed basis.
[110] Ms. Doucet’s financial statement sworn March 31, 2016 indicates a claim against her husband for s. 7 expenses averaging $100 per month for “prior years,” totalling $3,000. There is no indication as to what these relate.
[111] The Child Support Guidelines provide for awards based on estimated costs. The burden is on the spouse claiming the costs or estimates to present some evidence to enable to court to reach a conclusion.
[112] In my view, the estimate of $100 per month for retroactive health expenses for the children is probably reasonable, having regard for the fact that the children made up either 2/3 or 3/4 of the members of the household, Nicholas and Makayla’s need for drugs, and the disparity in the parties’ incomes.
[113] The earliest indication of drug expenses for the children comes from the February, 2015 drug receipts for Makayla. Apart from the orthodontic exams for the boys, there is no indication of an out-of-pocket dental expense. Accordingly, I assess Mr. Doucet’s liability for s. 7 health- related expenses for the children at $100 per month commencing January 1, 2015 through to August 1, 2016, a total of 20 months. Mr. Doucet shall therefore pay to Ms. Doucet the sum of $2,000 on account of retroactive s. 7 health care expenses.
[114] Commencing September 1, 2016, Mr. Doucet will earn 71% and Ms. Doucet will earn 29% of the parties’ combined incomes. Mr. Doucet is ordered to pay 71% of any medical and dental costs for the children that are not covered by a plan of insurance, and exceed $100 annually. No order is made for the payment of orthodontic expenses.
Extracurricular Expenses
[115] On her financial statement, Ms. Doucet claims $135 per year for acting classes for Makayla and a further $600 per year each for Makayla and Nicholas for school activities, outings, and camp.
[116] In 2015, Makayla was enrolled in acting class at a cost of $135 and in recreational soccer at a cost of $40. Receipts are in evidence. For the current year, Makayla plans to enroll in gymnastics at a cost of $170 and to continue acting classes at a cost of $135. The total cost is $305.
[117] Nicholas plans to play basketball in the community. Ms. Doucet could not estimate the cost. However, it is reasonable that his budget for extracurricular expenses be equivalent to his sister’s. No other evidence was presented about extracurricular costs. Presumably, when Ms. Doucet returns to work, she will not be available to the children for the entire summer school vacation; therefore, some recreational expenses for summer will necessarily be incurred.
[118] No evidence was offered about expenses for Erik’s extracurricular activities.
[119] It is necessary in the children’s best interests and reasonable that they have some constructive recreation. In my view, the sum of $600 per year for each child’s recreation is modest and reasonable. This equals $100 per month for both children. Mr. Doucet is ordered to pay to Ms. Doucet the sum of 71% of this cost or $71 per month on account of extracurricular expenses for Nicholas and Makayla, commencing September 1, 2016. In addition, Mr. Doucet is ordered to pay 71% of Makayla’s recreational expenses incurred in 2015, for a total of $124.25.
Spousal Support
[120] Ms. Doucet claims compensatory spousal support on the basis that, by moving with him to various locations and caring for the home and the children, she enhanced his ability to work and pursue his trade as an electrician. She also claims spousal support on the basis of need.
[121] Mr. Doucet points out that the proximate cause of the marriage breakdown was Ms. Doucet’s infidelity during marriage. He stated, “Everyone is responsible for the decisions made. We lost what we were building together.”
[122] Infidelity does not disentitle a spouse to spousal support. Section 15.2(5) of the Divorce Act provides that in making a spousal support order, the court shall not consider any misconduct of a spouse in relation to the marriage.
[123] Unfortunately, neither party presented calculations in accordance with the Spousal Support Advisory Guidelines. As a result, the court made its own calculations.
[124] Under the Divorce Act jurisprudence, the grounds for an award of spousal support are based on three concepts: compensatory support, contractual or consensual provision for support, and non-compensatory support. See: Bracklow v. Bracklow, [1999] SCJ No. 14 (S.C.C.), para. 15.
[125] Compensatory support awards are based on a consideration of the spouse’s “condition,” including his or her “means, needs and other circumstances” as provided in s. 15.2 of the Act. This consideration may include a spouse’s inability to support him or herself because career opportunities were foregone during the marriage. It may arise out of the functions performed by a spouse during marriage, such as care of children or a home. At para. 18 of Bracklow, the court held that compensatory support awards are made “where it would be just to compensate a spouse for his or her contributions to the marriage or for sacrifices made or hardships suffered as a result of the marriage.”
[126] Contractual entitlement to support refers to s. 15.2(4) of the Act, and encompasses consensual agreements whereby an obligation to support a spouse is either established or negated.
[127] Non-compensatory support generally relates to the need of a spouse for support after separation. Section 15.2(6) of the Act speaks to relieving economic hardship of a spouse arising out of the breakdown of the marriage as well as the promotion of economic self-sufficiency of each spouse during a reasonable period of time.
[128] In Marinangeli v. Marinageli, [2003] O.J. No. 2819 (Ont. C.A.), the court held that the spouses’ accustomed standard of living should be considered. Need must be balanced with ability of the other spouse to pay support.
[129] Should there be a compensatory award of spousal support in this case? I have concluded that there is insufficient evidence to warrant an order of compensatory support for Ms. Doucet.
[130] Ms. Doucet testified that the parties moved frequently throughout Ontario until they settled in Timmins in 2009. However, she did not testify about her own employment history or basic education before or during marriage. Nor did she discuss any opportunities for education, employment or career development that she lost as a result of her role in caring for the children and home while her husband engaged in employment outside the home. There was no evidence as to sacrifices or hardships arising from the assumption of that role.
[131] Mr. Doucet testified that Ms. Doucet decided to stay home when Nicholas was born in 2002. While Ms. Doucet’s care of the children and the home undoubtedly enabled Mr. Doucet to pursue employment, Ms. Doucet used her husband’s earning capacity to improve her education during marriage and to support her during cancer treatment. She studied and graduated as a personal support worker. This qualification enabled her to secure permanent employment following separation. Undoubtedly, this advantaged her in the long term.
[132] By contrast, there was no evidence about whether Mr. Doucet’s trades education took place during marriage. It is not clear when he was certified as a journeyman electrician. At some time during the year after separation, he lost employment and started an electrical contracting business as a way of supporting himself and his family, albeit at reduced income.
[133] As I have discussed, the parties entered into a separation agreement, which has been set aside. The correspondence sent by her former lawyer demanded spousal support, indicating an early intention to claim it. However, the circumstances of the negotiation of the agreement are not such that Ms. Doucet should be bound by her waiver of spousal support for reasons set out above. Ms. Doucet resiled from her waiver of spousal support a few months after signing the separation agreement.
[134] Should an award of non-compensatory support be made? It is obvious that Ms. Doucet had difficulty supporting herself following separation. Fortunately, she and the children had the advantage of living with her sister for a number of months when they moved to Thunder Bay.
[135] Before determining whether spousal support should be ordered and, if so, in what amount, the court must consider the factors and objectives in s. 15.2 (4) and (6) of the Act.
[136] What were the condition, means, needs, and other circumstances of each spouse?
[137] Following the signing of the separation agreement and her move to Thunder Bay, Ms. Doucet made sustained efforts to enter the work force. She also had responsibility for the care of two of the parties’ children. Mr. Doucet had lost his high-paying job and decided to start an electrical contracting business. He had the care of one child. Both parties had debts to pay: Ms. Doucet was paying her student loan; Mr. Doucet was paying the parties’ RRSP loan.
[138] Both parties suffered periods of unemployment. From 2012 to 2015, Mr. Doucet’s income declined each year. By 2015, his income was about half of the amount he declared in 2012, the year of separation. It was only in 2016 that his income began to rebound.
[139] Ms. Doucet had only nominal income in the year of separation, barely $2,000. In the following years, by dint of her efforts to find employment, her income increased steadily to its current level of approximately $32,000. However, Ms. Doucet remains substantially in debt.
[140] Currently, Ms. Doucet’s time away from work seems to relate to stabilizing Makayla’s health. Her doctor’s note merely indicates she is off work for medical reasons. She now has employment with benefits, including health coverage and pension.
[141] Mr. Doucet complains that his access to his children is impeded by the demands of his contracting business, such that it is difficult to arrange for time away. He has no paid vacation. In addition, the distance between Timmins and Thunder Bay makes access difficult. He has no health benefits and no pension arising from his self-employment.
[142] The spouses lived together for 14 years. During marriage, Mr. Doucet was the primary bread-winner and Ms. Doucet was the home-maker and care-giver for the children. There is no evidence about whether she was employed before Nicholas was born, the time at which she stayed home full-time. There is no order, agreement, or arrangement relating to the support of either spouse. No voluntary or court-ordered spousal support payments were made to Ms. Doucet following separation.
[143] Dealing with the objectives of a spousal support order under s. 15.2(6) of the Act, both spouses enjoyed the economic advantage of pooling their resources during marriage to reduce their living expenses, earn income, and raise their children. Ms. Doucet’s care of the children and the home were an advantage to Mr. Doucet. His earning capacity was an advantage to Ms. Doucet. It allowed her to pursue skills training, as he has done.
[144] Upon marriage breakdown, both spouses lost the advantage of working together in pursuit of common goals. Ms. Doucet suffered the greater economic disadvantage, having little or no employment. She assumed the greater burden of child care, first while the parties remained in Timmins, and then after she took two of the children with her to Thunder Bay. At some points since separation, she had care of all three children. On the whole, she has suffered the greater economic disadvantage.
[145] I conclude that Ms. Doucet, with reduced income, initially had a diminished standard of living compared to that she enjoyed before marriage. Although both spouses suffered loss of income in the years following separation, the impact on Ms. Doucet was greater. Mr. Doucet remained in the matrimonial home while she obtained rental accommodation. She resorted to credit to pay her bills and was dependent upon her family for help. The children did not participate in extracurricular activities until relatively recently.
[146] When proper child support is factored in starting in 2013, the income disparity reduces, as demonstrated by the calculations for the Spousal Support Advisory Guidelines. As well, the matrimonial home has now been sold and the proceeds distributed, so Mr. Doucet no longer enjoys that advantage. I am mindful that in starting his own business, he was obliged to finance his start-up by resort to debt which is continuing.
[147] I conclude that Ms. Doucet had the qualifications but not the work experience to help her become self-sufficient in the labour market.
[148] Neither party made submissions opposing the application of the Spousal Support Advisory Guidelines in this case. The use of the Spousal Support Advisory Guidelines was mandated by the Ontario Court of Appeal as a “useful tool” in Fisher v. Fisher, 2008 ONCA 11, [2008] O.J. No. 38. The guidelines are now in wide use in the courts.
[149] The calculations developed by the court in this case are marked as Appendix “A” to these reasons. They take into account the amount of child support that is due based on the children’s residence and the parties’ incomes, commencing in 2012.
[150] In 2012, the spousal support suggested by the guideline ranges between a low of $1,248 to a high of $1,792 per month.
[151] In 2013, the calculations for spousal support vary, depending upon whether Erik lived with his father or his mother. When Erik lived with Mr. Doucet, the range of spousal support was between $105 and $541 per month. However, when Erik lived with his mother, the spousal support ranged from a low of zero to a high of $55 per month.
[152] In 2014, Erik lived with his mother and siblings part of the time, and part of the time, he lived with his aunt, leaving two children with Ms. Doucet. When all three children lived with her, the guidelines indicate no spousal support. When two children lived with their mother, the range of spousal support was zero in the low and mid-range and $41 per month in the high range.
[153] In 2015, there are three scenarios with relation to the children’s residence. In the first, where Ms. Doucet has the care of two children, no spousal support is recommended in any range. The same is true when she has the care of all three children or when Mr. Doucet has the care of Erik and the two younger children are with their mother.
[154] In 2016, assuming that Ms. Doucet has the care of two children and Mr. Doucet has Erik in his care, no spousal support is recommended by the guidelines in the low and mid-ranges and $94 per month is recommended as spousal support in the high range.
[155] The Court of Appeal has determined that a person applying for support is presumptively entitled to support from the date of notice that a support claim is being pursued, absent an unusual reason arising from the factors and objectives set out in the Divorce Act. See: MacKinnon v. MacKinnon, [2005] O.J. No. 1552 (Ont. C.A.).
[156] Ms. Doucet’s Thunder Bay lawyer sent Mr. Doucet a letter claiming spousal support in March, 2013. Ms. Doucet’s Timmins lawyer made a similar demand which was not pursued by Ms. Doucet. In fact, Ms. Doucet executed a release of spousal support claims after an initial demand for spousal support was made. Thus, Mr. Doucet was entitled to be skeptical. Ms. Doucet testified that the first notice Mr. Doucet received of her claim for spousal support after signing the separation agreement was when she initiated this application. I find that Mr. Doucet was on notice that Ms. Doucet intended to apply for spousal support when served with this application in May of 2013.
[157] In my view, some transitional spousal support is appropriate in this case to relieve Ms. Doucet’s economic hardship arising from the breakdown of the marriage, including her accumulated debt, and to help promote her economic self-sufficiency. That support should commence when Mr. Doucet was on notice that spousal support would be claimed, in May, 2013. It should be paid in a lump sum.
[158] Accordingly, I order Mr. Doucet to pay to Ms. Doucet lump sum spousal support of $2,545. The award has been calculated based on high-end spousal support recommended by the Spousal Support Advisory Guidelines between May 1, 2013 and September 1, 2016. These calculations are found at Appendix “A” to this judgment, and are based on Mr. Doucet’s obligation to pay child support during that time. As Mr. Doucet presents a nearly balanced budged based on projected income for 2016 including child support ordered, I conclude that he has the means to make such a payment.
[159] The high-end spousal support award will ensure that Ms. Doucet’s household had the greater net disposable income compared to Mr. Doucet’s during the period of time for which spousal support was payable. It also recognizes that Mr. Doucet had the use of the family home. However, because the Spousal Support Advisory Guidelines do not recommend spousal support at the low or mid-ranges during much of that time based on the “with child support” formula, I am not persuaded that indefinite spousal support should be ordered. The applicant’s claim for on-going spousal support is dismissed.
Summary
[160] For reasons set out above:
(1) A declaration will issue setting aside the provisions of the parties’ separation agreement dealing with child and spousal support. (2) Mr. Doucet shall pay to Ms. Doucet child support of $4,339 for the period November 1, 2012 to August 1, 2016. (3) On the basis that Erik remains with his father and Nicholas and Makayla remain with their mother, Mr. Doucet shall pay to Ms. Doucet child support of $900 per month commencing September 1, 2016. (4) The parties shall exchange income tax returns and notices of assessment by June 1 of each year commencing in 2017, for so long as there is a child or children of the marriage within the meaning of the Divorce Act and shall adjust child support and s. 7 expenses annually commencing July 1, 2017, based on the verified income for the previous tax year. (5) Mr. Doucet shall pay to Ms. Doucet the sum of $2,000 for the children’s retroactive health care expenses. (6) Commencing September 1, 2016, Mr. Doucet shall pay to Ms. Doucet 71% of any medical and dental costs for the children and Ms. Doucet shall pay 29% of such costs that are not covered by a plan of insurance and exceed $100 annually. No order is made for the payment of orthodontic expenses. (7) Commencing September 1, 2016, Mr. Doucet shall pay to Ms. Doucet the sum of $71 per month for extracurricular expenses for Nicholas and Makayla. As well, he shall pay Ms. Doucet the sum of $124.25 for retroactive extracurricular costs for Makayla. (8) Mr. Doucet shall pay to Ms. Doucet lump sum spousal support of $2,545. (9) Ms. Doucet’s claim for ongoing spousal support is dismissed.
Enforcement of Support
[161] Unless the parties jointly advise the Family Responsibility Office that they wish to withdraw the enforcement of this order, it will be enforced by the Family Responsibility Office in the ordinary course. The parties are cautioned that it may take some weeks or months for enforcement to begin through this agency and so funds for the payment of support as ordered should be set aside to satisfy payments once demanded.
Costs
[162] While each party was unrepresented at trial, Ms. Doucet wished to make submissions with respect to her legal costs in this proceeding. If the parties cannot agree on costs, they may apply to the trial coordinator within 30 days of the release of these reasons for an appointment to argue costs, failing which costs will be deemed to be settled.
[163] The parties have leave to appear to argue costs by teleconference. Submissions claiming costs shall not exceed five pages in addition to any offers to settle and either party’s bill of costs, all of which must be served on the opposing party and filed with the court at least five days before the costs hearing.
The Hon. Madam Justice H.M. Pierce