Court File and Parties

COURT FILE NO.: 1669/17 DATE: 2018 09 19

Superior Court of Justice - Ontario

RE: OLEG PETRENKO v. JULIA PETRENKO

BEFORE: COROZA J.

COUNSEL: Oleg Petrenko, Self-Represented Julia Petrenko, Self-Represented

HEARD: April 3 and 5, 2018

Reasons for Ruling

Overview

[1] Oleg Petrenko requests that this Court change a spousal support order of Gordon J., dated January 16, 2014.

[2] Gordon J.'s reasons are reported at 2014 ONSC 309. In that order, Gordon J. held that Oleg should pay Julia Petrenko $1200.00 in spousal support per month.

[3] Gordon J. provided two mechanisms for a party to review his order. First, he ordered that the review could be done by an application for variation. Indeed, the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) permits variations of final awards for spousal support, but only where it can be shown that there is a material change in circumstances. I will refer to this mechanism as a “variation”. Second, he also ordered that a review de novo could take place after two years without having to show a material change in circumstances. I will refer to this mechanism as a “review”.

[4] Although the jurisprudence cautions against permitting review orders, in this case, Gordon J. permitted a review to occur because of the uncertainty of Julia’s prospects of employment in 2012. As is apparent from reading his reasons and final order, either mechanism permits Oleg to come back to court to request that support be reduced or terminated if Julia has become self-sufficient.

[5] Although Oleg did not specifically address whether he was bringing a variation or review, I am prepared to consider Oleg’s arguments as if he has brought both types of applications.

[6] Oleg requests that spousal support be terminated or, alternatively, reduced.

[7] Julia submits that I should dismiss Oleg's claim. Julia submits that the amount of spousal support that she is receiving is necessary considering Oleg's income has increased since 2012. She submits that she has made efforts to try and become self-sufficient but that it is difficult. She argues that spousal support should remain at the amount ordered by Gordon J.

[8] Julia also requests that I order that all spousal support payments should only go through the Family Responsibility Office (FRO), that Oleg not give a gun as a gift to their son, Nickey, and that Oleg reimburse her $1,850. This $1,850 amount reflects the amount of premiums paid for life insurance that Julia has been maintaining under Oleg's plan.

[9] For the following reasons, I dismiss Oleg’s applications. I also dismiss Julia’s requests relating to the gun and insurance premiums.

The Record in this Trial

[10] Coats J. held three trial management conferences on this matter. To their credit, the parties made significant progress with Coats J. on March 13, March 23, and April 3, 2018 in relation to other issues involving their son, Nickey. Those issues were settled before trial.

[11] Regrettably, the parties could not agree on the issue of spousal support. Coats J. noted in her endorsement of April 3, 2018, that this is a single issue trial.

[12] I heard from both Oleg and Julia. Each party testified. Each cross-examined the other. The oral evidence in this matter was very difficult to sort through. However, each party filed an outline of evidence, which they adopted as their testimony while in the witness box and on which they were cross-examined. I have found their outlines helpful.

[13] There are six exhibits. It should be noted that Julia brought to court supporting documentation, as ordered by Fitzpatrick J. on March 17, 2018 at the case conference. Julia wished to rely on these documents when she gave evidence. I provisionally accepted this documentation by marking it as Exhibit A. Having reviewed it, along with the endorsements of Fitzpatrick J. and Coats J., I have decided that it should be a numbered exhibit. Therefore, Exhibit A is now Exhibit 6. I have made this documentation a numbered exhibit for the following reasons.

[14] First, Julia adopted the contents of the exhibit when she testified.

[15] Second, Oleg had a copy of this material and did not ask any questions about the documentation.

[16] Third, my colleagues ordered Julia to produce this documentation for trial. Clearly they did this because it was relevant and necessary evidence for me to have in order to assess their arguments.

Background to Litigation

[17] The background to this litigation is thoroughly reviewed by Gordon J. in Petrenko v. Petrenko, 2014 ONSC 309, [2014] W.D.F.L. 1478. I will review some of this background to provide context for my analysis.

[18] The parties were married in 1982. They immigrated to Canada in 2000 from Latvia.

[19] They have three children: Helen, born April 15, 1983; Pavel, born September 21, 1992; and Nickey, born October 4, 2000. Helen and Pavel are no longer dependants. Nickey resides with his mother, Julia.

[20] They separated in 2010 and a divorce was granted on June 24, 2012.

Gordon J.'s Order of 2014

[21] The parties entered into a separation agreement on December 12, 2008.

[22] The focus of the dispute before Gordon J. in 2014 was spousal support and extraordinary child expenses. In his reasons for judgment, Gordon J. ordered Oleg to pay spousal support to Julia in the monthly amount of $1,200, commencing February 1, 2014, based upon his 2012 reported income of $67,136 and her 2013 reported employment income of $11,400.

[23] Again, Gordon J.'s order permitted either party to review the spousal support order upon showing a material change in circumstances or after June 20, 2016.

The Background of the Litigants

(i) Oleg Petrenko

[24] Oleg is now 55 years of age. He worked a variety of jobs after arriving in Canada. In or about 2003, Oleg obtained a position as a special constable with the Halton Regional Police Service.

[25] It appears that Oleg has done well since 2014. He continues to be employed with the Halton Police. It is unclear whether he is actually a police officer (Gordon J. noted that he had been accepted into Police College in 2014). In any event, Oleg filed his CRA notice of assessment for 2017. I find that his 2017 income (as reflected by Line 150 in his CRA assessment for 2017) is $83,515.

(ii) Julia Petrenko

[26] Julia is now 54 years of age. Gordon J. noted in 2014 that she was qualified to practice as a medical doctor in Latvia. By 2014, she had completed a number of required courses in Canada in pursuit of the same designation. Regrettably, in 2014, Julia was unable to achieve this goal as the regulations in place prohibit such designation for doctors who have been out of practice more than three years.

[27] By 2014, Julia had taken courses in related fields, specifically medical research. She then qualified for several part time contract positions, such as at Sick Kids Hospital and Mount Sinai Hospital. However, by 2014, Gordon J. noted that Julia had very little employment income. Julia's employment income in 2012 was $5,069. By 2014, she had not been successful in obtaining further contract positions in the medical field and she was cleaning houses to earn income. She was also receiving the child tax credit for Nickey and an HST rebate along with child and spousal support from Oleg.

[28] By 2014, Julia had started a two year graduate program to attain a higher designation in the field of research but had to discontinue it for financial reasons. She has not gone back to school to finish her program.

[29] For this trial, Julia has filed her updated resume (Exhibit 1). She adopted this as an accurate reflection of her credentials and education.

[30] Although she has historically worked as a clinical research assistant, since 2014 she has worked as a business manager and a medical office assistant. She has also become literate with the computer and typing. This has allowed her to take an office assistant position with a medical clinic. That position is a part time job and she started working for the clinic in 2017.

[31] Julia filed her CRA documents. As of 2017, I find that her income (as reflected by Line 101 in her CRA assessment for 2017) was $13,904. I have not taken her 150 income as reflected in this 2017 CRA assessment into account because that amount includes support payments received from Oleg.

The Position of the Parties

(i) Oleg's Position

[32] Oleg claims that circumstances have changed in 2018 and that spousal support should be eliminated or drastically reduced.

[33] He advances three arguments.

[34] First, Julia's income has increased. He submits that Julia's income increased in 2014 from $16,777 to $18,878 in 2015.

[35] Second, Julia is trained as a doctor. She holds a medical degree. Oleg argues that Julia is not doing enough to become self-sufficient and this is a material change in circumstances that should lead to either termination or reduction of spousal support. Oleg submits that Gordon J. expected that Julia would have updated her Canadian credentials by June 30, 2016. Oleg claims that, given Julia's credentials, there is no reasonable excuse for her not to be earning a significant income.

[36] Third, Oleg points out that Julia has criminal convictions from 2009 for harassment and this could affect her ability to earn income in the medical field in Toronto. He argues that she should apply for jobs outside of the medical field.

(ii) Julia's Position

[37] First, Julia does not dispute that the CRA document reflects a higher income. However, she submits that her cost of living has also risen. Julia points out that she is responsible for raising Nickey and for paying rent. She argues that her rent has increased.

[38] Second, Julia claims that she has been unable to pursue further education or re-training largely because she must care for Nickey and she lacks the finances to pay for school. She has also documented her efforts to find work in the medical field and has filed a document brief that is now marked as Exhibit 6 in these proceedings. The brief contains many documents outlining her online searches for work by email or through the web.

[39] Finally, Julia argues that her criminal convictions from 2009 have nothing to do with this matter. They pre-date Gordon J.'s order and she submits that Oleg is raising this issue for no reason other than to cast her in an unfavourable light.

Analysis

(i) Julia’s Claims

[40] At the outset, I dismiss Julia's claims in relation to the gun and reimbursement for her payments regarding life insurance. Those matters are not properly before me and have been raised without proper notice. The parties did not really address these issues in their evidence or in their submissions. Later on in my reasons, I will return to Julia's request that Oleg make payment for spousal support directly to FRO.

(ii) Oleg’s Applications

[41] I will now turn to Oleg’s Applications.

[42] Before turning to Oleg's arguments, it is helpful to start with the order he seeks to vary. In 2014, Gordon J. said the following:

[23] This was a long term marriage of almost twenty-nine years. Child care obligations during the relationship are an important consideration. The focus, in my view, is with the ability of Ms. Petrenko to become self-supporting. In this regard, there can be no dispute she has impressive qualifications. Are there employment opportunities?

[24] Ms. Petrenko testified as to obtaining part time contract positions in the past with modest remuneration. She referred to a binder of job applications submitted to prospective employers in the public and private sector, said to be in excess of one hundred. Ms. Petrenko was unsuccessful in these applications, saying her qualifications were insufficient or that she lacked the required experience. Ms. Petrenko specifically addressed the job postings presented in Mr. Petrenko's material.

[25] Ms. Petrenko is of the view her ability to obtain employment in her field requires completion of a two year post graduate program.

[26] This evidence was essentially not disputed by Mr. Petrenko. All he could say is that he is of the belief Ms. Petrenko should be able to obtain full time employment. No independent evidence was presented by either party on this issue.

[27] I cannot speculate as to whether there is other evidence. The evidence of Ms. Petrenko is reasonable. The current economic limitations in the public and private sectors are well known. I am not surprised that there are fewer research opportunities than in the past or that there is greater competition for available positions. Many university graduates are unable to obtain employment in their field at the present time.

[28] It is unknown as to how successful Ms. Petrenko will be in her future endeavours. I can only decide the issue on the present circumstances. I accept the evidence regarding her present income as being reasonable.

[29] The expenses set out in Mr. Petrenko's financial statement, for the most part, are also reasonable. The only real concern is the carrying cost of numerous debts, incurred by both parties during cohabitation. Mr. Petrenko made an assignment in bankruptcy. He is now discharged. Ms. Petrenko was left with the family debt. She ought be pursuing bankruptcy. Her explanation against an assignment is not persuasive.

[30] Nevertheless, there is an obvious need for spousal support. The existing payment of $900, along with child support, employment income and other sources barely meets current family expenses. Mr. Petrenko has the present ability to pay, revealing a modest surplus in his financial statement even with the current support payments. Spousal support must increase.

[31] In the circumstances, I conclude spousal support must continue. The appropriate monthly amount is $1,200 having regard to the financial status of the parties and the spousal support advisory guidelines. I decline to direct the support obligation to be time limited, that is by setting a termination date. Spousal support is reviewable in the event of a material change in circumstances and, as well, may be reviewed on or after June 30, 2016 so as to allow Ms. Petrenko sufficient time to complete the education program. Ms. Petrenko is to provide the usual annual income disclosure and to advise Mr. Petrenko as to any change in employment and any enrollment in education programs.

[43] It seems to me that Gordon J. noted the following important points.

[44] First, this was a long marriage.

[45] Second, although the focus was to try and ensure that Julia become self-supporting, there was no independent evidence that Julia could obtain full time employment.

[46] Third, the current economic limitations in the public and private sectors are well known.

[47] Fourth, there was an obvious need for spousal support.

[48] With this in mind, as I stated earlier, there are two possibilities to change the order: (a) a material change in circumstances by way of variation, or (b) a review of Julia’s present circumstances.

[49] In my view, Oleg has not demonstrated that there is a material change in circumstances, nor is there any basis on this record for this court to reduce or terminate spousal support.

(iii) Oleg's First Argument: Julia's Income has Increased

[50] Oleg submits that Julia's income has increased since the order was made in 2014 to about $18,878 in 2015. He asserts this is a material change in circumstances.

[51] I agree that Julia's income has increased from 2012 (the amount that Gordon J. used for his calculations). However, her most recent document from CRA shows that she is only earning employment income of $13,904. In other words, Julia is still not earning a significant income. Indeed, her evidence is that all of this barely covers family expenses including rent for a place to live for her and Nickey.

[52] In my view, the increase in her income is not significant or material enough to warrant terminating or altering spousal support. I find that it is not a material change in circumstances. In making this finding, I cannot ignore that Julia is responsible for Nickey's day-to-day needs. She has to pay rent and the cost of living and rent has likely gone up since 2014. I also consider that Oleg's income appears to have also increased substantially since Gordon J. made his order, and Oleg still has the present ability to pay.

[53] In short, I do not find believe that the increase in Julia’s employment income means that she has reached the goal of being self-sufficient. I also note that the position that she currently occupies as a medical assistant is only part-time.

[54] I am not persuaded by Oleg’s argument that I should vary Gordon J.'s order on the basis of increased income.

(iv) Oleg's Second Argument: There is No Reasonable Excuse for Julia Not to be Earning a Significant Income

[55] Oleg's position is identical to the one he advanced before Gordon J. in 2014. He argued then as he does now that Julia is well-qualified to obtain employment at an equal or higher income than what he earns. He goes on to assert that she has had more than sufficient time to complete an education program and earn substantially more.

[56] From Oleg’s perspective, Julia can do more to advance her career. Oleg argues that Julia is a highly-educated person and holds advanced degrees from several universities.

[57] Julia does not deny that she has this education. However, her position is that notwithstanding her education, the reality is that her age is proving to be a barrier to finding work in the medical field. Julia also points out that she is limited in terms of what work she can take. For example, she requires any position to be in close proximity to her home in Mississauga and to Nickey who lives at home.

[58] With great respect to Oleg, I am not persuaded by his position that there is no reasonable excuse for Julia not earning a significant income. I believe there are reasonable excuses. I say this for the following reasons.

[59] First, the evidence reveals that Julia has been actively looking for work in the medical field. Under a volume of documents entitled "New skills development" (Tab 4 of Exhibit 6) are numerous copies of email and web exchanges. I have reviewed these documents. She has applied for the positions of medical secretary, medical assistant and medical office administrator. Julia is trying to find work, but she is older now and many of these jobs in the medical field require current education. I agree with her assessment that she is too old to start at an entry level position with these offices and lacks the experience that would make her attractive to these employers. Finding work in the medical field has been difficult.

[60] In any event, Julia has found some part time work as a medical office assistant for a walk-in medical clinic in Mississauga. This position pays her minimum wage at $14.00 per hour. The job is not full time and she only started it in late 2017. It provides her shifts that total about 20 to 25 hours per week.

[61] In short, I am satisfied that Julia is trying to find work that will pay her a significant income in the medical field but has not been successful. The best that she can do at this time is to land part time work as a medical office assistant.

[62] Second, contrary to Oleg's position, I find that Julia has also been diligent in trying to earn income outside of the medical field. From 2014 to 2017, she worked as a cashier in a grocery store. She also worked as a business manager for an office. In any event, I am not convinced that a position in retail or office administration would pay Julia more than the minimum wage that she is earning at the medical clinic. Oleg has provided no examples of a non-medical job that would earn her a significant income.

[63] Third, I agree that Oleg's expectations that Julia should find a position in medicine are unrealistic. In response to Oleg’s suggestion during cross-examination that she could explore practicing medicine in the United States, Julia pointed out that this was not going to happen in light of the challenges in writing equivalency exams in the United States. It also seems to me that her current hours at work (5:00 to 12:00 a.m.) and her responsibilities to Nickey would prove to be challenges in attempting to study for medical equivalency exams in the United States.

[64] Fourth, I am satisfied that Julia is doing all she can to find work in the medical field. These efforts include attempting to volunteer at medical clinics to find leads for paid full time work and attending at free medical conferences to network with other professionals. However, Julia testified that many medical clinics have advised her they will not take volunteers and she further points out that the networking has not led to any promising leads.

[65] Finally, I also agree that the absence of interviews does not mean that Julia is not actively looking for work. I agree with Julia’s testimony that the reality of employment searches in 2018 is that applications are often done online without an interview. Julia has testified that she will often respond to online advertisements but she does not receive any responses to her inquiries. The documentation she has provided in Exhibit 6 support her claims that in 2017 and 2018 she has been diligent in applying to online ads. This evidence was not challenged by Oleg.

[66] In conclusion, I am not persuaded by Oleg’s submission that Julia has not made any reasonable effort to find work in the medical field or any other field. I find that Julia has made reasonable efforts and has been diligent. Therefore, there is no material change in circumstances since 2012. When I review Julia’s circumstances in 2018, there is no basis to terminate or reduce spousal support.

(v) Issue 3: The Criminal Convictions of Julia

[67] In 2008, Julia pleaded guilty to criminal harassment, failing to comply with an undertaking and failing to comply with a recognizance. The charges arose out of an attempt by Julia to start a relationship with the children's doctor. A judge of the Ontario Court of Justice entered a conviction by suspending the passing of sentence and placing Julia on a period of probation for 12 months. Durno J. dismissed Julia's appeal (Durno J.’s reasons are reported at R. v. Petrenko, 85 W.C.B. (2d) 694).

[68] Oleg submits that if Julia is prohibited from working in the medical field because of her criminal record, then she should find work outside of it to become self-sufficient.

[69] Julia objects to the criminal record being raised and argues that Oleg has placed prejudicial evidence before the Court.

[70] I agree with Julia. I do not view any of this information as relevant to whether Gordon J.'s order should be varied.

[71] First, it is not clear to me that Gordon J. had this information before him in 2014. Even if he did, his Honour did not mention the decision and it appears to have had no bearing on his decision.

[72] Second, I fail to understand how the existence of a criminal record assists Oleg's argument relating to self-sufficiency. If Durno J.’s decision demonstrates that Julia has a criminal record, then it supports her claim that Oleg is unrealistic in his view that she can work and earn a significant income. Indeed, many employers would require a criminal record check. I do not see how the fact that she has a criminal record assists Oleg’s argument that she should be finding work.

[73] Third, Julia is not claiming that she cannot work because of her criminal record. Indeed, Julia was very upset about this issue being raised and my sense is that she would prefer to put that incident behind her.

[74] I have reviewed Durno J.'s decision and I see nothing in that decision that could assist Oleg with his claim. I have reached the conclusion that bringing this decision to my attention was ill conceived. I am not persuaded it assists Oleg in his arguments. The existence of a criminal record is not a material change in circumstance, nor is it a basis to change Gordon J.’s order.

FRO Enforcement

[75] Julia requested that I formally order Oleg to make payments to FRO. I believe what Julia was requesting is that a Support Deduction Order shall issue. The Support Deduction Order is the enforcement mechanism to permit FRO to enforce Gordon J.'s order. His Honour has already made a Support Deduction Order. If I dismiss the application, then that part of Gordon J.’s order remains.

Conclusion

[76] I have considered Oleg’s arguments with the following provisions of the Divorce Act in mind. There are two relevant sections that I have examined. First, section 17(7) of the Act states:

(7) A variation order varying a spousal support order should

(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;

(b) apportion between the former 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 former spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.

[77] Second, Section 15.2(4) states that in order to determine whether or not an order for support should be made, the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including:

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

(c) any order, agreement or arrangement relating to support of either spouse.

[78] Taking into account these sections of the Divorce Act, I return to some of the points highlighted by Gordon J. in 2014:

(a) this was a long marriage;

(b) Julia is caring for their son Nickey;

(c) Oleg is earning substantially more than Julia;

(d) Oleg's financial situation is relatively secure with his employment at Halton Police; and

(e) Julia’s financial situation is relatively unstable.

[79] Since 2014, Julia's financial situation has not improved. She is still responsible for Nickey and is ensuring that he is taken care of. Julia is making efforts to try to become self-sufficient but given her age and lack of recent experience, she has found it very difficult to find work as a clinical research assistant or in the medical field.

[80] Oleg has not persuaded me that there is a material change in circumstances since 2012. Nor do I see any basis to terminate or reduce spousal support on a review of Gordon J.'s order. Therefore, clause (v) of the final order of Gordon J., dated January 16, 2014 shall continue.

[81] I also make the following orders:

1. By May 31 of each year, the parties shall exchange their Income Tax Returns and Notices of Assessment for the prior year, and any other information reasonably required to determine ongoing child and spousal support; and
2. Each party shall promptly disclose to the other party any change of employment or acquisition of employment, and shall provide to the other party a copy of his or her employment contract and terms of remuneration. This will facilitate prompt variation of child and/or spousal support in the event that a change in income is material.

Costs

[82] If the parties cannot agree on costs, costs submissions may be provided on the following schedule: Julia may provide brief written costs submissions (no more than three pages) and a Bill of Costs within 15 days; Oleg may provide brief responding costs submissions and a Bill of Costs within 15 days of receiving Julia's submissions. No reply submissions are permitted.

[83] The submissions should be sent to the judicial assistants in Milton who will then forward them to me in Brampton.

[84] I thank both parties for their respectful and appropriate conduct throughout the trial.

Coroza J. Released: September 19, 2018