COURT FILE NO.: FC-03-1799-02

DATE: 2018/06/04

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Lorraine Lavictoire

AND

Dennis Lavictoire

BEFORE: Justice Mark Shelston

COUNSEL: Self-represented

Self-represented

HEARD: May 24, 2018 (at Ottawa)

Endorsement

Litigation history

[1] The respondent commenced the Motion to Change on November 14, 2017 seeking various claims for relief, including the termination of spousal support. The applicant filed a Response to the Motion to Change.

[2] On March 14, 2018, the respondent served a Notice of Motion requesting the following orders:

(a) an order that spousal support payable to the applicant be terminated effective May 1, 2017;

(b) an order that any outstanding spousal support arrears payable to the applicant be rescinded as of the date of this order;

(c) an order that any funds being held by the Family Responsibility Office on account of spousal support arrears be released to the respondent; and

(d) an order for the respondent’s costs, on a full recovery basis.

Position of the parties

[3] The respondent’s position is that the spousal support should end as of May 1, 2017, that there are no arrears of support and that any funds paid after May 1, 2017 should be repaid to the respondent.

[4] The applicant’s position is that the spousal support should end as of April 1, 2018 and that the arrears of support should be fixed in the amount of $8,239.41.

Facts

[5] The respondent was born on March 28, 1957. The applicant was born on July 26, 1960. The parties married on June 20, 1987. At the time of the marriage, the applicant was 26 years of age and the respondent was 30 years of age. At the date of separation, on May 13, 2003, the applicant was 42 years of age and the respondent was 46 years of age. There are two children of the marriage who are now adults.

[6] Following two and a half years of litigation, the parties settled on the terms set out in the January 11, 2006 order of Justice McKinnon who ordered that the respondent would have custody of the two children and that the applicant would have generous access. On the issue of support, the court ordered:

(a) the respondent-father shall pay spousal support in the amount of $575 per month, effective February 1, 2006, until further order of the court, agreement between the parties or material change in circumstances;

(b) any variation income for either the applicant-mother or the respondent-father equivalent to $1,000 annually, as an increase or as a decrease, shall constitute a material change of circumstances for the purposes of calculating the spousal support payable by the respondent-father and the child support payable by the applicant-mother. The change of income must be immediately disclosed to the other party;

(c) there shall be no child support payable by the applicant-mother;

(d) there shall be no arrears in child support and in spousal support accrued prior to the date of this order, based on the current circumstances;

(e) the parties shall exchange tax returns and notices of assessment annually, and by no later than July 1 of each year; and

(f) the parties shall exchange any pay stubs and draw statements on an ongoing basis.

[7] On May 22, 2007, Justice Paul Cosgrove, with the consent of the parties, dealt with various issues, including the disposition of the proceeds of sale of the matrimonial home and made the following order:

(a) from his share of the proceeds, the respondent shall pay to the applicant the amount of $9,200 on account of arrears owing for spousal support from February 1, 2006 to May 2007 at the rate of $575 per month;

(b) paragraphs 3 and 4 of the order dated January 11, 2006 is varied to provide that:

i) the respondent shall pay spousal support to the applicant in the amount of $1,000 per month effective June 1, 2007 onwards. The respondent shall provide the applicant with eleven post-dated cheques in the amount of $1,000 each for spousal support commencing June 1, 2007; and

ii) any variation income for either the applicant or the respondent equivalent of $5,000 annually, as an increase or as a decrease, shall constitute a material change of circumstances for the purpose of calculating spousal support payable to the respondent and in the child support payable by the applicant. The change of income must be disclosed to the other party; and

(c) the order dated January 11, 2006 by McKinnon, J. is confirmed in all other respects.

[8] Neither party provided any evidence as to what their respective incomes were in 2006 and 2007. The respondent had sole care of the children from the date of separation. The children remained in his care until leaving home as adults. The respondent currently resides with his daughter in her one-bedroom apartment.

[9] The children are estranged from the applicant.

[10] There is no income information for the respondent until the respondent commenced these proceedings. The respondent has disclosed that he has earned the following income:

(a) 2015, $59,291;

(b) 2016, $63,677; and

(c) 2017, $35,013.41.

[11] The applicant’s income tax returns disclose the following income:

(a) 2014, $28,619.72 of which $12,000 was spousal support;

(b) 2015, $20,965.83 of which $11,282.13 was spousal support;

(c) 2016, $31,358.57 of which $11,169.87 was spousal support; and

(d) 2017, $31,300 of employment income.

[12] There is no evidence as to whether or not the parties exchanged income tax returns or revisited the issue of a variation of child or spousal support. The respondent admits that his income, at some point, was as high as $80,000 per year based on an income derived from commission income as well as a taxable vehicle benefit.

[13] By 2010, the respondent began to accrue arrears of spousal support during slow periods when his gross income did not cover the $1,000 payment.

[14] In 2015, the respondent and the two adult children were evicted from his residence for the nonpayment of rent resulting in a default judgment of $9,244.19. Enforcement procedures are in place by the creditor collecting that judgment.

[15] The parties’ son, Brandon, is now living on his own with his wife. The parties’ daughter, Meagan, has her own apartment where the respondent resides and contributes to her expenses because he cannot afford to live on his own. He is currently sleeping on her couch.

[16] In early 2017, the respondent’s employer began to decrease his duties and hours resulting in the respondent deciding to terminate his relationship with his employer. The respondent found new employment in May 2017 based on earning 100% commission and a taxable vehicle benefit with Myers Nissan.

[17] In early May 2017, the respondent broke both of his wrists in a freak accident at his son’s home. The respondent applied for and received employment insurance benefits. As a result of the reduced income, more arrears of spousal support have accrued since that time.

[18] The respondent has entered into a voluntary arrears payment schedule with the Family Responsibility Office.

[19] In 2017, the respondent earned $11,560 from one employer, $15,308 from Myers Nissan and employment insurance benefits of $8,145. In 2017, the applicant earned $31,300.

[20] When both children were born, it was agreed that the applicant would be a stay-at-home mom. During this period of time she provided daycare services for additional income for the family. She remained at home with the children until they both would be in school full-time. She was then employed on a part-time basis in order to put the children on the school bus and to be there when the children returned at the end of the day. She worked in a real estate office as a receptionist on evenings and weekends and at a fireplace company prior to the separation.

[21] The applicant was the manager of an M&M Meat Shop franchise that she quit when the children were 23 and 21 years of age and in college. The applicant provided no financial assistance to the children when they were in college. Currently, the applicant is employed with a property management company and earns $31,300.

[22] All of my findings have been based on the pleadings filed by the parties, the financial statements filed by the parties, the respondent’s two affidavits, dated March 14, 2018 and April 27, 2018, and the applicant’s affidavit sworn April 20, 2018. I also note that the respondent’s affidavit dated April 27, 2018 was filed in response to the applicant’s affidavit dated April 20, 2018. Many of the allegations made by the applicant in her affidavit are not refuted by the respondent.

Analysis

Variation of the quantum of spousal support

[23] At the time of the marriage, the applicant was 26 years of age and was 42 years of age at the date of separation. The parties lived together just under 16 years. The Spousal Support Advisory Guidelines (“SSAG”) were not in effect at the time that the parties entered into their consent judgment. However, this is a Motion to Change and I find that I can consider the SSAG on both quantum and duration of spousal support.

[24] I find that up to December 31, 2016, the respondent was working full-time and in 2016 he earned $63,677. By December 31, 2016, the respondent’s spousal support arrears had accrued to the sum of $2,375.43. I see no reason why those arrears should be rescinded as the respondent was gainfully employed and earned $59,291 in 2015 and $63,677 in 2016. Based on the Family Responsibility Office schedule of payments filed by the respondent, the arrears started to accrue in 2010 and by the end of December 2016 had reached the figure of $2,375.43.

[25] I find that the impetus for the Motion to Change was the significant reduction in the respondent’s income. I find that there has been a material change in the parties’ circumstances based on the applicant earning $31,300 and the respondent earning $35,013.41 in 2017. According to the DivorceMate SSAG calculations, the “without child support” formula indicates that the range of support is as follow:

(a) Low $70 per month;

(b) Mid $81 per month; and

(c) High $93 per month.

[26] Without having any information as to the nature of the entitlement to spousal support, I am left with little information in order to accurately determine the appropriate range. While I accept that the midrange is not the automatic default position, I am selecting the midrange because I have insufficient information to determine if the low or the high is appropriate in the circumstances.

Termination of spousal support

[27] According to the DivorceMate SSAG calculation filed by the respondent at Tab 9(L) of Volume 1 of the Continuing Record, the duration of spousal support is between 7.5 and 15 years based on the cohabitation of 15 years and the recipient’s age at separation of 42.

[28] The parties separated on May 13, 2003. I have taken into consideration that the children resided with the respondent after separation, that there has been no variation of the spousal support since the order of Justice Cosgrove and that there has been no exchange of financial information between the parties. I have no information as to the parties’ incomes until 2014, in the case of the applicant, and until 2015, in the case of the respondent.

[29] The information presented to me provides evidence that the applicant was entitled to spousal support on a compensatory basis. I have no information as to the parties’ income in 2006 or 2007, their financial position or their employment. I have also considered that the respondent did not commence this proceeding until November 2017. Considering all the circumstances, I will terminate spousal support as of May 1, 2018, that is, 15 years after separation, which is the longest period of time in accordance with the SSAG.

Disposition

[30] I order that the respondent pay to the applicant the sum of $81 per month as spousal support commencing January 1, 2017 and terminating on May 1, 2018.

[31] I order that the arrears of spousal support accruing as of December 31, 2016 be fixed in the amount of $2,375.43.

[32] I order that any sums received after December 31, 2016 shall be credited towards the arrears owing on December 31, 2016 and to any of the arrears accrued on the monthly spousal support of $81 per month for the period of January 1, 2017 to May 1, 2018.

[33] I order that any surplus after the payment of all arrears of spousal support shall be paid to the respondent.

[34] I order that any shortfall owing towards the arrears of spousal support shall be paid by the respondent in monthly payments of $200 per month until paid in full.

[35] The respondent has provided me with a Bill of Costs. In the circumstances, based on the divided success between the parties, I order both parties to pay their own costs.

Mr. Justice Mark Shelston

Date: June 4, 2018

COURT FILE NO.: FC-03-1799-02

DATE: 2018/06/04

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Lorraine Lavictoire

AND

Dennis Lavictoire

BEFORE: Justice Mark Shelston

COUNSEL: Self-represented

Self-represented

ENDORSEMENT

SHELSTON J.

Released: June 4, 2018