Court File and Parties

COURT FILE NO.: FC-11-537-2 DATE: 2017/05/05 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: David Franklin Gauthier, Applicant AND Mary Catherine Gauthier, Respondent

BEFORE: Justice A. Doyle

COUNSEL: Jack E. Pantalone, for the Applicant Self-represented, for the Respondent

HEARD: April 20, 2017

Endorsement

[1] The applicant, Mr. Gauthier, brings a motion to change the order of Justice Aitken dated February 3, 2015 (Final Order) as follows:

• termination of child support payable by him;
• adjusting child support and spousal support retroactively to January 1, 2015; and
• commencing January 1, 2017, the Respondent, Mrs. Gauthier pay spousal support in the amount of $1272 per month to Mr. Gauthier.

[2] Mrs. Gauthier is requesting that Mr. Gauthier’s annual income be imputed at $55,000. She submits that Mr. Gauthier has not made reasonable efforts to become financially self-sufficient. Consequently, no spousal support is payable or alternatively, she is prepared to pay $634 per month. She claims that she does not owe any retroactive payments as of January 1, 2016.

[3] On consent, the Court orders termination of child support for Patrick as of April 30, 2016.

Issues

(1) Has there been a material change of circumstances? (2) Should the court impute income to Mr. Gauthier? (3) What is the retroactive amount of support payable? (4) What is the ongoing spousal support payable? (5) Should Mr. Gauthier pay Mrs. Gauthier the amount of $727.60 as his share of Patrick’s health care premium for family coverage? (6) Should there be a reduction of the face amount of life insurance of $62,400 to be maintained by Mrs. Gauthier as security for spousal support?

Background

[4] The parties were married on July 25, 1987 and separated on May 4, 2010. They had two children, Michael born June 26, 1989 and Patrick born June 8, 1994.

[5] At the time of the separation, Mr. Gauthier was 55 years of age and employed as a manager at Baton Rouge restaurant earning $40,000 per year. Mrs. Gauthier was 47 years of age and employed with the Canadian Pediatric Society earning almost $90,000 per year.

[6] Mr. Gauthier is now 61 years old, suffers from diabetes and works for a restaurant earning approximately $44,000 per year. Mrs. Gauthier is 54 and earns approximately $87,000 per year.

[7] The Divorce Order of Justice Warkentin (“Divorce Order”) dated January 21, 2013 incorporates the parties’ Minutes of Settlement and provides for the following:

• Mr. Gauthier would pay $396 per month as child support for Patrick who was in his first year of a four year program at the University of Ottawa; Support was based on his annual income of $43,867;
• the parties would share the s.7 expenses: Mrs. Gauthier would pay 57% of these expenses and Mr. Gauthier would pay 43%;
• the parties agreed to mutually exchange tax returns and annually adjust the table amount of child support on July 1st for the calendar year retroactive to January 1st;
• Mrs. Gauthier would pay spousal support in the amount of $1000 per month. Her annual income was $85,000;
• spousal support would end when either party died (provided that Mrs. Gauthier had the appropriate life insurance policy) or when Mrs. Gauthier retired (but not before she attained age 60);
• spousal support would be varied upon a material change of circumstances;
• the amount of spousal support shall not increase as a result of child support terminating;
• spousal support would increase on an annual basis by the cost of living index; and
• the approximate amount of $88,000 of Mrs. Gauthier’ pension plan with HOOP Plan would be transferred to Mr. Gauthier’s LIRA.

[8] After the Divorce Order, Mr. Gauthier’s employment changed as follows:

• in April 2013, he found new employment with an income increase; and
• in June 2014, his work terminated.

[9] In June 2014, Mr. Gauthier initiated a Motion to Change the Divorce Order. He found new employment in October 2014.

[10] The parties agreed to the Final Order amending the Divorce which provides for the following:

• Mrs. Gauthier was to pay retroactive spousal support for the period from May 1, 2013 to December 1, 2014;
• commencing January 1, 2015, Mrs. Gauthier would pay the amount of $634 per month as spousal support;
• child support was retroactively adjusted for 2013 and 2014 requiring Mr. Gauthier to pay a retroactive amount;
• the cost of living index in the Divorce Order was eliminated;
• by July 1, 2016, the parties would exchange their complete tax returns, schedules, receipts and Notices of Assessment to recalculate child and spousal support and s. 7 expenses for the year 2015. The amount would be retroactive to January 1, 2015. In recalculating spousal support, the parties agreed to use the low-range of the Spousal Support Advisory Guidelines (SSAG’s);
• the parties agreed that there would be no recalculation of child and spousal support prior to January 1, 2015 and
• all other terms of the Divorce Order would remain in full force and effect.

[11] Mr. Gauthier lost his employment in November 2015, prior to the review of support anticipated in July 2016. He found work at another restaurant, 3 Brasseurs (also known as 3 Brewers), in Kanata on May 16, 2016 earning $44,000 per annum.

[12] The parties were not able to agree on the retroactive adjustments to January 1, 2015 as provided for in the Final Order.

[13] Mr. Gauthier has been residing with his partner who has a current income of $58,000 per year since 2013. He was in a serious relationship at the time of the Divorce Order and they were living together at the time of the Final Order.

[14] Mr. Gauthier’s annual income is as follows:

• 2015: $41,709
• 2016: $38,269
• 2017: $43,000.

[15] Mrs. Gauthier’s annual income has been approximately $87,000 for the past several years.

(1) Has there been a material change of circumstances?

Positions of the parties

[16] Mr. Gauthier is asking for a variation as he lost his employment in November 2015 and was in receipt of Employment Insurance benefits from January to May 2016. He was able to secure employment in June 2016 with an annual salary of $44,000. He states that the loss of his job created a material change of circumstances. In addition, he submits that the Final Order requires an annual adjustment based on the parties’ respective incomes.

[17] Mrs. Gauthier denies there has been a material change of circumstances justifying a change of the Final Order. Mr. Gauthier’s income has not changed and he earns the same employment income as at the date of the Divorce Order and the Final Order. Secondly, she states his financial net worth has increased as shown in his financial statements. Thirdly, the termination of child support by virtue of the Divorce Order does not entitle him to an increase of spousal support.

The Law

[18] Section 17 of the Divorce Act, 1985, c. 3 (2nd Supp.) (the “Divorce Act”) is reproduced below:

(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, (a) a support order or any provision thereof on application by either or both former spouses; or (b) a custody order or any provision thereof on application by either or both former spouses or by any other person.

(2) A person, other than a former spouse, may not make an application under paragraph (1)(b) without leave of the court.

(3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought.

(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.

(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.

[19] In dealing with variation orders, the Court must apply the principles governing variations in child and spousal support set out by the Supreme Court of Canada in the case of L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775. At para. 50, the Supreme Court stated the following regarding variations of spousal support orders, “If known at the time, would likely have resulted in different terms”. Once a material change is found, the court should limit itself to making only the variation justified by that change. The Supreme Court stated that:

[35] In general, a material change must have some degree of continuity, and not merely be a temporary set of circumstances (see Marinangeli v. Marinangeli (2003), 66 O.R. (3d) 40, at para. 49). Certain other factors can assist a court in determining whether a particular change is material. The subsequent conduct of the parties, for example, may provide indications as to whether they considered a particular change to be material (see MacPherson J.A., dissenting in part, in P. (S.) v. P. (R.), 2011 ONCA 336, 332 D.L.R. (4th) 385, at paras. 54 and 63).

[36] The threshold variation question is the same whether or not a spousal support order incorporates an agreement: Has a material change of circumstances occurred since the making of the order? (See Willick; G. (L.); Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920.)

[20] Marinangeli v. Marinangeli, [2003] O.J. No. 2819, the Ontario Court of Appeal stated that a change of circumstances must be something that has some measure of continuity.

[21] As stated in Gray v. Rizzi [2016] ONCA 152:

…. to ascertain whether a change in circumstances has occurred, a court must consider whether the change advanced was “material” – meaning a change that, “if known at the time, would likely have resulted in different terms” – and a change with some degree of continuity, and not merely a temporary set of circumstances: L.M.P., at paras. 32 and 35. A material change in the financial means or circumstances of a payor can constitute a change in circumstances for the purposes of a motion to change child or spousal support: Federal Child Support Guidelines, s. 14(a); Divorce Act, s. 17(4.1).

[22] As stated in Hersey v. Hersey, 2009 ONCA 582, the termination of child support can constitute a change in circumstances in certain situations.

[23] In Holman v. Holman, 2015 ONCA 552, the Ontario Court of Appeal heard an appeal from a motion to change where the child support had ended as the child had completed a degree. The court found that the motion judge should have for the period post-child-support increased that support based on the without child formula in the Spousal Support Advisory Guidelines (the “SSAGs”).

Decision

[24] In Willick v. Willick, [1994] 3 S.C.R. 670 at p. 687, the Supreme Court pronounced that an application for a variation order is not an appeal of the original order. This court is entitled to assume the correctness of the Divorce Order and the Final Order. Therefore, Mrs. Gauthier’s submissions and allegations regarding the negotiations, bad faith, lack of financial disclosure and misrepresentations made at the time of the previous court orders and the finalization of the same are not relevant.

[25] The Court finds that there has been no material change of circumstances because:

• the loss of Mr. Gauthier’s employment from November 2015 to May 2016 which resulted in a reduction of his income to $41,709 in 2015 and to $38,269 in 2016 was not material and lacked continuity;
• there was no evidence of a material change in the parties’ means, conditions and circumstances since the Final Order; and
• termination of child support did not amount to a material change as set out in the Divorce Order.

(i) Mr. Gauthier’s income

[26] In accordance with the Divorce Act, the Court must determine if there has been a change in the condition, means, needs or other circumstances of either party since the Final Order.

[27] Firstly, Mr. Gauthier is currently earning $43,000 per year which is the income he was earning at the time of the Final Order.

[28] He was earning $43,000 at the time of the Final Order but ended up earning $41,000 for 2015 despite his unemployment.

[29] This is not considered a material change. At the time of his loss of employment, he felt compelled to ask for an adjustment and more spousal support. But in 2015 his income reduction from $43,000 to $41,000 per annum is approximately 5% less and this does not justify a variation of the Final Order.

[30] Then, in 2016, his income from employment and Employment Insurance benefits was $38,000 which is approximately a reduction 10% in his income from the income at the time of Final Order. His unemployment ended in May 2016. Again, this is not material nor a constant that would justify a material change of circumstances.

[31] Mr. Gauthier is now in the same position as he was at the time of the Final Order with respect to his income. Therefore, the changes to Mr. Gauthier’s income were not substantial or material within the meaning of “material” as set out in Gray v. Rizzi to justify a variation.

(ii) Parties’ circumstances

[32] Secondly, the Court will proceed with a consideration of the relative economic positions of Mr. and Mrs. Gauthier at the time the Final Order was made and thereafter.

[33] At the time of the Aitken’s Order, Mr. Gauthier was earning $43,000 per year. He was living with Mary Darlene Wood at that time as well.

[34] Mrs. Gauthier’s income has not changed and she has not repartnered.

[35] Mr. Gauthier’s 2015 financial statements filed at the time of the Final Order show his annual expenses are $75,000, and values of assets of $430,000 and debts of $134,000.

[36] Ms. Wood earns $50,000 and pays 50% of the household expenses.

[37] His current financial statement dated April 13, 2017 indicates gross assets of $430,000. His debt load includes a mortgage, lines of credit, car loan, legal fees, and debt to Canada Revenue Agency for 2015 and 2016 totaling $133,000. His partner now earns $58,000 per year.

[38] His annual expenses have been reduced to $62,755 and his partner pays for ½ of the household expenses. Therefore, he has shown a marginal financial improvement as his annual expenses have been reduced and his partner earns slightly more.

[39] Mrs. Gauthier’s financial statement dated April 7, 2017 shows income of $87,400 per year. She owns a home worth $300,000, a 2015 Tucson, RRSP’s of $86,000 and her HOOP pension. Her debts include a mortgage of $220,000, car loan of $20,000, credit card debt and a debt to Canada Revenue Agency approximately $5800. Her 2015 financial statement was not filed. Therefore, I am unable to make the comparison for her. Mrs. Gauthier does not provide evidence of a significant change in her financial situation since the Final Order.

[40] Therefore, the parties’ current financial positions do not demonstrate that there has been a material change of circumstances since the Final Order which would justify a variation.

(iii) Termination of child support

[41] Thirdly, the termination of child support may be a basis for a material change.

[42] See s. 15.3 of the Divorce Act:

(1) Where a court is considering an application for a child support order and an application for a spousal support order, the court shall give priority to child support in determining the applications.

(2) Where, as a result of giving priority to child support, the court is unable to make a spousal support order or the court makes a spousal support order in an amount that is less than it otherwise would have been, the court shall record its reasons for having done so.

(3) Where, as a result of giving priority to child support, a spousal support order was not made, or the amount of a spousal support order is less than it otherwise would have been, any subsequent reduction or termination of that child support constitutes a change of circumstances for the purposes of applying for a spousal support order, or a variation order in respect of the spousal support order, as the case may be.

[43] As stated in Lockyer v. Lockyer, [2000] O.J. No. 2939, Section 15.3 addresses the situation whether the payor of spousal support bears the financial responsibility and care of the children.

[44] In Tierney-Hynes v. Hynes (2005) O.J. N. 2661, the Ontario Court of Appeal was dealing with a case where spousal support was not ordered or was terminated in the initial application. The court stated:

[55] Parliament enacted s. 15.3 to codify the jurisprudence requiring a court to give priority to the best interests of a child, in this circumstance by giving child support priority over spousal support. The section explicitly recognizes that the implementation of that priority could result in a reduced amount of spousal support or no spousal support. To remedy that situation, the section provides that a later reduction or termination of child support constitutes a change of circumstances for the purposes of either a subsequent original application for spousal support or an application to vary spousal support.

[56] In other words, if an application for spousal support is dismissed in favour of an order for child support, the affected spouse is entitled to bring a subsequent original application for spousal support or an application to vary spousal support. A spouse in this situation can move in and out of spousal support.

[45] See LMP:

[38] The agreement may address future circumstances and predetermine who will bear the risk of any changes that might occur. And it may well specifically provide that a contemplated future event will or will not amount to a material change.

[39] Parties may either contemplate that a specific type of change will or will not give rise to variation. When a given change is specified in the agreement incorporated into the order as giving rise to, or not giving rise to, variation (either expressly or by necessary implication), the answer to the Willick question may well be found in the terms of the order itself. That is, the parties, through their agreement, which has already received prior judicial approval, have provided the answer to the Willick inquiry required to determine if a material change has occurred under s. 17(4.1). Even significant changes may not be material for the purposes of s. 17(4.1) if they were actually contemplated by the parties by the terms of the order at the time of the order. The degree of specificity with which the terms of the order provide for a particular change is evidence of whether the parties or court contemplated the situation raised on an application for variation, and whether the order was intended to capture the particular changed circumstances. Courts should give effect to these intentions, bearing in mind that the agreement was incorporated into a court order, and that the terms can therefore be presumed, as of that time, to have been in compliance with the objectives of the Divorce Act when the order was made.

[46] In their Minutes of Settlement, the parties contemplated that Mr. Gauthier’s obligation to pay child support ending would not entitle him to ask for an increase of spousal support. In fact, this termination would actually improve his financial situation.

[47] Given this term of the Court order, the Court is not prepared to find that the termination of child support constituted a material change of circumstances. Certainly, the Court must defer to the parties’ agreement and Final Order.

Annual Review of Support

[48] Even though the court has found that there has not been a material change of circumstances, the Court finds that pursuant to the Divorce Order and Final Order, it will be required to do following:

• adjust spousal and child support for 2015 pursuant to para. 13 of the Final Order; and
• adjust child support for 2016 pursuant to para. 3.6 of the Divorce Order.

[49] The Final Order provides that:

13. By July 1, 2016, the parties shall exchange their complete income tax returns with all schedules and receipts as well as their notices of assessment and any other documentation required to allow a recalculation of child and spousal support as well as section 7 expenses to occur for 2015. The parties specifically agree that there shall be no recalculation of either child support or spousal support for the period prior to January 1, 2015. In recalculating spousal support, the low-range of the Spousal Support Guidelines shall be used.

14. The parties shall also provide evidence of their year-to-date income by July 1, 2016.

15. The parties and their counsel will meet within 30 days to attempt to resolve any changes to be made to child and spousal support for 2016 and ongoing.

16. Unless specifically varied by this court order, all other terms of the order of Justice Warkentin dated January 21, 2013 shall remain in full force and effect.

[50] The Court notes that the parties agreed to adjust child and spousal support for 2015 only. They had planned to meet and discuss 2016 and ongoing but were not able to resolve this issue.

[51] The annual adjustments in the Divorce Order are for child support only. The Divorce Order states as follows:

3.6 The parties will adjust the table amount of child support paid each calendar year based on the parties’ actual incomes for that calendar year. By no later than July 1st of each year, the parties shall provide each other with a copy of their income tax returns, as filed and Notice of Assessment for the prior calendar year (the “applicable calendar year”). The parties shall then determine the appropriate Table amount of child support for the applicable calendar year, in accordance with the Child Support Guidelines. If the Applicant has underpaid the Table amount of his child support obligation for the applicable calendar year, he shall provide the Respondent with the additional amount owing for the applicable calendar year within 30 days. If the Applicant has overpaid the Table amount of his child support obligation for the applicable calendar year, he may deduct the overpayment from his current child support over 1 month in equal instalments.

3.7 In addition to a yearly review, either party may seek a change in child support if there is a material change in the condition, means, needs or other circumstances of either party or the child that would affect child support.

[52] There is no review adjustment for spousal support in the Divorce Order. It provides for a change in the event of a material change of circumstance, even if the change is foreseen or foreseeable. The change may be: o) in either party’s financial position; p) in either party’s health or any similar change.

[53] The Divorce Order also reads:

4.6 The amount of spousal support shall not increase as a result of child support terminating.

4.7 On the first of December (“indexing date”) in each year, starting on December 1, 2013, spousal support will increase by the indexing factor for the third month immediately before the indexing date in that year.

(2) Should the court impute income to the husband?

Position of the parties

[54] Before determining retroactive adjustments to child and spousal support (for 2015 only) and ongoing spousal support in accordance with the Final Order, the Court must determine whether to impute income to Mr. Gauthier.

[55] Mrs. Gauthier submits that Mr. Gauthier has failed to make all reasonable efforts to become self-sufficient and he is intentionally underemployed. She is asking the Court to impute an annual income of $55,000 to Mr. Gauthier for the following reasons:

• This was his average income during the latter part of their marriage;
• upon being terminated from Milestones’ restaurant in November 2015, he took a vacation rather than looking for employment;
• he has applied for positions at the low end of his capability and earning potential so he can maximize the support he receives;
• given his education, experience and bilingualism, he is intentionally underemployed so that he could maximize his receipt of spousal support;
• to maximize his income, he could avail himself of CPP payments;
• he held senior management positions for the majority of marriage, and in the last 4 years he has had 4 lower management positions;
• while he was in receipt EI benefits, he vacationed out of the country making him ineligible for Employment Insurance payments;
• in October 2014, he left Milestones after 1 year and said it was a lack of work but the position was re-posted within weeks of his firing;
• he was earning $74,000 at Boston Pizza in 2013 to 2014 (which he denies);
• he accepted a lower paying job in May 2016 at 3 Brewers;
• he did not seek employment from November 1, 2015 until the end of January 2016;
• there is no proof that he was in a 3-month interview process with Jack Astors’ Restaurant when he lost his job in November 2015; and
• he has not provided all Court ordered financial disclosure.

[56] Mr. Gauthier submits the following:

• he is in the restaurant business which is volatile and has frequent employment changes;
• he has always made the best efforts to find employment;
• he has been successful in finding employment within months of being terminated from work;
• he was not dismissed for cause nor failure to perform his duties;
• his stamina is not the same due to age – his current job requires to work a shift or two until 2 a.m. on a weekly basis;
• he says the Record of Employment from Milestones states there was a lack of work; and
• after his dismissal in November 2016, he immediately contacted Jack Astor’s. He had a second interview with Jack Astor’s. The interview process lasted 3 months but they did not make an offer of employment.

Law

[57] The issue is whether the husband has been willfully underemployed as set out under s. 19 of the Child Support Guidelines, S.O.R./97-175, as amended (“Guidelines”).

[58] Section 19 of the Guidelines provides:

19(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following: (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 a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the parent or spouse.

[59] Drygala v. Pauli states the court must consider the following three questions:

1. Is the spouse intentionally under-employed or unemployed?
2. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?
3. If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?

[60] The Drygala case dealt with imputing income for the purposes of child support, but this test is equally applicable to claims for spousal support. See Crowe v. McIntyre, 2014 ONSC 7106; Rilli v. Rilli, 2006 CarswellOnt 6335 (S.C.J.); Perino v. Perino, 2007 CarswellOnt 7171 (S.C.J.); Decker v. Fedorsen, 2010 ONCJ 618, 2010 CarswellOnt 9891 (O.C.J.).

[61] There is no need to find intent to avoid child support obligations to impute income under section 19 of the Guidelines. At paragraph 28 the Court in Drygala states:

Read in context and given its ordinary meaning, "intentionally" means a voluntary act. The parent required to pay is intentionally under-employed if that parent chooses to earn less than he or she is capable of earning. That parent is intentionally unemployed when he or she chooses not to work when capable of earning an income. The word "intentionally" makes it clear that the section does not apply to situations in which, through no fault or act of their own, spouses are laid off, terminated or given reduced hours of work.

[62] There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their dependents: Thompson v. Thompson, 2013 ONSC 5500.

[63] The Court must have a rational and solid evidentiary basis to justify an imputation. The onus is on the person requesting an imputation of income to establish this evidentiary basis: Homsi v. Zaya, 2009 ONCA 322, 65 R.F.L. (6th) 17.

[64] In order to impute income to a parent pursuant to section 19 of the Guidelines, the Court must exercise a test of reasonableness. The Court must have regard to the payor’s capacity to earn in light of his employment history, age, education, skills, health, available employment opportunities, and the standard of living enjoyed during the marriage: Algner v. Algner, 2008 SKQB 132.

Decision

[65] Again, Mrs. Gauthier raises events that predate the Final Order. The Court will only consider events subsequent to the Final Order.

[66] Mrs. Gauthier is suspicious with respect to his recent terminations as well. However, the Court does not determine issues based on suspicions.

[67] The Court does not have the full record before it to determine the reasons for all of Mr. Gauthier’s terminations from employment. Clearly, Mr. Gauther is in the same restaurant industry as during the marriage, at the time of the separation and at the time of divorce order and final order. The Court accepts his evidence that his experience in this industry has been that there have had numerous changes of employment.

[68] He is now working at a restaurant closer to home and avoiding the long commute to and from work and the related vehicle costs.

[69] The Court finds that Mrs. Gauthier has not met the onus of establishing that Mr. Gauthier’s is underemployed in step one of the Drygala case because:

• during their marriage he worked in the restaurant industry so that he is working in the area of his expertise, skills set and work experience;
• he has had several changes of employment during the last decade of their marriage;
• he was not unemployed for long after termination of employment as he found work within months;
• he has been earning this similar income in the range of $44,000 for the past 10 years;
• given his age and status of life, the court does not expect he can change careers or find other more gainful employment;
• The husband had fluctuations in his income during the marriage and had restaurant related income.
• Incomes:

Year	Mrs. Gauthier	Mr. Gauthier
2009	$90,436	$44,092
2008	$84,645	$45,401
2007	$81,846	$45,350
2006	$70,790	$60,954
2005	$69,178	$60,102
2004	$80,874	$96,187
2003	$77,548	$80,353
2002	$68.144	$74.096
2001	$61,348	$73,136

• Average income from 1990 to 2009: Mrs. Gauthier $59,876 and Mr. Gauthier: $53,968.

[70] During that time period, he had five different employers in the restaurant business.

[71] Justice Engelking’s order dated December 12, 2016 provides for exchange of financial disclosure within 30 days. Both parties allege that the other party did not comply with disclosure.

[72] Mrs. Gauthier alleged that Mr. Gauthier has not complied with disclosure order of previous judges and Justice Engelking.

[73] He denies this and states that she has not provided the credit card statements ordered, no confirmation of the joint account with her mother and she has not provided an updated pension statement. The Court does not find that Mr. Gauthier has failed to provide Court ordered disclosure.

[74] I now turn to the issue of CPP benefits. Should Mr. Gauthier be applying for CPP benefits? No evidence was led on the amount that he would receive at this time or if he waited until he turned 65 years of age.

[75] The Court finds that it is not unreasonable for Mr. Gauthier not to apply for his CPP pension as he is gainfully employed.

[76] In conclusion, there will be no imputation of income to Mr. Gauthier.

(3) Is there a retroactive amount of support payable?

Decision

[77] Pursuant to the annual review in the Final Order, there must be an adjustment of child and spousal support retroactive to January 1, 2015 for the year 2015.

[78] Mrs. Gauthier raises the issue of her therapy costs that she attributes to the abuse suffered by her from Mr. Gauthier. This is the first time Mr. Gauthier has heard of this allegation. She has not produced receipts. In any event, the review adjustment calls for an adjustment based on incomes only.

[79] Therefore the retroactive adjustment is as follows:

• 2015:
  • Based on his annual income of $41,709, Mr. Gauthier should have paid $392 per month in child support. He paid $388 per month and therefore he owes Mrs. Gauthier the amount of $48.00 for 2015.
  • Based on the low range of spousal support, Mrs. Gauthier should have paid $702 per month and actually paid $634 per month. She therefore owes Mr. Gauthier the amount of $816.00.
• January to April, 2016:
  • Based on Mr. Gauthier’s annual income of $38,268.96, he should have paid $339 per month. He actually paid $388 per month for 6 months for a total of $2,328. Since Patrick was no longer dependent after April 30, 2016, he was only responsible to pay $339 for 4 months for a total of $1,356. In 2016, he overpaid $972.

[80] Given the terms of the previous court orders there will be no changes to the amount of spousal support payable in 2016.

(4) What is the amount of ongoing Spousal Support?

Parties’ Positions

[81] Mr. Gauthier is asking for $1,242 per month as the low end of SSAG’s. He acknowledges that the termination of child support should not increase the level of spousal support.

[82] At the minimum, it should be $1,000 per month as per Divorce Order.

[83] Mrs. Gauthier wants no support payable by as of January 1, 2015 or, in the alternative, remains the same at $634 per month.

Analysis

[84] Given the terms of the previous court orders, spousal support was not to be annually adjusted and reviewed (except for the year 2015). There has not been a material change of circumstances and hence spousal support will continue at $702 per month.

(5) Should Mr. Gauthier pay Mrs. Gauthier the amount of $727.60 as his share of Patrick’s health care premium for family coverage?

[85] The Final Order does not change the provisions dealing with s. 7 expenses as set out in the Divorce Order.

[86] Para. 32(b) of the Divorce Order required that Mr. Gauthier pay 43% of s. 7 expenses listed in 3.3 which are tuition fees, books and other school expenses as well as their health, medical and dental expenses that are not covered by an insurance plan.

[87] Para. 5 states that Mrs. Gauthier will maintain the children as beneficiaries of the extended health insurance through her employment, so long as these benefits are available to her. Medical expenses not covered by either party’s extended health insurance are special or extraordinary expenses and will be paid according to the applicable special or extraordinary expense sections above.

[88] There is nothing in either order that requires Mr. Gauthier to pay a portion of the health care premium coverage for family. This request is dismissed.

(6) Should there be a reduction of the face amount of life insurance of $62,400 to be held Mrs. Gauthier as security for spousal support?

[89] The Final Order provided for a decrease of life insurance from $100,000 to $62,400 (para 10 varies para. 6.1 of the Divorce Order).

[90] Given that spousal support has slightly increased from the Final Order and there has not been a finding of material change of circumstances, the Court is not prepared to reduce the face amount. Security is still required for spousal support.

Conclusion

[91] Commencing January 1, 2015 to, and including December 1, 2015, Mr. Gauthier will pay child support the amount of $392 per month. Any underpayment will be paid by December 31, 2017.

[92] Commencing January 1, 2016 to, and including April 1, 2016, Mr. Gauthier will pay child support the amount of $339 per month. Any overpayments will be repaid to Mr. Gauthier by December 31, 2017.

[93] Para. 7 of the final order shall be varied so that Mr. Gauthier’s child support obligation is terminated effective April 30, 2016.

[94] Commencing January 1, 2015, Mrs. Gauthier will pay spousal support in the amount of $702 per month per year. Any retroactive amounts owed will be paid by December 31, 2017.

[95] Mr. Gauthier’s obligation to maintain life insurance to secure his child support obligation is terminated.

[96] Mrs. Gauthier’s obligation to maintain life insurance in the face amount of $62,400 to secure spousal support continues as per the Divorce Order.

[97] All other terms set out in the Divorce Order and Final Order remain in full force and effect.

[98] If the parties cannot agree on the issue of costs, Mr. Gauthier may provide his two-page written submissions with his bill of costs and any offers to settle by May 19, 2017 and Mrs. Gauthier may provide her two-page written submissions with her bill of costs and any offers to settle by June 2, 2017. Mr. Gauthier may file a one-page reply by June 16, 2017.

Justice A. Doyle Date: May 5, 2017

COURT FILE NO.: FC-11-537-2 DATE: 2017/05/05 ONTARIO SUPERIOR COURT OF JUSTICE RE: David Franklin Gauthier, Applicant AND Mary Catherine Gauthier, Respondent BEFORE: Justice A. Doyle COUNSEL: Jack E. Pantalone, for the Applicant Self-represented HEARD: April 20, 2017 ENDORSEMENT Madam Justice A. Doyle Released: May 05, 2017