COURT FILE NO.: D-21416/15
DATE: 2020-03-26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Natalie Louise Despatie
Applicant
– and –
Robert Lucien Rheaume
Respondent
Jerome Gardner, for the Applicant
Robert Lucien Rheaume, appearing in person
HEARD: March 11, 12 & 13, 2020
REASONS FOR JUDGMENT
R.D. GORDON, J.
Overview
[1] The parties separated in 2015 after a marriage of more than 16 years. To their credit, they have managed to resolve several issues arising out their separation. This trial was held to resolve those matters upon which they could not agree.
Background Facts
[2] The parties were married on October 9, 1999. Together they have two children, Alexandre Louis Joseph Rheaume, born February 5, 2002 (“Alex”), and Anika Jacqueline Rheaume, born February 18, 2010 (“Anika”).
[3] They have agreed that their date of separation was January 16, 2015. They continued to live in the matrimonial home together until May 9, 2015 when the applicant left. The respondent remained in the home. They shared custody of both children for a time, however the relationship between Alex and his father began to deteriorate and since August of 2015 Alex has had his primary residence with his mother. There is an issue as to whether the respondent should pay the applicant child support from the time Alex began to reside with her on a full-time basis, and if so, what amount is appropriate. There is a further issue of whether additional amounts should be payable by the respondent for additional expenses incurred by the applicant that she says arise from the shared custody of Anika and extraordinary expenses incurred by her.
[4] Following her departure from the home, the applicant continued to contribute to the payment of utilities through to September of 2015. The total of the utilities bills was $1,491.50. She paid $710.75. The respondent paid the utility bills thereafter. The applicant also continued to pay $1,080 into the parties’ joint bank account every two weeks until the end of May 2016. This represented approximately one-half of the mortgage and tax payments. The respondent paid the mortgage and taxes thereafter as they fell due until the end of October when the house was sold. There remains in trust the sum of $35,679.22 from the sale.
[5] Initially there appeared to be issues of whether the applicant should be made to account for her share of the home expenses between June 1, 2016 and the date of its sale five months later and whether the respondent should be required to pay occupation rent. During closing argument, the respondent clarified that he was not seeking an order requiring her to pay one-half of the carrying costs during this time, but rather that it be a consideration in determining the child support he should be required to pay. The applicant’s claim for occupation rent was being advanced only on the basis that the respondent sought reimbursement of the expenses he paid. As he is not, the applicant no longer sought occupation rent.
[6] In 2017 the respondent was off work from January through to the end of August. There is an issue of whether either party should be obliged to pay child support during that period of time.
[7] There were several other less substantial issues that I will deal with in the course of these reasons as well.
Analysis
The Issues Pertaining to Child Support
Retroactivity
[8] In her application issued in December of 2015, the applicant claimed the payment of child support retroactive to June 1, 2015. It was not until November 30, 2017 that a temporary order was made requiring the respondent to pay the guideline amount of $385 per month beginning November 2, 2017 based upon his gross income of $91,506, the applicant’s gross income of $106,049, and the hybrid custody arrangement of Anika being shared between them and Alex being in the applicant’s care.
[9] The respondent says that he was advised by his counsel at the time that in return for his agreement to pay child support on this basis the applicant would not pursue a retroactive claim. No such term was included in the order or in any consent entered into between the parties. There is no such indication in any correspondence between counsel or the parties. There is no suggestion that the applicant gained anything in particular by agreeing to such a provision. In all of the circumstances I am not satisfied that any such waiver or concession was provided by the applicant. It follows that she is entitled to child support on a retroactive basis, however not from June 1, 2015 as claimed, but from August 1, 2015 when the shared custody arrangement for both children broke down.
The Issue of Undue Hardship
[10] Section 10 of the Child Support Guidelines provides that a court may award an amount of child support that is different from the table amounts if it finds that the spouse making the request would otherwise suffer undue hardship. A circumstance that may result in undue hardship is when the paying spouse has responsibility for an unusually high level of debt reasonably incurred to support the family prior to its separation.
[11] From June through October of 2016 the respondent was left with sole responsibility for the mortgage and tax payments on the home amounting to $14,053. Until then the applicant had been paying one-half of this amount. The respondent’s argument is that his having to make these payments should be considered when assessing his child support. Although the respondent did not provide a standard of living analysis, the evidence at trial provided the basis for the analysis required by Schedule II of the Child Support Guidelines with a reasonable degree of accuracy. By my calculation in 2016 the applicant’s income less taxes and statutory deductions was $82,912 along with an entitlement to child support of $4,560. When this is divided by the low-income measure for a household with one adult and two children ($17,649) the ratio is 4.9. The respondent’s income in 2016 less taxes and statutory deduction was approximately $70,586. Deducted from this is the guideline child support of $4,560 and $7,000 representing the additional debt paid by him. When this is divided by the low-income measure for a household with one adult and one child ($14,535) the ratio is 4.06. The applicant’s ratio is greater, meaning that she enjoyed the greater standard of living at that time.
[12] In all of the circumstances I accept that sole responsibility for this debt during this five-month period of 2016 resulted in undue hardship for him such that he should be relieved of his obligation to pay child support for the concurrent five-month period.
2017
[13] This separation, as with most, has been an unhappy one. There has been significant financial and emotional strain on both parties. It does not surprise me that one or both of them would have mental health issues arising out of the last five years of conflict. The situation has been all the more difficult for the respondent because of the breakdown of the relationship between he and Alex.
[14] When in late 2016 the respondent’s eldest son from a previous relationship was arrested for possessing a loaded firearm during a home invasion, I can see how the stress being felt by the respondent might have put him near his breaking point.
[15] When in late 2016 and early 2017 the respondent began to lose a significant amount of weight (48 pounds) the cause of which was difficult to diagnose but eventually determined to be Type 2 diabetes, I can see how his health suffered.
[16] With all three of these factors combined, it is not surprising to me that the respondent’s doctor advised him to take time away from work.
[17] The respondent made application for disability benefits which was declined. He sought at least two reviews of that decision and neither were successful. The applicant argued that his failure to succeed with the application and failure to litigate the denial should not be visited upon her and result in child support payable by her. I disagree. In my view the respondent took reasonable steps to pursue his benefits. When they were declined, he sought legal advice but had neither the retainer to pursue a legal remedy, nor the stomach to risk an adverse costs award. In his circumstances as they then existed it was not unreasonable for him to have let the matter lie.
[18] Although there is no medical documentation pertaining to the months of May through August of 2017, I accept the evidence of the respondent that his health had not stabilized to the point he could return to work until he actually did so. There can be no question that he had significantly reduced income in 2017. In my view the reduction in income was a direct result of his mental and physical health. He took reasonable steps to acquire disability benefits, but to no avail. I see no reason to attribute additional income to him such as would affect the allocation of child support. There is no reason why the applicant’s child support obligation would change over that time.
Summary of Monthly Child Support Payable
[19] In 2015 the applicant’s income less union dues was $104,949. The respondent’s income less union dues was $102,264. The child support payable by the respondent to the applicant is $524 per month for each of August through December of 2015. None was paid. Arrears for this period are $2,620.
[20] In 2016 the applicant’s income less union dues was $104,758. The respondent’s income less union dues was $90,320. The child support payable by the respondent to the applicant is $380 per month for each of January through May, November and December of 2016. None was paid. Arrears for this period are $2660.
[21] In 2017 the applicant’s income less union dues was $104,470. The Respondent’s income less union dues was $38,000. The child support payable by the applicant to the respondent is $375 per month for each of January through December of 2017. In this year the respondent paid to the applicant child support of $385 in each of November and December. The applicant should have paid $4,500 for the year. The respondent paid $770. The result is a credit to the respondent for 2017 of $5,270.
[22] In 2018 the applicant’s income less union dues was $103,513. The respondent’s income less union dues was $103,828. The child support payable by the respondent to the applicant is $580 per month for a total of $6,960. He paid $385 per month for a total of $4,620. The resulting arrears for 2018 are $2,340.
[23] For 2019 the applicant’s income less union dues was $102,248. The respondent’s income less union dues was $90,040. The child support payable by the respondent to the applicant is $423 per month for a total of $5,026. He paid $4,620. The resulting arrears are $456.
[24] Calculating 2020 child support on the same income levels as 2019, the amount payable by the respondent is $423 per month. He has paid $385 per month. His arrears for January through the end of March are $114.
[25] The net arrears owing by the respondent on account of regular monthly support as of the end of March 2020 are therefore set at $2,920.
[26] Ongoing support shall be payable by the respondent to the applicant at the rate of $423 per month beginning April 1, 2020 and payable on the first of each month thereafter.
Section 9 Expenses
[27] Section 9 of the Child Support Guidelines provides that in a shared custody situation the amount of child support must be determined by taking into account the amounts set forth in the applicable tables for each of the spouses, the increased costs of shared custody arrangements and the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.
[28] Typically, the increased costs of a shared custody arrangement are revealed through a detailed budget of expenses incurred with respect to the child whose custody is shared. I have been provided with no such budget from either parent. Rather the applicant has provided a brief of expenses incurred and claimed under ss. 9 and 7 of the Guidelines.
[29] In the absence of any evidence of the increased costs of the shared custody arrangements I decline to make any award on account of s. 9 expenses and leave the monthly payment as that prescribed by the straight application of the tables.
Section 7 Expenses
[30] Section 7 of the Child Support Guidelines makes provision for the proportionate sharing of special or extraordinary expenses incurred for the children, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses, those of the child, and the family’s spending pattern prior to separation.
[31] Child care expenses incurred due to employment are defined as a special expense and are claimed by the applicant. She has provided receipts in support of her claim. There is no dispute that the expenses have been incurred. The respondent’s position is that these expenses need not have been incurred because he has always been available to care for Anika and the expenses have therefore been unnecessary.
[32] In a perfect world, the parents of a child are able to cooperate with one another to reduce or eliminate child care costs such as have been incurred here. However, the world is far from perfect in this instance. Although the parties have managed to maintain shared custody of Anika, it has been through limiting their contact with one another rather than increasing it. In my view the applicant, by arranging child care to accommodate her employment, has acted in the best interests of the child and the parties by reducing unnecessary contact between them and ultimately reducing conflict. In this respect, the expenses have been necessary having regard to the best interests of Anika and are reasonable in relation to the means of the parties.
[33] In 2016 child care costs were $617.50. The respondent’s share would be 46% or 284.05.
[34] In 2017 child care costs were $934. The respondent’s share would be 27% or $252.18.
[35] The respondent is indebted to the applicant for a total of $536.23 on account of past child care costs.
[36] The balance of the s. 7 claims by the applicant relate to expenses incurred for what she claims are extraordinary expenses for extracurricular activities. As defined in the Guidelines, such expenses may be claimed in one of two situations: (1) The expense exceeds those that the spouse requesting the amount can reasonably cover taking into account her income including the child support received. (2) If (1) does not apply, expenses the court considers extraordinary taking into account the amount of the expense in relation to the income of the requesting parent, the nature and number of educational programs or extracurricular activities, any special needs or talents of the child, and the overall costs of the programs or activities.
[37] Having reviewed the materials filed in support of her claim, it is my view that the hockey related expenses meet the required definition insofar as they relate to registration, equipment and travel. The other claims by the applicant are not beyond what she was reasonably able to cover given her income and child support (particularly as reassessed retroactively above), nor are they otherwise extraordinary.
[38] Based on the materials filed by the applicant, I estimate the hockey expenses in each of 2015, 2016 and 2017 to be $2,000. In 2015 the respondent’s share would be 49% or $980. In 2016 it would be 46% or $920. In 2017 it would be 27% or $540. His total obligation to the end of 2017 would therefore be $2,440.
[39] The total owing by the respondent to the end of 2017 would therefore be $2,976.23. However, there are certain credits that he is due. In 2016 he purchased hockey equipment for Alex at a cost of 667.82. The applicant’s share of that would be 54% or $360.62. In addition, she sold some used equipment for $325 for which the respondent should receive credit of one half or $162.50. Deducting these amounts, the amount due from the respondent is $2,452.88.
[40] The applicant has indicated that she will rely on the temporary Order of Justice Kurke dated December 14, 2017 with respect to amounts owing between that order and the date of trial. It is to be noted that the respondent has paid Alex’s cell phone bill since September of 2018 in the amount of $73.45 monthly and those payments must be included in any reconciliation done pursuant to Justice Kurke’s Order.
Summary of Child Support Arrears
[41] In summary, the respondent owes to the applicant monthly child support arrears of $2,920 and arrears on account of s. 7 expenses up until the end of 2017 of $2,452.88. The total owing is $5,372.88.
Remaining Issues
Divorce
[42] The applicant filed an affidavit in support of the divorce. The respondent has no objection to the divorce being granted. Accordingly, the parties are divorced, with the final date of divorce being 31 days hereafter.
The Equalization Payment
[43] The parties have agreed upon the values and calculations in the Net Family Property Statement filed as Exhibit 5. Accordingly, there is due an equalization payment by the respondent to the applicant of $14,308.74.
The Proceeds of Sale of the Home
[44] There remains in trust the sum of $35,679.22 from the sale of the home. There were two additional expenses related to the sale of the home that were paid by the applicant. One was a Tarion Warranty application fee and the other was the pumping of the septic tank. The total of these expenses was $594.08. It is appropriate that she be reimbursed this amount from the proceeds of sale held in trust. Each party would have an entitlement to one half of the balance or $17,542.57. From the share of the respondent shall be paid the equalization due to the applicant of $14,308.74.
[45] In the end, the respondent shall be paid $3,233 from the remaining proceeds of the sale of the home. The applicant shall be paid the balance.
Issues Related to the Care of the Anika
[46] As agreed by the applicant at trial, when Anika is not in school, it is appropriate that the respondent’s care of Anika end at 7:00 p.m. on the day before his new set of shifts commence.
[47] There is an issue with respect to sharing the care of the child during Christmas. The applicant has traditionally had Anika in her care on Christmas Eve and Christmas morning, allowing her to celebrate the event with her extended family. The respondent would like the opportunity to spend Christmas Eve and morning with Anika on an alternating basis. In my view it would be Anika’s best interests to spend alternate Christmases with the respondent. This will allow her to build her own traditions with her father on a very important day of the year. Accordingly, beginning with Christmas 2020 and every second year thereafter, Anika shall be in the care of the respondent from 3:00 p.m. on December 24 to 7:00 p.m. on Christmas day. In 2021 and in every second year thereafter Anika shall be in the care of the applicant from 3:00 p.m. on December 24 to 7:00 on Christmas Day.
[48] There is an issue concerning the care of Anika when the applicant is unable, for some reason, to provide for her care as scheduled. The respondent asks that the applicant be required to place Anika in his care in all such circumstances. Although that might be the best option in a perfect world, as I have already indicated, this is not that world. These parties require structure that minimizes communication and interaction between them. Allowing them to determine Anika’s care during the periods of time allocated to them will minimize their communication, thereby reducing the opportunity for conflict. It also allows Anika the opportunity to be cared for by her maternal grandparents, with whom she enjoys a close relationship.
[49] The final issue concerns the scheduling of hockey tournaments. The respondent asks for an order that his care of the child be varied from time to time so that he is able to be the primary parent attending Anika’s hockey tournaments. I decline to make such an order because to do so would require communication and cooperation between the parties that is likely to foster greater unrest between them. I do not see that as being in Anika’s best interests.
Final Order
[50] Having regard to all of the above and the various issues resolved on consent, a final divorce order shall issue on the following terms:
The parties are divorced, with the divorce to be final in 31 days.
The parties shall have joint custody of the children Alexandre Louis Joseph Rheaume, born February 5, 2002 and Anika Jacqueline Rheaume, born February 18, 2010.
The child Alexandre shall have his primary residence with the applicant and access to the respondent shall be pursuant to the child’s wishes.
The child Anika shall have a shared residence between the parties.
In relation to Anika:
a. The respondent shall have Anika in his care from 3:00 p.m. on the day following his last shift until 3:00 on the day before his new set of shifts commence, as the parties have been following since separation. When the respondent’s care of Anika ends on a Sunday, and during Anika’s summer holidays, his care of Anika shall end at 7:00 p.m. rather than 3:00 p.m.
b. In addition to the parties, the children’s grandparents or other family members (including new partners) may assist with transportation and care.
The applicant shall have the children in her care on Mother’s Day and her birthday and the respondent shall have the children in his care on Father’s Day and his birthday, from 10:00 a.m. to 7:00 p.m. if the children are not otherwise in their respective care.
The respondent shall have care of Anika on December 24 at 3:00 p.m. to December 25 at 7:00 p.m. in 2020 and every second year thereafter. The applicant shall have Anika in her care that same period of time in 2021 and every second year thereafter.
The applicant and the respondent shall reasonably accommodate each other’s vacation requests on 30 days’ notice. The applicant shall hold Anika’s passport and provide it to the respondent one week prior to his out-of-country trip and then he shall return the passport forthwith after the trip. Both parties shall sign travel consent letters for Anika to travel with the other.
The applicant shall advise the respondent forthwith upon scheduling any medical appointments for Anika.
Both parties shall be added as primary contacts for emergencies for Anika for all service providers including Anika’s daycare.
Each party shall have the right to make inquiries and receive information from Anika’s religious, education and health providers.
The respondent shall pay to the applicant for the support of the children, the sum of $423 per month based upon the hybrid custody arrangement with the applicant having income of $103,488 less union dues of $1,239.72, and the respondent having income of $90,000. Payments shall begin on April 1, 2020 and be payable on the first of each and every month thereafter.
Arrears of child support owing by the respondent are fixed in the amount of $5,327.88 (which includes arrears of s. 7 support through to the end of 2017) and shall be payable at the rate of $200 per month beginning June 1, 2020 and on the first of each month thereafter until paid in full.
The parties shall have the following obligations for s. 7 expenses and shared custody expenses pursuant to s. 9 of the Child Support Guidelines:
a. Child care in relation to employment.
b. Driver’s education for both children, including all costs related to obtaining a driver’s license.
c. Winter outerwear and footwear.
d. School supplies and school related expenses (e.g. milk, pizza day, sub day, school outings, school extracurricular activity fees, yearbooks).
e. Passports and renewals thereof.
f. One summer sport.
g. Other artistic or extracurricular activities agreed upon by the parties failing which either party may seek judicial determination.
h. Hockey (including registration, equipment, fundraising shortfalls, ice-time tryout, private lessons as agreed upon).
i. Post-secondary expenses (such as tuition, books and residence) with the parties taking into account any contribution by the child and the RSP funds accumulated prior to separation shall be to the credit of both parties and any contributions after separation shall be to the credit of the party making the contribution.
j. These expenses shall be shared on a pro-rata basis. If one party incurs the entire expense, the other party shall reimburse him or her within 10 days. Any expense greater than $100 shall be discussed by the parties in advance of it being incurred. Disagreement on an expense or its reimbursement may, failing agreement, be the subject of judicial determination.
The parties shall alternate years claiming Anika as a dependant with the applicant claiming the child in even years and the respondent in odd years.
The parties shall name each child as a dependant on any health benefit plans available to them through employment for so long as each child is eligible under the terms of the plan.
The respondent shall name Andre Belanger as trustee for the children as beneficiaries of his group life insurance policy available through employment for so long as he has a child support obligation. The applicant shall name Daniel Despatie as trustee for the children as beneficiaries of her group life insurance policy through employment for so long as she has a child support obligation.
The remaining proceeds of the sale of the house, totaling $35,679.22 shall be distributed as follows: (i) To the applicant the sum of $594.08; (ii) To the applicant a further $17,542.57, being one half of the balance; (iii) To the applicant, the further sum of $14,308.74 (representing the equalization payment due from the respondent, from his share); (iv) To the respondent the sum of $3,223.83 (being the balance of his share).
[51] If the parties are unable to agree on costs, they may make written submissions to me, not to exceed six pages in length plus attachments each, within 45 days.
The Honourable Mr. Justice R.D. Gordon
Released: March 26, 2020
COURT FILE NO.: D-21416/15
DATE: 2020-03-26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Natalie Louise Despatie
Applicant
– and –
Robert Lucien Rheaume
Respondent
REASONS FOR JUDGMENT
R.D. GORDON, J.
Released: March 26, 2020