CITATION: Zigiris v. Foustanellas 2016 ONSC 7528
COURT FILE NO.: FC-14-511
DATE: 2016/12/01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Felecia Georgina Zigiris
Applicant
– and –
Alexandros Peter Foustanellas
Respondent
Mary Cybulski, for the Applicant
Wade Smith , Counsel for the Respondent
HEARD: November 28, 29 and 30, 2016
Reasons for judgment
Overview
[1] The applicant married the respondent January 19, 2002. The parties separated in either October 2013 or early February 2014.
[2] During the course of the marriage the parties had four children.
[3] Proceedings are commenced in February 2014 dealing with custody, access, child-support, spousal support, setting aside a marriage contract, equalization and costs.
[4] At the opening of the trial, the parties advised me that they had reached agreements with respect to the custody and access provisions; the issue of spousal support and on the property issues.
[5] The issues for this trial are to determine each party’s income, the amount of table child-support, what expenses qualify as section 7 expenses; what type of security should be in place to secure the child support and costs.
Background
[6] There are four children of the marriage namely :
(a) Eleni, born, December 6, 2003;
(b) Petross ,born September 14, 2005
(c) Evangelos ,born September 4, 2007;
(d) Alecia, born March 5, 2011.
[7] In 2001, while the parties were dating, the respondent raised the issue that if he married the applicant, they would have to sign a marriage contract. The purpose of the marriage contract was to protect the respondent’s father’s company being Argos Carpet. The applicant was in agreement with such a purpose. A marriage contract was drafted by the respondent’s father’s lawyers.
[8] The applicant had the opportunity to obtain independent legal advice and received it from Mr. Stephen Goldberg on January 30, 2002. Pursuant to that advice, Mr. Goldberg did not recommend that the applicant sign the marriage contract. Despite the legal advice, no changes were made to the draft agreement and it was signed by the applicant. The applicant admitted that she had full financial disclosure at the time she signed the marriage contract as the respondent’s assets and liabilities were attached as a schedule.
[9] During the marriage, the applicant testified that she really did not know much about the respondent’s finances. She had a bank account that she opened when she was working at the Children’s Hospital of Eastern Ontario. The respondent had his own bank account and the parties opened the joint account which was used to pay all bills.
[10] The applicant testified that a joint account was opened years later and that she used that account to pay for groceries, clothes and things for herself. She testified that the respondent gave her a debit card for this account and she had a Visa card.
[11] In cross-examination, the applicant admitted it may have been at the date of the marriage because the parties deposited cash received at the wedding into such account. The respondent testified that the account was opened at the time of the marriage to put in the cash received at the wedding after the payment of bills. I find that the account was opened at the date of the marriage.
[12] The applicant admitted that the respondent’s salary of $1500 net per week was deposited into this joint account. Further, the applicant admitted that she had unrestricted access to the account and that there were no other sources of income except from her bank account where she deposited the child tax credit.
[13] Until October 2013, the applicant had unfettered access to the joint account. At that time the respondent stopped depositing money in that account as he was concerned about the applicant’s spending habits. During the trial, the applicant denied any misuse of those funds.
Date of separation
[14] The parties differ on the date of separation. The applicant argues the date of separation was October 2013 when the respondent stopped depositing money into the joint account. Further, she testified that the party’s sought marriage counselling in 2013 and that they had consulted a priest.
[15] The respondent testified that he was completely shocked to receive the letter from the applicant’s lawyer advising the applicant had retained a lawyer to pursue separation proceedings. The respondent does not know the specific date but remembers it was in late January or early February 2014 and that it was on Super Bowl Sunday.
[16] I find that the respondent’s evidence was very credible and that he had a specific recollection of the day that he received notice from the applicant that she considered marriage over without a chance of reconciliation. I find that the date of separation was early February 2014.
First Issue: The Parties Income
[17] The applicant was 32 years of age when she commenced this proceeding. She is currently 35 years of age and has no health issues.
[18] In September 2000 she started a six month course at Career Canada as a medical lab assistant graduating in February 2001. As part of her skill set, she is permitted to draw blood, give injections and perform the ECG tests as well as training as an administrative assistant.
[19] Quickly after graduating, the applicant was able to obtain a contract position in the psychology department at the Children’s Hospital of Eastern Ontario March 2001. She then moved to the cardiology department before finding a full-time position in the genetics department.
[20] After the birth of her first child, the applicant went on maternity leave. After the maternity leave, the applicant went back to work on a three month contract. Her last employment was March 2005.
[21] Since separation, the applicant has taken a French course to upgrade her French skills. She has had two job interviews with one being at the Children’s Hospital of Eastern Ontario and the other one for a position as a daycare person at a local gym. In addition she has sent out resumes including the Queensway Carleton Hospital.
[22] The applicant indicates that her days are spent taking care of the children by delivering them to school in the morning and picking them up in the afternoon and bringing them to the respective activities. She also indicates that she goes to a gym on a regular basis.
[23] The applicant admitted that she has not investigated what steps she would have to take to upgrade her skills since her last position was in March 2005.
[24] The applicant indicates she is not bilingual and this would be an impediment for finding employment. She indicated she would like to ease back into work for the children’s sake.
[25] On the issue of her ability to speak French, her current rating is D while the Children’s Hospital of Eastern Ontario requires a rating of A.
[26] She indicates that it is very difficult for her to get a job because of her childcare responsibilities for the four children. Further, she testified that the cost of daycare would be very expensive being as much as $1600 a month.
[27] The applicant admitted that during the marriage, there was an agreement with the respondent that she would return to work when the youngest child started school. The youngest child started school in September 2015. However, this agreement was made when the parties were living together.
[28] The applicant admitted during cross-examination when presented with a series of job opportunities that are posted on the Internet, that she could have applied for some of the positions but did not. She indicates that certain jobs required evening and weekend work as well as others required a higher level of functional bilingualism.
[29] The applicant admitted that there were jobs that she could have applied for but she was focused on the children in this litigation.
The Federal Child Support Guidelines
[30] In this case, the relevant part of Section 19 of the Federal Child Support Guidelines, S.O.R./97-175, as am. [“Guidelines”] is as follows :
- Imputing income.—(1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,
(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;
[31] The Court of Appeal in Drygala v. Pauli (2002), 61 O.R. (3d) 771 (C.A.), at para. 23, set out a three-part test for determining whether income should be imputed on the basis of intentional under-employment or unemployment as follows:
Is the spouse intentionally under-employed or unemployed?
If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?
If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?
[32] A spouse is intentionally under-employed if he or she chooses to earn less than he or she is capable of earning having regard to all of the circumstances (Drygala, at para. 28). There is no requirement that the under-employment or unemployment be undertaken in bad faith or with the intention of avoiding support payments (Drygala, at paras. 29-36).
[33] The onus is on the party seeking to impute income to establish an evidentiary basis that the other party is intentionally under-employed or unemployed (Homsi v. Zaya, 2009 ONCA 322, 65 R.F.L. (6th) 17, at para. 28).
Step one
[34] When considering the spouse’s capacity to earn income, the court should consider, among others, the following principles:
(a) There is a duty on the spouse to “actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children” (Thompson v. Thompson, 2014 ONSC 5500, at para. 99);
(b) A spouse’s capacity to earn income can be influenced by his or her age, education, health, work history, and the availability of work that is within the scope of his or her capabilities (Marquez v. Zaipola, 2013 BCCA 433, 344 B.C.A.C. 133, at para. 37);
Step two
[35] The second step of the Drygala test is generally treated as an overall test of reasonableness. In Jackson v. Mayerle, 2016 ONSC 72, at para. 702, the court held that:
Once intentional underemployment is established, the onus shifts to how one of the exceptions of reasonableness.
[36] Justice Pazaratz notes in Jackson v. Mayerle, at para. 715:
Parents are required to act responsibly when making financial decisions that may affect the level of child support available. They must not arrange their financial affairs so as to prefer their own interests over those of their children.
Step three
[37] Where the spouse is intentionally and unreasonably under-employed or unemployed, the court has a large range of discretion to impute as income an amount founded on a rational basis, as detailed in the Court of Appeal case of D.D. v. H.D., 2015 ONCA 409, 335 O.A.C. 376.
[38] The main factors a court should consider are the age, education, skills, and health of the spouse, along with the number of hours that can be worked in light of competing obligations and the hourly rate the spouse could reasonably obtain (Drygala, at para. 45).
Position of the parties
[39] The applicant submits that it is not reasonable to impute her an income until, at the earliest, one year from now, being November 2017, in the amount of $20,000. She submits that as a result of the roles assumed during the marriage, the lengthy period of time she has been out of the workforce and the stress of this litigation that she will need time to return to the workforce at potentially a part-time position.
[40] The respondent submits that the applicant should have an income imputed to her in the amount of $32,500 which is the lowest level according to the Pay Scale website for a medical lab assistant with 0 to 5 years of experience in the City of Ottawa.
[41] The respondent further submits that the sum of $39,600 should be imputed to the applicant representing the $3,300 per month of temporary spousal support that she was receiving under the order of Justice Kane. This order was based on the respondent’s income of $250,000. Further, as a result of the applicant receiving the respondent’s half interest in the matrimonial home in exchange for a waiver of spousal support, I should impute that income of $39,600 for the next nine years.
Analysis
[42] Pursuant to the agreement reached by the parties regarding the parenting issues, the parties will share joint custody of the children but the children’s primary residence will be in the care of the applicant subject to specific access to the respondent.
[43] At the time of his trial, the children are 13, 11, 9 and 5 years of age. The two youngest children will require pre-and post-school daycare. While the applicant testified that the cost of daycare would be $1600 a month, in cross-examination, she admitted that the daily cost for the two youngest children could be $50 a day or $1000 per month. The applicant does not wish to utilize the grandparents to assist in the daycare of the children.
[44] As this is not a shared custody arrangement, any imputation of income to the applicant will not change the table amount of child support. However, the applicant seeks that the respondent contribute to various section 7 expenses.
[45] Where the applicant is seeking that the respondent contributes to section 7 expenses, she has an obligation to contribute to those expenses. To be able to make such a contribution, she must have employment.
[46] While I accept that the applicant has been out of the workforce since 2005, she has not inquired as to what would be required to upgrade her skills. Further, she has made little effort to find employment.
[47] I find it is reasonable to impute an income to the applicant. The question is what is a reasonable income and when should it start.
[48] Regarding the imputation of spousal support of $39,600, I reject that submission for the following reasons:
(a) the basis of the $3300 per month of spousal support was a finding that the respondent had an annual income of $250,000, which the respondent denies is his reality.
(b) as part of the minutes of settlement on the issue of spousal support and property, the applicant agreed to terminate the respondent’s spousal support obligation and that both parties forever waive any claim for spousal support against each other. In exchange, the applicant is to receive sole ownership of the matrimonial home as well as being responsible for the outstanding taxes of $15,000.
(c) it is not reasonable to impute an income to the applicant based on the lump sum spousal support. The consideration for the settlement of the spousal support and property issues are intertwined.
(d) no case law was presented that supports such a contention.
[49] In determining the amount of income to impute to the applicant, I have considered the various job postings available to the applicant that were presented to her during cross-examination. Many of the postings are for medical clinics which appear to be jobs that the applicant could perform. With respect to the salary at these various jobs, they have ranged in hourly rates, hours of work and requirements for bilingualism.
[50] Based on the applicant’s age, her employment background, her educational background and the fact she has not worked since March 2005, I find it fair and reasonable that the applicant should be able to earn $12 an hour x 40 hours x 52 weeks which equates to an income of $24,000.
[51] The applicant has had 32 months to make arrangements about going back to work. I acknowledge that the parties agreed that she would do so in September 2015. The applicant has not done so. Now is the time for her to return to the workforce.
[52] I will impute an income to the applicant of $24,000 per year effective January 1, 2017.
Respondent’s income
[53] The respondent was 42 years old at the date of the commencement of proceedings. He left high school halfway through grade 11 to start working for his father, the owner of Argos Carpet (“company”). His role was in commercial and retail sales.
[54] The respondent testified that his weekly salary was $1500 after deductions. The salary was determined by his father. His father was and is the sole owner of the company. He has four boys including the respondent.
[55] It was his father who granted the four boys shares in the company. It was the father who requested that shares be transferred back in 2008. It was the father who had the company pay the capital gains on each of the boy’s income tax return in the year they transferred back the shares.
[56] It was the father who determined what his boys would receive as salaries. In approximately 2007, the father started to issue T4 slips to each of his sons in the amount of $250,000 as a method of, according to the respondent,” family tax planning”. The respondent admits that he had no idea how it worked but signed where he was requested to sign.
[57] These amounts of $250,000 were paid to each of the four boys for the years 2007 through to and including 2013. Once the decision was made to pay the $250,000 to each of the four boys, the company would pay the income tax and Canada pension plan deductions for that amount of income. The boys would then loan back the net amount to the company. By December 2013, the respondent’s loan amount owed to him by the company was $732,000.
[58] On December 31, 2013, the respondent transferred the loan owed to him by the company to a trust set up by himself with the respondent, his father and his father’s lawyer as trustees. The purpose of the trust was to care for the respondent’s children. The corporate controller testified that no money has been transferred from the loan account belonging to the respondent to the trust. At this time, it is solely an accounting entry.
[59] The father testified that in 2013, the company sustained a significant change in its circumstances as a result of a fire that gutted the showroom and the warehouse. Further, a civil suit in favour of the city of Ottawa and the negative publicity surrounding that case have resulted in a significant drop in gross sales for the company.
[60] The corporate controller testified that since 2013, there have been no bonuses and for that reason none of the four boys have received any bonus. Further, the controller testified that the only income that the respondent was able to live on was his salary as a commissioned salesperson.
[61] In 2014, the respondent’s line 150 income of his income tax return was $113,734.80.
[62] In 2015, the respondent’s line 150 income of his income tax return was $151,242.29 of which $115,528 was employment income and $35,714.29 was RRSP income.
[63] In 2016, the respondent, and confirmed by the company controller, will earn $113,503 as salary.
Position of the applicant
[64] The applicant submits that I should determine the respondent’s income as follows
(a) impute an income to the respondent in the amount of $250,000 based on the historical record of the respondent receiving that amount from his employer, his own father, or, in the alternative;
(b) impute an income to the respondent based on his salary, his RRSP income of $35,000 as well as between 40,000 and $50,000 of expenses paid by his father in 2016 which would have to be grossed up to account for the income tax.
[65] The respondent’s position is that his income is his salaried income of $113,503 in 2016.
Analysis
[66] The court granted the applicant’s request for interim disbursement to retain an expert to perform an income analysis of the respondent’s income. The court awarded $10,000.
[67] The applicant admitted that she did not have the income report prepared after receiving financial disclosure from the respondent, that she has received full disclosure from the respondent and that there are no current requests for further information. Based on the disclosure, the applicant decided not to have an income report prepared.
[68] I make the following findings of fact :
(a) the respondent has made full financial disclosure to the applicant including his bank records;
(b) there is no evidence of unexplained deposit in the respondent’s bank records;
(c) the respondent was not able to pay all of the bills during the marriage because of cash flow requirements; and
(d) there is no evidence that the respondent is living a lavish lifestyle that exceeds his income.
[69] I find that the income of $250,000 paid by the father to the respondent in the years to 2007 to 2013 was an income splitting scheme designed by the father without any input by the respondent.
[70] I find that as of result of the circumstances that arose in 2013, there has been a significant drop in the gross sales of the company. In the years 2011 and 2012, the gross sales are approximately $13 million. In the year of the fire, the sales were reduced to $9.5 million. In 2014, the gross sales exceeded $10 million but by 2015 were down to $9 million.
[71] I find that the respondent never received the financial benefit when he received a $250,000 in the relevant years.
[72] I find that the respondent has lived on his salary and receives no other financial benefits from the company. The applicant confirmed in her testimony that parties lived on the $1500 per week received from the respondent’s employer.
[73] I find that the company had made contributions to the respondent’s and his three other brothers RRSPs as directed by their own father. I find that there have not been any contributions to the RRSPs since the fire in 2013.
[74] In the years 2007 to 2013, the respondent declared commission income of $250,000 on his income tax return. The applicant admitted that she had no idea of the financial arrangements between her husband and his father. At a temporary hearing in 2014, Justice Kane set the child and spousal support payable by the respondent based on his most recent income tax which declared an annual income of $250,000.
[75] I find that the respondent’s sole source of income is $1500 net of deductions per week.
[76] I find that the respondent’s employment income for 2016 will be $113,503.
RRSP income
[77] The applicant submits that I should add to the respondent’s income the sum of $35,000 that he cashed out in 2015. The respondent testified that he cashed in his RRSPs because he could not afford to pay the support obligations pursuant to Justice Kane’s order as well as legal fees.
[78] Justice Kane relied on the respondent’s 2013 income tax return where he declared an annual income of $250,000. Further, Justice Kane did so with the acknowledgement that he did not have the disclosure that would be required at a trial.
[79] I find that there is no evidence that the respondent had cashed in RRSPs prior to the year 2015.
[80] I find that the respondent cashed in the RRSPs to pay his support obligations and legal fees and that he did not want to attend at trial being in default of a temporary order.
[81] For those reasons, I decline to include RRSP income into the respondent’s calculation of annual income for child support purposes
Payment of respondent’s expenses
[82] The applicant submits that I should add to the respondent’s income the expenses paid on his behalf by his father.
[83] I find that the respondent’s father bought a house next door to the matrimonial home so that the respondent could be close to his children.
[84] I find that the father provided his son with $55,000 to do renovations and has been effectively carrying all expenses related to that home.
[85] I find that the respondent’s father has paid between $40,000 and $50,000 of such expenses, including legal fees, in 2016.
[86] I have no other evidence of other sources of income available to the respondent. I have found that the respondent has not received any income splitting since 2013.
[87] I find that was no evidence that the father had given large gifts of money during the course of the marriage to the respondent.
[88] I accept the respondent’s evidence that the reason that his father has been advancing these funds to him is because currently he is unable to pay of the child and spousal support and legal fees involved in this litigation. I accept the evidence of the respondent that once a final order is granted in accordance with his salary, he will no longer be borrowing money for his father.
[89] In the circumstances, I will not impute an income to the respondent for the monies advanced by his father on his behalf subsequent to the commencement of this litigation.
Summary
[90] I find that the respondent’s income for 2016 is as follows:
(a) averaging the last three years of the father’s commission sales arriving at a figure of $114,754.66;
(b) vehicle expenses of $11,487.37. I have not allowed to the expenses of $2267.73 for meals and entertainment.
The respondent’s income for child support purposes is $103,268.
Section 7 Expenses
[91] The youngest child Alecia is currently taking horseback riding lessons every weekend which cost $195 a month or $1140 a year. The child was enrolled by the applicant in the program post-separation. There are other expenses such as helmet, jacket, pants, gloves that are incurred and these expenses will be increasing as she grows.
[92] Alecia also has swimming lessons which cost $240 a year for two periods of three months of lessons.
[93] Eleni plays soccer in the months of May through August the cost of $200.
[94] Petros and Angelo have played hockey since grade 1. They both started playing football in 2015. The applicant has paid the annual cost of $850 for the football registration. Regarding hockey, the respondent pays the registration fee of $540 per child and 86% of the team fee and the applicant 14%, in accordance with the temporary order of Justice Kane. The applicant indicates she pays for additional expenses such as pants, helmets, skates and mouth guard. Any out-of-town tournaments are shared by the parents depending on what was weekend it is.
[95] Regarding any health issues, Angelo has medication for ADD and both he and Eleni require glasses every two years. Currently, the applicant pays these expenses
[96] Regarding dental expenses, the children usually have cleaning every 6 to 8 months and cavities as they arise. Eleni required orthodontics in 2014 and they were not pursued as the respondent indicated he could not afford to pay for it. There is no current assessment if she needs orthodontic expenses at this time.
[97] In the past, all children except Alecia have been involved in counselling but currently there are no such expenses being incurred at this time.
[98] Angelo requires tutoring $40 an hour which occurs for approximately 36 weeks in the year which comes to a $1440.
[99] There are no anticipated changes in any of the circumstances
[100] The applicant admitted that the daycare costs for the two youngest children could be $50 a day, $1000 per month.
Analysis
[101] In determining whether or not an expense qualifies as a “special or extraordinary expense”, the court must take the following factors into consideration:
(a) the necessity of the expense in relation to the child’s best interests;
(b) the reasonableness of the expense in relation to the means of the spouses and those of the child; and
(c) the family spending pattern prior to the separation.
[102] I have no difficulty in finding that the daycare expense that will be incurred for the children is a section 7 expense to be shared on an after-tax basis.
[103] With respect to dental expenses, I have set the figure of $3000 on an annual basis as a section 7 expense for all four children for regular dental treatments not including orthodontic treatment.
[104] With respect to the hockey expense, this was an expense that was incurred prior to separation.
[105] With respect to the soccer expense of $200 and the swimming expense of $240, I do not find that these expense meets the definition of “extraordinary expenses” set out in section 7(1.1) of the Federal Child Support Guideline. I deny these expenses.
[106] With respect to the football, the children started in the football post separation. The evidence I have is that the children enjoy playing football but that the respondent had concerns about concussions which do not appear to have been seriously considered. This expense was not incurred prior to separation.
[107] With respect to the horseback riding expense for Alecia, this again was incurred after separation. The evidence is the child really enjoys the activity. The question is whether the expense is reasonable and affordable.
[108] With respect Angelo’s tutor, I find that it qualifies as a section 7 expense.
[109] The applicant requests that all of these expenses be considered section 7 expenses including swimming and soccer. The respondent submits that after the payment of table child support, the parties must be in a position to be able to afford these expenses.
[110] The cost for the section 7 expenses requested by the applicant are as follows:
(a) dental expenses $3000
(b) football $1290
(c) hockey $1780
(d) horseback riding $2340
(e) tutor $1440
(f) daycare expense to be determined
Are the expenses reasonable?
[111] The issue of reasonableness requires the court to investigate the affordability of these expenses.
[112] Based on my findings as to the party’s respective incomes after paying table child support of $2256 per month without any section 7 expenses, the respondent’s net disposable income would be 37% and the applicant’s would be 63% .
[113] If I were to include the tutoring expenses, the hockey expenses, the football expenses, and the horseback riding expenses as section 7 expenses, the respondent’s contribution to section 7 expenses would be $571 per month. The respondent’s net disposable income would be 34% and the applicant’s net disposable income would be 66%.
[114] I also am cognizant of the fact that daycare and dental expenses are to be paid as they arise. This will increase the respondent’s share of the section 7 expenses.
[115] I do not find it reasonable that the respondent would have to contribute to all the expenses and the dental expenses plus the potential share of the daycare expenses.
[116] I find that the tutoring expense must be incurred for the best interest of the child’s education. Secondly, I find that since the boys were partaking in hockey during the marriage, I find that that expense should be maintained.
[117] I do not find that the football or horseback riding are expenses that are reasonably payable by these parties. The circumstances may change but at this time, I do not find that these expenses are reasonable.
[118] While I have no doubt that the boys love football and the Alecia loves horseback riding, based on my findings as the party’s income, they are simply not reasonable expenses that can be incurred by this family.
[119] The respondent’s share of 81% of the tutoring expense is $120 per month.
[120] The hockey expense is not paid monthly but is paid at certain times of the year. If the respondent is to pay the tutoring and hockey expense his net disposable income is 36% in the plus mothers net disposable income is 64% which is close to the percentages if no section 7 expenses are shared.
[121] Consequently, I order that the tutoring expense and the hockey expense are section 7 expenses for this proceeding.
Post-secondary education expenses
[122] The applicant seeks an order that the respondent be responsible for all of the post-secondary educational expenses for all four children. She does so on the basis that the respondent set up a trust on December 31, 2013 where he transferred $732,000 owed by the company to him into a trust.
[123] The issue of the postsecondary educational expenses of the children will be canvassed as each child decides whether or not to pursue postsecondary educational expenses.
[124] At that time, the court will look at the needs of each child, the contribution that each child can make, any other sources of the income such as registered educational plans, bursaries, and grants before examining a contribution by a parent. In those circumstances, I think it is premature to have either parent be responsible for future postsecondary educational expenses that may not occur for at least six years for the oldest child and potentially 15 years for the youngest child.
[125] In the circumstances, I dismiss this claim for relief.
Security for child support
[126] In Katz v Katz 2014 ONCA 11375, the Court of Appeal canvassed the issue of life insurance securing support obligations. And provided the following principles :
(a) the Divorce Act does not have a provision like S. 34(1)(k) of the Family Law Act which permits a court to order a spouse to obtain insurance to secure payment of support following the payors death;
(b) despite not having the specific provisions, the court is giving broad discretion to impose terms, conditions, and restrictions in connection with an order for child or spousal support including the power to order a spouse to obtain insurance to secure the payment and that the payments are binding on the pay yours a state;
(c) the factors to be considered in determining the quantum of the life insurance, once the issue of insurability and cost of the insurance is resolved, the amount of life insurance cannot exceed the amount of support payable over the duration of the support order; the amount of insurance to be maintained should decline over time as the amount of spousal support payable will diminish over the duration of the award, the obligation to maintain insurance should end when the support obligation ends, and the court should first order that the support obligation is binding on the payor’s estate.
[127] I have considered the following factors in arriving at my decision regarding life insurance::
(a) under the Divorce Act, I have the jurisdiction to order the respondent obtain and maintain life insurance to secure his payment of a support obligation;
(b) under the Divorce Act, I have jurisdiction to order the support obligation to be binding on the respondent’s estate;
(c) I have ordered the respondent to pay to the applicant, monthly child support of $2,256 per month;
(d) the respondent does not have any insurance .
[128] The respondent should have life insurance to secure his obligation to pay table child support. This is not a case of shared custody and consequently I will not order the applicant to obtain life insurance.
[129] In the circumstances, I will make the child support obligation binding on the respondent’s estate.
[130] I order the respondent to apply for life insurance in the amounts of $300,000, $400,000 and $500,000 by February 28, 2017 and to provide proof of his insurability and the cost of the premiums for all three policies to the applicant by April 30, 2017.
[131] Upon receipt of this information, the parties may review the issue of the life insurance based on the information received at that time.
Divorce
[132] I am satisfied that the parties of the living separate and apart since early February 2014 and that they have not reconciled. Consequently an order of divorce shall issue.
Disposition
[133] I order the following:
(a) the divorce order on the grounds the parties been living separate and apart for more than one year;
(b) an order that the parties have joint custody of the children in accordance with the minutes of settlement to be filed;
(c) an order that neither party shall pay each other spousal support at any time;
(d) an order that the marriage contract is valid and that there is no equalization payment owing pursuant to the minutes of settlement to be filed;
(e) commencing on December 1, 2016 and on the first day of each month thereafter, the father will pay to the mother, monthly child support in the amount of $2256 based on an income of $114,755 less employment expenses of $11,487 for net income of $103,268 ;
(f) commencing December 1, 2016 in the first day of each subsequent month, the father will pay to the mother the following :
(i) the sum of $120 per month representing the father’s 81% contribution to the tutoring expense.
(ii) 81% of the boy’s hockey registration team fees and equipment. These expenses shall be payable upon the mother providing the father with the invoice for such expenses. The father shall pay us his proportional share of the expense of the 10 days of receiving proof from the mother;
(iii)81% of any net daycare expenses as well as dental expenses as they arise.
(g) the respondent’s obligation to support his children shall be the a charge against his estate;
(h) the respondent is to apply for life insurance in the amounts of $300,000, $400,000 and $500,000 by February 28, 2017 and to provide proof of his insurability, the cost of the policy in the amount of the policy to the mother by April 30, 2017. Upon receipt of this information, the parties may review the issue of the life insurance based on the information received at that time.
Costs
[134] If the parties are unable to resolve the issue of costs, the applicant shall provide her written cost submissions not to exceed three pages plus any offers to settle and a detailed bill of cost by December 12, 2016. The respondent shall file his written cost submissions not to exceed three pages plus any offers to settle and a detailed bill of costs by December 22, 2016.
Shelston J.
Released: December 1, 2016
CITATION: Zigiris v. Foustanellas 2016 ONSC 7528
COURT FILE NO.: FC-14-511
DATE: 2016/12/01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Felecia Georgina Zigiris
Applicant
– and –
Alexandros Peter Foustanellas
Respondents
REASONS FOR JUDGMENT
Shelston J.
Released: December 1, 2016