CITATION: McIntyre v. LaBoissonniere, 2017 ONSC 6682
COURT FILE NO.: FC-12-1991-1
DATE: 2017/11/15
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Tammy Darlene McIntyre
Applicant
– and –
Martin Jean LaBoissonniere
Respondent
Leonard Levencrown, counsel for the Applicant
Frederic Huard, counsel for the Respondent
HEARD: October 19, 2017
Endorsement
SHELSTON, J.
[1] The applicant has brought a motion for temporary spousal support and a contribution to the special expenses of the children of the marriage. The respondent opposes any spousal support being granted in the face of the separation agreement signed by the parties.
[2] The issues for this motion are the applicant’s entitlement to spousal support in the face of a separation agreement and the quantum of spousal support.
Background
[3] The parties married on July 22, 1989, separated on September 3, 2009 and were divorced by divorce order dated October 10, 2012.
[4] The divorce order granted no corollary relief as the parties entered into a comprehensive separation agreement dated September 24, 2011.
[5] There are two children of the marriage namely Jacob, born October 29, 1998, and Sophie, born January 16, 2001.
[6] By Application dated November 15, 2016, the applicant commenced an application where she sought spousal support, child support, custody of the children and contribution for special expenses, as well as costs.
[7] By Answer dated December 12, 2016, the respondent sought an order dismissing the application relief sought by the applicant based on the parties’ separation agreement dated September 24, 2011.
[8] The separation agreement dated January 24, 2011 replaced an interim separation agreement dated August 24, 2010. The scope of this 2011 agreement was set out in paragraph 1.4 which stated “they agreed to be bound by this agreement which settles on a final basis property and support issues between them”.
[9] In the said separation agreement, the parties agreed at paragraph 3.3 that commencing February 1, 2011 the respondent would pay to the applicant table child support for the two children the amount of $4509 per month, as well at his proportionate share of special or extraordinary expenses for the children. The parties agreed that the respondent’s annual income was $367,000 but could not agree on the income of the applicant. The parties agreed that there would be no employment income imputed to the applicant at that time.
[10] The agreement dealt with special or extraordinary expenses and had a variation provision based on a material change in circumstances, amongst other provisions.
[11] On the issue of spousal support, the parties agreed to two payments. In paragraph 4.1 of the agreement the parties agreed that part of the settlement of the spousal support claim to which the applicant was entitled would be resolved by a lump sum payment as well as a second segment related to fixed term spousal support, as set out in paragraphs 4.1, 4.2 and 4.3 of the separation agreement.
[12] The parties could not agree on what the lump sum amount was as the respondent believed it was $273,000 and the applicant’s position was that it was $129,000 based on the property transfers and the equalization payment agreed to by the parties.
[13] Paragraph 4.2 specifically stated:
4.2 The parties agree that whatever amount is owed by Tammy to Martin, it is deemed to be a lump sum spousal support paid by Martin to Tammy and is one factor related to the agreement on fixed term support paid to Tammy pursuant to this agreement.
[14] On the issue of fixed term support the parties agreed that the respondent would pay to the applicant $7,000 per month starting February 1, 2011 up to and including January 1, 2017. The agreement provided that with the final payment being made on January 1, 2017, spousal support shall be terminated and thereafter there shall be no spousal support payable by one party to the other, as set out in paragraph 4.3 of the agreement.
[15] In addition the parties agreed that the amount of periodic support paid by the respondent to the applicant was not to be increased and the fixed term was not to be extended unless there were circumstances that affected the respondent’s ability to pay spousal support, as set out in paragraph 4.8 of the agreement.
[16] The agreement in paragraphs 4.3, 4.5, 4.6, 4.7, 4.8, 4.9 and 4.10 all deal with the agreement being final, not subject to variation or to an extension, and that the parties agree that the objectives of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), have been met and it is fair to both parties.
[17] Further, this agreement was negotiated between two experienced family law practitioners with the assistance of a very experienced mediator in family law matters. Both parties made full financial disclosure and the parties had independent legal advice.
[18] In the motion argument, counsel for the applicant does not make any allegation regarding the validity of the agreement. The applicant argues the agreement does not meet the objectives of the Divorce Act.
Applicant’s Evidence
[19] The applicant seeks $7,500 per month as spousal support based on her notice of motion dated May 23, 2017.
[20] The applicant’s position is that the separation agreement dated January 24, 2011 is inherently flawed and does not uphold the fundamental principles nor the spirit of the Divorce Act because of the following:
a. the agreement was premised on the fact that the applicant would be self-supporting by January 1, 2017;
b. the child and spousal support were based on incomes that the parties did not agree to;
c. the agreement is unfair because it provides that the applicant was to incur the first $10,000 of extra expenses for the children, after which the respondent will share 70% of such costs and the applicant 30%, above the $10,000 threshold;
d. the equalization payment and support were calculated based on incomes and values that the parties at not agree to and the support was not calculated using the required federal schedule adjustments;
e. the agreement contemplated that the child and spousal support were sufficient to allow the applicant to raise the children in a style commensurate with the respondent, a successful dentist and a millionaire; and
f. the agreement contemplated that the applicant would not be required to support herself and her children from her capital.
[21] The mother alleges that she was required to give up her teaching career to raise the children of the marriage and that she had been out of the workforce for 18 years and has been unable to revive her career as a teacher.
[22] The mother’s evidence is that in the three years after separation she was the primary caregiver of the children who were ten and eight at the time. Where she resided there was no busing and she was required to do a significant amount of driving to deliver the children to school. She did some supply teaching at a private school but was unable to commit to full-time employment because she was raising the children by herself. Her evidence is that she sought out work once the children were getting older and she attempted to rejoin the teaching work force in private and public high schools as well as Algonquin College and Carleton University. As a result of being out of the workforce a significant amount of time, she was unsuccessful in her pursuits.
[23] By the fall 2014, the applicant was accepted in a dental hygiene program but gave up the program after 18 months due to her childcare responsibilities.
[24] In the spring of 2015 the applicant made inquiries into new business opportunities that culminated in the purchase of a gelato café in December 2015. The applicant acquired a small business loan in the amount of $350,000 and invested her personal capital in the business but she was unable to draw any income to support herself.
[25] The applicant alleges that the respondent has been uncooperative with her in making accommodations for the children such as not providing them with their own room, refusing to take them to extracurricular activities except on his weekends and failing to contribute to the children’s special expenses. Finally, the applicant submits she has been forced to live off credit and capital and has drawn from her RRSPs.
[26] The applicant says that as of February 2017, her only income was the $4,896 of monthly child support and that she has been forced to sell her house to reduce her obligations and monthly expenses. She requires at least $5,000 a month to meet her current expenses as she is no longer receiving spousal support.
[27] As of September 2017, the applicant found a contract position paying her an income of $40,000 per year, which is for a specific term ending June 2018.
Respondent’s Evidence
[28] The respondent’s position is that the separation agreement dated January 24, 2011 resolved all issues arising out of the parties’ separation and that the agreement was drafted with the assistance of experienced lawyers and a mediator, resulting in an agreement that maintains the principles and the spirit of the Divorce Act.
[29] The respondent states that it took approximately 15 to 16 months to negotiate the agreement and that he built his financial plan relying on the fact that the applicant would not request, and no court would order, future spousal support after January 1, 2017. It was never contemplated during any of the negotiations that the applicant would be entitled to any spousal support after January 1, 2017.
[30] The respondent’s position is that the court should not grant any spousal support to the applicant in the face of a valid separation agreement.
[31] The respondent’s evidence is that he has been paying the child support based on an income of $367,000 in accordance with the separation agreement and that since then child support has been indexed in accordance with paragraph 3.17 of the separation agreement, resulting in the current support payment of $4,896 per month.
[32] The respondent’s evidence is that his income in 2016 is $387,498 for personal and corporate income tax.
[33] The respondent’s evidence is effectively that he signed an all-encompassing agreement where he agreed that the spousal support would end on January 1, 2017, that the spousal support would not be extended beyond that date, that the parties agreed to uphold the agreement because they were basing their future lives on it and that it was an agreement that met the objectives of the Divorce Act, as confirmed by both parties with very experienced legal counsel and a mediator.
[34] The respondent has never missed a support payment, either for child or spousal support. The respondent argues that the applicant had a responsibility to take reasonable steps to become employable and that she has a Masters of Education and did not pursue that field of study. Further, the respondent submits that the applicant undertook an unviable business venture by opening an ice cream parlour, which was closed by June 2017.
[35] The respondent argues that the applicant made minimal efforts to become self-sufficient because the amount of money that she was receiving on a monthly basis was significant and she simply chose not to work in the face of an obligation to become self-reliant.
Analysis
[36] The applicant brings this motion pursuant to section 15.2 (2) of the Divorce Act which states:
15.2(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such a lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1).
[37] In considering a motion for temporary relief, the court is to take into consideration, pursuant to section 15.2 (4) of the Divorce Act, the condition, means, needs and other circumstances of each spouse, including
a) the length of time the spouses cohabitated;
b) the functions performed by each spouse during cohabitation; and
c) any order, agreement or arrangement relating to support of either spouse.
[38] Finally, as per section 15.2 (6), in making an interim order under section 15.2 (2) of the Divorce Act, any order should:
a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
b) 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.
[39] The leading case concerning a separation agreement and the weight to be given on the support application is Miglin v. Miglin, 2003 SCC 24, where the court set out a two-stage inquiry to be conducted by the judge. The first inquiry centres on the circumstances in which the agreement was negotiated and executed to determine if there any reason to render the agreement invalid. The second inquiry is to determine if at the time of the application, the agreement reflects the parties’ original intentions and whether the agreement is in substantial compliance with the objectives of the Divorce Act.
[40] In reviewing the jurisprudence for interim support applications in the face of a valid separation agreement in the decision of Chaitas v. Christopoulus (2004), 2004 CanLII 66352 (ON SC), 12 R.F.L (6th) 43 (Ont. S.C.J.), the court held at paragraph 12:
- Miglin does not specifically address interim orders. Under the Divorce Act, the conditions, goals and circumstances that a court is directed to consider are the same whether the court is making an interim or a final order. One of the circumstances is “any order, agreement or arrangement relating to support of either spouse”. Thus, Miglin and its direction concerning the weight to be given to this circumstance must clearly be considered at the interim stage in every case where there is a domestic contract. The question is how and to what extent this weighing can take place on an interim support application when the court has not had the benefit of hearing witnesses. According to the husband, where there is a valid domestic contract releasing spousal support rights, interim spousal support ought not be awarded as it is not possible on an interim motion to do the analysis required by the Supreme Court in Miglin. According to the wife, the court on an interim motion can and should undertake a Miglin analysis, and if the evidence presented on the motion raises a serious issue with respect to the contract, the contract should not act as a bar to the award of interim spousal support. [emphasis in original]
[41] At paragraph 21, Justice Sachs in Chaitas (supra) stated:
- In my view, the court, on an application for interim support, is required to conduct the Miglin analysis. If, on the evidence filed, a serious issue to be tried has been raised with respect to the circumstances under which the contract was negotiated and executed, then the contract will not act as a bar to the application. This is particularly the case in circumstances where, as here, if the contract is upheld the trial, there are assets in the applicant’s name that can be used to compensate the respondent for any support that should not have been paid. Interim orders are not final orders. As noted by Granger J. in Cafik, they are meant to provide “a reasonably acceptable solution to a difficult problem until trial”. [emphasis in original]
[42] In Jones v. Murray, [2005] O.J. No. 2761 (S.C.J.), the court held, at paragraph 10, that granting interim relief in the face of a valid separation agreement should only be granted where the party seeking such relief can demonstrate:
a) a substantial likelihood of success at trial,
b) that failure to do so will cause irreparable harm to the party seeking the relief, and,
c) that granting the relief will not cause harm to the other party which cannot be compensated.
[43] In Da Silva v. Da Silva, [2005] O.J. No. 6248 (S.C.J.) the court was faced with a request for spousal support in the face of separation agreement that the moving party sought to set aside. The Court held that it could not consider the Miglin test and the objectives of the Divorce Act in the face of one party who maintains that there is a valid separation agreement and the other who claims otherwise. In Da Silva, the Court ruled there was insufficient evidence to be able to determine whether or not to set aside the waiver of spousal support, and denied any claim for temporary support.
[44] In this case, counsel for the applicant concedes that her application to set aside the agreement is based on the second inquiry stage of the Miglin analysis. The question is whether or not I can conduct an inquiry on an interim motion to determine if the agreement meets the objectives of the Divorce Act.
[45] Based on my review of the separation agreement dated September 24, 2011, the agreement envisaged that the applicant would be self-reliant by January 1, 2017, 7 ½ years after the parties separated. The evidence that I received from the applicant’s affidavit does not provide a very detailed history of her efforts to find employment and simply relies on general statements that she sought employment, was unsuccessful and consequently decided to open her own business. The main thrust of the applicant’s argument is that the court should grant the support because the agreement is so patently unfair and fails to meet the objectives and spirit of the Divorce Act.
[46] I have considered the following facts:
a) the separation agreement dated January 24, 2011 is a valid agreement at the date this motion was argued;
b) the applicant does not contest the validity concerning the circumstances regarding the drafting and execution of the separation agreement;
c) the applicant’s argument relates to the agreement being unfair and failing to meet the objectives of the Divorce Act by terminating spousal support on January 1, 2017;
d) the jurisprudence provides that a valid separation agreement is not a bar to a granting of temporary spousal support;
e) the applicant has the burden of proof to provide evidence to allow the court to conduct a stage II analysis based on the Miglin decision;
f) the applicant does not allege that she did not understand the terms of the separation agreement;
g) the respondent’s evidence is that he relied upon the terms of the separation agreement;
h) the applicant receives child support and employment income of approximately $98,000 as of the date of this motion;
i) the applicant has assets worth $1,328,448.39 and debts of $1,485,203.08 of which $647,000 is related to her decision to open a gelato store in 2015; and
j) the said debts of $647,000 were obtained in the last two years before the termination of spousal support on January 1, 2017.
[47] Considering all the circumstances, I find that I cannot conduct a stage II Miglin analysis based on the evidence presented. The evidence from the applicant does not provide sufficient details of her efforts to become self-employed. Further, I find that a significant part of the applicant’s financial circumstances is related to her failed business. In addition, the applicant has failed to provide information as to an urgency. She has approximately $98,000 of combined employment income and child support.
[48] I do not find on the evidence before me sufficient evidence to be able to determine, at this stage, to be able to set aside the waiver of spousal support. I dismiss the applicant’s motion for temporary spousal support. The request for support can be decided by the trial judge after hearing all the evidence at which time the court can conduct the required stage II analysis of Miglin.
[49] Even though the issue of section 7 expenses was set out in the notice of motion, there was no argument or documentary evidence upon which the court could adjudicate the issue and consequently that issue is adjourned.
[50] The respondent was a successful party on this motion. I request that the parties attempt to resolve the issue of costs between themselves. If they are unable to do so, the respondent shall provide his cost submissions, not to exceed three pages, plus a detailed bill of costs and any offers to settle, by November 24, 2017. The applicant is to provide her responding cost submissions by December 1, 2017, with said submissions not to exceed three pages plus a detailed bill of costs and any offers to settle.
Shelston J.
Released: November 15, 2017
CITATION: McIntyre v. LaBoissonniere, 2017 ONSC 6682
COURT FILE NO.: FC-12-1991-1
DATE: 2017/11/15
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Tammy Darlene McIntyre
Applicant
– and –
Martin Jean LaBoissonniere
Respondent
ENDORSEMENT
Shelston J.
Released: November 15, 2017