CITATION: Leduc v. Leduc, 2017 ONSC 6987
COURT FILE NO.: FC-15-2553
DATE: 2017/11/23
COURT OF ONTARIO,
SUPERIOR COURT OF JUSTICE, FAMILY COURT
RE: Nicole Leduc, Applicant
AND:
Jean-François Leduc, Respondent
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Michael Wonham, for the Applicant
Jean-François Leduc, Respondent, acting in person
HEARD: September 25th – 29th, 2017
REASONS FOR JUDGMENT
[1] This matter came on for trial in the last week of September. Although the parties had previously resolved almost all of the issues arising from the breakdown of their marriage, they had been unable to resolve certain narrow financial issues.
[2] It is unfortunate it has come to this. During the course of a marriage of 14 ½ years the parties shared many interesting experiences and had two children together. During the marriage they each made significant, nuanced and multi-faceted contributions to child rearing and family finances. It was financial stress that ended the marriage and which drove the trial. There is irony in this. Separation and divorce are widely understood to be the largest financial setback Canadians may experience in their lifetime and a trial is the most expensive way to resolve the dispute.
[3] The trial focused on three issues. Firstly, was the question of the income of each party for support purposes. Secondly, was the question of retroactivity and the treatment of post-separation expenses. The third issue was equalization of net family property. With respect to the latter, the parties have agreed on the values and the mathematical calculation. The question is how that should be satisfied and if it is to be done by way of pension division, whether tax consequences should be considered?
[4] I should note that Mr. Leduc was represented by counsel during much of the litigation but he represented himself at trial. He is a police officer and not entirely unfamiliar with court proceedings. Nevertheless, it is very difficult to be both advocate and witness. He was very well organized, respectful of evidentiary rulings and reasonably able to differentiate between evidence, cross examination and argument. Mr. Leduc’s approach to the trial was marred however by his fixation on categorizing the Mrs. Leduc’s behaviour as fraudulent and his insistence on demonizing her lawyer.
Factual Background
[5] The major events of the marriage are undisputed and many of the facts were the subject of formal admissions. The parties met in Brandon, Manitoba and were married there in August of 1997. The early years of their marriage were characterized by changes in domicile and employment. Initially these changes were because of the wife’s employment as a teacher but during most of the marriage, relocation was due to the husband’s employment with the RCMP.
[6] During the marriage, the parties lived in Brandon, Manitoba and then in Poplar Hill, a remote first nations community in North Western Ontario. They returned to Brandon, then relocated to Fort Simpson, NWT and then Norman Wells, NWT. Most recently they have been living in Ottawa.
[7] The applicant worked full time as a teacher for two years in Poplar Hill. During that time, the respondent took leave from his position with the Canadian Forces to follow her. They returned to Manitoba in 1998. During the time in Poplar Hill, the respondent was only able to find part time work but on their return to Manitoba he qualified and was hired in corrections while the applicant wife worked at a number of short term or part time jobs. In the year 2000, the respondent was accepted into the RCMP and completed his training in Regina while the applicant remained in Brandon.
[8] In 2001 after the respondent had completed his training with the RCMP, the parties agreed he should accept a posting in the Northwest Territories. They lived first in Fort Simpson and then in Norman Wells. During this time the applicant obtained her NWT teacher certification. In Fort Simpson she worked first part time and then full time as a teacher. Following the move to Norman Wells she worked in a pre-school. She also spent part of this time on maternity leave as the two children were born in 2003 and 2006.
[9] While in the Northwest Territories, the family enjoyed a significant combined income and various northern allowance and travel benefits provided by the RCMP. They took holidays, enjoyed various recreational and outdoor activities. They were able to amass substantial savings. When their time in the north came to an end, they had savings of more than $123,000.00.
[10] In August of 2006, the respondent was transferred to Ottawa. The respondent was still on maternity leave. They used their savings to buy a home which was at the high end of the amount they had assumed they could afford.
[11] When the applicant’s maternity leave came to an end she did not go back to work. She did not take any steps to have her teaching qualifications recognized in Ontario. At that point both children were at home and were not attending school. The applicant devoted her time to child care and household responsibilities while the respondent was working full time as a police officer. It is his evidence that he did his best to be an involved parent and to involve himself in domestic tasks as well.
[12] In Ottawa the family went from a dual income family accruing savings to a single income family going into debt. It was not massive debt but rather than having investments and money in the bank they were living from pay cheque to pay cheque and borrowing on a line of credit. The line of credit was as high as $8,000.00 by February of 2008. It is the respondent’s evidence that they could not pay the bills on his salary even though he worked extra shifts, took on overtime and tried to earn additional money. He was stressed and agitated by his inability to pay down the debt
[13] At some point in 2008, the applicant began to take in other children besides her own in order to generate extra cash flow by operating a home daycare. The balance on the line of credit continued to fluctuate and it was only finally paid off in its entirety by 2012. Even when the children were both in school, the applicant did not go back to teaching. She has continued to run a daycare business.
[14] It was the inability of the family to manage its finances which finally brought the marriage to an end. The respondent came to believe that the applicant had betrayed him. He believes she induced him to buy a house that was too expensive to support on his income alone and then watched him suffer trying to support the debt without making any real effort to return to the work force. Needless to say, the applicant does not accept this version of reality. There is however no doubt that on February 25, 2012 the husband announced he was leaving the marriage and the relationship had broken down.
[15] Although the parties continued to reside under the same roof, the respondent accepted a posting to Haiti in 2013. He was in Haiti from June of 2013 until May of 2015 and the applicant continued to live with the children in the matrimonial home. During that time, the parties continued to operate joint bank accounts and the respondent continued to deposit funds to cover the carrying costs of the home. He also paid the applicant $1,288.00 per month in voluntary child support and continued to do so until April of 2015.
[16] As of May of 2015 they have exercised joint custody and they have been sharing parental responsibilities with the children in alternate weeks. Beginning in May of 2015 the respondent reduced the child support to $785.00 per month.
[17] By agreement the matrimonial home was sold and the proceeds were equally divided. Each of the parties has purchased alternative accommodation suitable for the children.
[18] On April 21, 2016 there was a motion for temporary relief. At that time, Kershman J. imputed $30,000.00 income to the applicant and found the income of the respondent to be $97,854.00. He ordered child support of $951.00 per month effective January 1, 2016 using the setoff method. He ordered interim spousal support of $835.00 per month at the low end of the Spousal Support Advisory Guidelines (“SSAG”) effective April 1, 2016.
Issue #1 – Income & Support
[19] The first issue is the income of the parties for support purposes. Mr. Leduc seeks to have the court impute income to the applicant. He also seeks to have the court use his regular published salary to set his support obligation and to ignore any potential overtime which he cannot be guaranteed of earning.
[20] The law and the guidelines do not permit the court to ignore overtime earnings or bonuses particularly when dealing with historical income. In some cases where income is variable or indeterminate the guidelines permit averaging but those circumstances do not apply here. The respondent’s income for support purposes is the income he actually earned in each of the applicable years.
[21] The actual incomes of the parties for each of the years 2012 – 2016 can be determined from their tax returns and are admitted. The respondent was promoted during the current year. His new base salary is $99,790.00 per year. It is his evidence that in his new position there will be much less opportunity to earn overtime or work extra shifts. As this is an increase in salary but similar to his overtime inflated earnings in previous years, I have tentatively accepted it as evidence of his current income. Of course the actual 2017 income will be known shortly since the year is almost at an end. In addition, the Federal Child Support Guidelines were amended effective November 22, 2017. So for both of those reasons, there will have to be a further calculation completed in order to determine the respondent’s support obligations going forwards.
[22] Subject to this caveat, the income from each year is set out in Schedule A attached to these reasons.
[23] It is the applicant’s evidence that after moving to Ottawa she was primarily involved with the care of the two children. To supplement the family income, she looked after other children and operated a home daycare. Since separation, she has continued to operate a daycare. She also attempted to qualify to teach English as a Second Language and though she completed the training, she has not been able to complete the apprenticeship phase as she has been unable to find a placement.
[24] Recently the applicant has applied for certification as a teacher on the strength of her Manitoba and NWT teacher qualifications. Although she anticipates receiving the necessary certification in short order, she anticipates that as a unilingual anglophone she will have difficulty finding employment as a teacher in Ottawa. In any event she would have to work as a supply teacher before she might ultimately obtain full time employment with the Ottawa Carleton District School Board. To pursue this she would have to give up the limited income she is currently earning from her daycare business.
[25] The net income generated from her daycare business is shown in her tax returns and listed in the table at Schedule A.
[26] Much of the evidence at the trial was directed towards the income of the applicant. The respondent set about systematically attempting to demonstrate that the applicant was significantly underemployed. Firstly, he wanted to show that she is not making any real effort to operate a legitimate daycare business. In support of this allegation, he called various witnesses including two operators of home daycare and the executive director of an organization that provides support and education to home daycare operators. He attempted to demonstrate through these witnesses that there is a significant demand for daycare, what resources are available for promoting home daycare and that it was relatively easy to generate income of approximately $40,000.00 per year after expenses. He also testified that he had sent false e-mails to the applicant purporting to be from parents seeking to place children but had received no response.
[27] In addition to challenging the effort the applicant was devoting to her daycare business, the respondent had also investigated what was required to set up business as a freelance ESL teacher or to work for various agencies that provide that service. He had also attempted to apply to the Ontario College of Teachers on the applicant’s behalf in order to have her qualifications recognized and to show how simple it would have been for her to do that at any time.
[28] Finally, the applicant called evidence to show the amount of time the applicant had been spending volunteering in the schools. This was time he argued that could have been spent on remunerative work or otherwise pursuing self-sufficiency.
[29] I do not condone the respondent’s use of subterfuge or making false applications in the name of the applicant. The evidence he called on this point was overly detailed and disproportionate. Despite this, the evidence does establish that the applicant has at best been making sporadic efforts to maximize her earning potential. This justifies some level of imputed income. Justice Kershman came to a similar conclusion when he made the award for temporary support. That order had been based on $30,000.00 per year of imputed income.
[30] The level of income which should be reasonably earned by a support payor or support recipient is a relevant consideration in deciding questions of spousal support and child support. As the temporary support order demonstrates, however, it is not a magic formula and it may or may not justify significant departure from the support amounts that would otherwise be ordered.
[31] The Divorce Act provides that “in so far as practicable”, an order for spousal support should “promote the economic self-sufficiency of each spouse within a reasonable period of time”[^1]. The failure to take reasonable steps towards self-sufficiency may be thus be a factor in determining the amount of a spousal support award. Reflecting this, the Spousal Support Advisory Guidelines permit the court to impute income to either the payor or recipient spouse if the evidence supports the need to do so.[^2]
[32] The second way in which failure to maximize earning potential may be relevant is under the child support guidelines. S. 19 (1) of the guidelines permits the court to impute income if one of the parents is “intentionally under-employed”.[^3]
[33] It is important to emphasize that the requirement on spouses and parents to take reasonable steps to maximize their incomes is neither absolute nor is it a determination that can be approached with mathematical precision. It is certainly not an invitation to the other spouse or parent to dictate to the former spouse how he or she must arrange their life or their financial affairs.
[34] In relation to spousal support, self-sufficiency is only one of the factors to be considered in determining post-separation support obligations. It is for the court and not the opposing party to determine whether steps taken are reasonable and to decide how much emphasis to put on that particular factor in all of the circumstances. It is also important to stress that while it is a factor in awarding support, there is no law that specifically requires each party to earn a particular amount. Nor is the inclusion of this factor in the legislation an invitation for the court to pass moral judgment on the work habits of separating spouses.
[35] In relation to child support, the court may impute income if the court determines that one of the parents is intentionally under employed. In making that assessment, however, the guidelines require the court to take into account childcare responsibilities and the educational and health needs of the spouse. In other words under-employment may be justified by circumstances and as with spousal support this is only one of the factors to be considered in determining what is just.
[36] I see no reason to depart from the $30,000.00 figure used by Kershman J. for the wife’s income in 2016. The evidence demonstrates she has at least that amount of earning capacity either through the daycare or other employment. It does not follow this would have been reasonable in each of the years after separation. In 2012 and 2013 for example, the applicant was essentially a single parent because the respondent was working in Haiti. Moreover, those were the first two years following the announcement of the separation. I would not impute income for those years.
[37] I think it is reasonable to impute income of $20,000.00 for 2014 which is the first year in which the parties were exercising joint custody. I would increase that to $25,000.00 for 2015. I am prepared to impute income of $35,000.00 for 2017. It does not follow that this amount should be automatically increased in future years. In fact there is a possibility it will go down.
[38] If the applicant is successful in obtaining her teacher’s certification for Ontario and getting onto the supply teacher list, it would make economic sense to pursue that direction because if she can successfully obtain a full time teaching job she will have significant future earning capacity and can accrue a pension. There may however be years in which she is unable to carry on the daycare and has only limited success in obtaining teaching assignments. The evidence is that it can take up to 5 years for a newly employed teacher to obtain full time employment. This will have to be reviewed.
[39] I am not prepared to make a prospective ruling on what income should be imputed to the applicant in future years or when or if spousal support should come to an end. Without diminishing the important contributions each party made to the marriage, the reality is that this was a marriage of over 14 ½ years in which the wife gave birth to two children. Except for the early years of the marriage in which the parties made mutual sacrifices to benefit each other’s careers, for most of the marriage, the family moved regularly because of the husband’s career. Once the parties had children, the wife had the major responsibility for raising the children and the husband had the main responsibility for earning income. The wife and children were and remain economically dependent on the husband.
[40] On these facts, spousal support is justified on both compensatory grounds and on a needs based analysis. I will rule on the current support obligations but future child support and spousal support obligations will have to be reviewed when circumstances change.
Issue # 2 - Retroactivity
[41] This application was commenced in November of 2015 but the parties had been negotiating prior to that date. While the respondent was in Haiti, he had been making regular contributions to the joint account to pay the carrying costs of the matrimonial home and he had also been paying child support. The respondent wishes to have all of the payments made by him during that period treated as support payments and on that basis he asserts he is entitled to retroactive credit. This ignores the obligation of the parties to pay debts and the carrying costs of the house independently of support obligations. I should note that the applicant seeks retroactive support but is prepared to credit on half of the payments made from June of 2013 on.
[42] The contribution to expenses by each party during the time the respondent was in Haiti is complicated. There are arguments and counter arguments as to who should have paid for what and whether there should be retroactive credits and adjustments for support. Essentially the respondent paid child support based on what he believed was the table amount and he deposited funds to cover the mortgage payments, taxes and certain repairs. The applicant paid the regular household bills.
[43] The applicant and children required shelter and regardless of where they were living, a portion of child support payments would be for the purpose of housing and household expenses. Mortgage payments on the jointly owned home were paid by the respondent and some portion of those payments resulted in increased equity to the benefit of both parties. As a further complication, the respondent had a shelter allowance in Haiti which is not reflected in his tax returns. I understand the allowance barely covered the costs he actually had to incur but it would nevertheless be additional income factored into the equation. The respondent did not have to pay for alternative accommodation in Ottawa.
[44] The court has discretion concerning the retroactivity of support payments.[^4] I am not prepared to order retroactive support or support adjustments for 2012 and 2013. Although the respondent had a lengthy overseas posting, the matrimonial home remained jointly owned and remained the family residence. It is neither fair nor just to reconstitute the arrangements that were in place during that period as retroactive support adjustments. As I have indicated, I am not prepared to impute income to the applicant during the time immediately post separation when she was effectively acting as a single parent. As a consequence the financial arrangements the parties had in place during those two years appear to have satisfactorily discharged their respective obligations. There will be no retroactive adjustments for child or spousal support for 2012 and 2013.
[45] I am prepared to order support based on the imputed income of the applicant and the actual taxable income of the respondent for each of the years 2014 - 2017. The amounts are reflected in Schedule A. Child support is assessed using the respondent’s actual income for each year and the table amount for two children. Spousal support has been assessed using the mid-point of the SSAG.
[46] The joint custodial regime began May 1, 2015. I have taken that into account. The parties have agreed to use the setoff method rather than attempting a more complicated analysis and this appears appropriate.[^5]
[47] Spousal support is also affected by joint custody. The SSAG takes joint or split custody and reduced child support into account. As a consequence, while child support goes down once shared custody begins, under the guidelines, spousal support rises. This means child support would be $1,375.00 for January – April and then $1,002 for May – December, 2015. Spousal support would rise from $467 for January – April and then rise to $1,135 for May – December, 2015. In 2016 and 2017 the support regime is based on equal parenting.
[48] Imputing income for each of these years would also change the percentage of contribution to any extraordinary expenses. I have set out the percentage for which the respondent should have been responsible in each year. I am not inviting the parties to claim new s. 7 expenses for past years. Had they wished to do so that ought to have been claimed at the time of the trial. To the extent that proportionate s. 7 expenses were paid, however, they may be adjusted as part of the calculation and recalculation of retroactive support.
[49] The child support and spousal support obligations for each of the affected years can be calculated using the appropriate Divorce Mate calculations. They are set out in the chart at Schedule A. Although Justice Kershman used the low end of the SSAG for purposes of the temporary order, I do not consider that to be fair. It is not reasonable to impute income to the applicant and also to use the low end of the SSAG. I have used the mid-range generated by the imputed income.
[50] Because the order granted by Justice Kershman was a temporary order, it is superseded by these calculations. All amounts paid or credited under the temporary order will be credits against the retroactive support calculated in accordance with these reasons. I have not been given sufficient information to perform the calculation myself and I do not know what credits are shown by FRO or whether they are admitted as accurate. The applicant also agrees that ½ of the payments made by the respondent towards the matrimonial home up to April of 2015 should be credits towards spousal support. As I have not awarded retroactive support for 2013, only those amounts paid in 2014 and 2015 should attract credit.
[51] The parties should be able to calculate any arrears or overpayment based on the numbers in the chart but if they cannot do so or if there is some uncertainty due to amounts collected by FRO, I will hear argument regarding the calculations.
[52] As the amount of imputed income is in some cases different from the scenarios used in the calculations filed at trial, these support numbers do not match the numbers in the exhibits. I invite the parties to run their own Divorce Mate or MySupportCalculator print outs using the appropriate values and incomes and if they produce numbers different from those in the chart I will hear those submissions as well.
[53] In addition, given that it is mid-November, the respondent’s actual income for 2017 should be verified using his year end pay-stub and T4. It will also be necessary to consider any changes to child support generated by the updated guidelines that come into force on November 22, 2017.
[54] Finally, the numbers generated by the tables assume that all spousal support for 2014 – 2017 will be deductible and taxable and if that is not the case, the spousal support amounts for the years that will not be taxable or deductible will have to be adjusted.
[55] All of this and the fact that the respondent is representing himself makes it likely that a further appearance will be required to finalize the support order and to quantify the arrears or overpayment. The parties are to schedule a date to speak to these matters.
Issue # 3 - Equalization
[56] The parties have agreed through admissions that the respondent owes the applicant an equalization payment of $114,721.91. There will therefore be a finding that the amount of $114,721.94 is owing by the respondent to the applicant for equalization of net family property.
[57] Pursuant to ss. 127 – 130 of the Courts of Justice Act [^6] the applicant would also be entitled to pre-judgment interest on the equalization if I intended to simply issue a judgment. That would ordinarily run from the date of separation which is the valuation date until the date of the judgment at 1.3% per annum. As I intend to order the equalization payment be satisfied by way of pension division, I understand the pension payment will include interest from the date of valuation to the date of payment and it may not be necessary to calculate pre-judgment interest. I will hear further submissions on this point if necessary.
[58] Both parties propose that the equalization be satisfied by an order for division of the respondent’s pension. This is fair for two reasons. Firstly, the equalization is largely the result of the pension value and secondly, this is the only way in which the judgment can be satisfied. Pension plans cannot be seized under a judgment and the only other exigible asset owned by the respondent is his home.
[59] The applicant is satisfied to receive the equalization by way of pension division but it is her position the amount to be paid out of the plan would have to be grossed up for taxes since she will pay tax on the funds when she ultimately receives them.
[60] The respondent disagrees with the applicant’s demand to gross up the amount and he views it as an unjustifiable attempt to take more than she is entitled to. He is wrong in this. The applicant is entitled to the equalization net of tax. Moreover pension values are calculated having regard to the tax burden on the pension plan owner. In effect he is paying equalization based on an after tax value of his pension.
[61] The law and fairness dictate that the equalized amount be grossed up to reflect the tax burden on the applicant when she ultimately receives the equalization amount as income. Were it otherwise, it would be necessary to use a higher pension value to calculate equalization.
[62] The respondent is correct that the actual tax to be paid by the applicant when she receives pension income is unknown. It will depend on her personal income tax situation at the time. The proposed rate of 20% seems both fair and reasonable. Assuming the applicant has any other income when she ultimately receives the equalization by way of payments out of a pension vehicle, it is likely her personal tax rate will be higher than 20%. The amount proposed by the applicant is conservative and more than fair to the respondent.
[63] S. 8 (4) of the Pension Benefits Division Act[^7] permits a court to order a lump sum paid out of the pension plan that is up to 50% of the value of the plan accrued during the marriage (the “maximum transferrable amount” or “MTA”). In this case the equalization amount even if grossed up for tax will be less than the MTA of $147,469.89. This means that the entire equalization obligation may be satisfied by pension division.
[64] I will order the equalization be satisfied by payment of a lump sum out of the respondent’s pension equivalent to $114,721.91 plus 20%. This is $137,666.29. An order will issue for payment of this amount together with interest from February 25, 2012. In the event that the plan administrator does not pay interest or if the interest paid by the plan is significantly different from the pre-judgment interest rate, this issue may also be addressed when the parties re-attend.
[65] In accordance with the legislation, the payment must go into a locked in pension vehicle. The applicant may elect to have the amount transferred to a registered pension plan if that plan permits a transfer, to a locked in RRSP or to a prescribed form of annuity. The applicant should review the options available to her and acceptable to the pension plan administrator or administrators so that the formal order may be worded appropriately.
Issue # 4 - The Van
[66] There is one other issue and that is the transfer of the van. Justice Kershman dealt with this but unfortunately the parties did not comply with the order. What was supposed to happen was that the respondent was to pay the applicant the amount of $14,115.00. She was then to transfer the van to the respondent and he was to have sold it to satisfy support arrears. The respondent has never paid the $14,115.00 and the van has never been transferred. The applicant has continued to have the use of the van and to pay for maintenance and upkeep.
[67] I admit to some confusion regarding the current status of the van. It is shown on the financial statements as belonging to the respondent. The respondent paid off the loan and was reimbursed for the loan by the applicant out of the proceeds of sale of the home. Justice Kershman’s order required the respondent to reimburse the applicant for the loan that she had reimbursed to him and to transfer the van to him. I understand however from the relief sought by the applicant that the van is currently in the respondent’s name.
[68] I see no reason to go through the transfer and sale mechanism contained in the temporary order if the applicant now wishes to keep the vehicle particularly since she has not been paid the $14,115.00 to which she was entitled. The applicant seeks an order transferring the van to her in lieu of the payment but if there is any value in the vehicle beyond the $11,400.00 the respondent should have credit for that amount. Under the temporary order, he was to sell the vehicle and apply the proceeds towards support arrears.
[69] Based on the value of $21,500.00 ascribed to the van by the parties in their 2015 financial statements, it is reasonable to assume that the remaining value in the vehicle does not exceed the outstanding costs obligation owed by the respondent plus the $14,115.00. The respondent is to transfer the van to the applicant and if he does so he will be relieved of the obligation to pay $11,115.00 as well as the outstanding costs award of $4,600.00.
[70] If the van cannot be transferred, a monetary judgment will issue for these amounts.
Divorce
[71] The applicant seeks a divorce. This is not opposed but there is some paperwork and other formalities that were not addressed at the trial. There will be an order severing the divorce from the corollary relief and permitting the divorce to proceed in writing on an unopposed basis.
Conclusion and Judgment
[72] In conclusion, I find that the incomes of the parties for support purposes and the child support and spousal support obligations of the respondent for each of the years in question are those set out in Schedule A subject to possible adjustment as set out below.
[73] Prior to finalizing these amounts, the respondent is to provide the information necessary to calculate his actual income for 2017;the parties are to verify the support calculations for each year based on these findings and the parties are to consider the impact of the updated guidelines.
[74] In the event that retroactive spousal support for any of the years in question will not be taxable and deductible or if the parties agree they do not wish to recalculate their taxes for those years, the spousal support for those years will be adjusted accordingly.
[75] The respondent owes the applicant the sum of $114,721.91 for equalization together with pre-judgment interest in an amount to be fixed by the court if necessary.
[76] The equalization payment will be fully satisfied by payment from the respondent’s pension plan of an amount of $137,666.29 together with interest calculated from February 25th, 2017. An order will issue pursuant to the Pension Benefits Division Act. Upon the transfer taking place, the respondent’s equalization obligation will be fully satisfied.
[77] All amounts paid by the respondent as child support since January of 2014 shall be credits against the child support and all amounts paid by the respondent as spousal support since the same date shall be credits against the spousal support. The respondent shall also have credit for ½ of the payments made in respect of the matrimonial home from January of 2014 to April of 2015. The amount resulting from that calculation when applied against the support amounts awarded under this judgment shall constitute arrears or overpayment as the case may be. In the event the parties are unable to agree on the calculations, I may be spoken to.
[78] There will be no retroactive adjustment for child support or spousal support for 2012 and 2013.
[79] The respondent owes the applicant the sum of $14,115.00 under the order of Justice Kershman and also owes her $4,600.00 in costs. These obligations will be extinguished if he transfers the 2011 Toyota Sienna into the name of the applicant by spousal transfer within 30 days. Failing such transfer, these amounts will remain enforceable.
[80] There will be an order severing the divorce from the corollary relief and permitting the divorce to proceed on an uncontested basis.
Costs
[81] I will hear submissions on costs. Mr. Wonham and Mr. Leduc should confer regarding all or any of the issues arising from this decision including the form of the judgment and the issue of costs. They are to arrange a date for an appearance to finalize these matters within the next 60 days.
Mr. Justice Calum MacLeod
Date: November 23, 2017
Schedule A – Findings Regarding Income and Support Payments
| Year | Applicant’s Income – line 150 (less spousal support) | Applicant’s Imputed Income for support purposes | Respondent’s Income – line 150 or equivalent | Monthly Child support | Monthly Spousal Support | Respondent’s share of s. 7 expenses | Retroactive Adjustment Required |
|---|---|---|---|---|---|---|---|
| 2012 | $6,024.00 | N/A | $98,346.00 | N/A | N/A | N/A | NO |
| 2013 | $5,515.00 | N/A | $114,795.00 | N/A | N/A | N/A | NO |
| 2014 | $5,669.00 | $20,000.00 | $96,579.00 | $1374 | $638 | 83% | YES |
| 2015 | $9,985.00 | $25,000.00 | $96,691.00 | $1375 then $1,002 | $467 then $1,135 | 79% | YES |
| 2016 | $11,723.00 | $30,000.00 | $99,011.00 | $966 | $1,025 | 77% | YES |
| 2017 | $35,000.00 | $35,000.00 | $99,790.00* | $906* | $917* | 74% | YES |
Notes:
a) In the event that spousal support for 2014 and 2015 cannot be taxable and deductible then the spousal support amount for those years must be adjusted.
b) The respondent’s income for 2017 is to be verified and this amount adjusted if necessary once the 2017 year end paystub and T4 is available.
c) Child support amounts for 2017 may have changed beginning with the December 1 payment as new Federal Child Support Guidelines came into effect on November 22nd, 2017.
CITATION: Leduc v. Leduc, 2017 ONSC 6987
COURT FILE NO.: FC-15-2553
DATE: 2017/11/23
ONTARIO
SUPERIOR COURT OF JUSTICE-FAMILY COURT
RE: Nicole Leduc, Applicant
AND
Jean-François Leduc, Respondent
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Michael Wonham, for the Applicant
Jean-François Leduc, Respondent, acting in person
reasons for judgment
Mr. Justice Calum MacLeod
Released: November 23, 2017
[^1]: S. 15.2 (6) (d), Divorce Act, RSC 1985, c. 3 (2nd Supp) as amended
[^2]: S. 13.2, SSAG
[^3]: Federal Child Support Guidelines, SOR 97-195
[^4]: See DBS v. SRG 2006 SCC 37
[^5]: Contino v. Leonelli-Contino 2005 SCC 63 – the setoff method is an appropriate starting point subject to the discretion of the court in applying the s. 9 factors. Neither party has requested a Contino analysis.
[^6]: RSO 1990, c. C.43 as amended