Overview
COURT FILE NO.: FC-14-2268-3
DATE: 2021/05/05
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Louise Laporte, Applicant
AND
Jacques Laporte, Respondent
BEFORE: Justice Mark Shelston
COUNSEL: Marie-Hélène Godbout, for the Applicant
Bruno Sharpe, for the Respondent
HEARD: April 22, 2021
ENDORSEMENT
Overview
[1] The applicant seeks the following claims for relief:
a) An order that the respondent pay to the applicant $3281 per month as spousal support commencing April 1, 2019.
b) An order that the respondent pay to the applicant $3371 per month as spousal support for each of the months in the year 2020.
c) An order that the respondent pay to the applicant $3371 per month as spousal support commencing on January 1, 2021 and on the first day of each month thereafter.
d) An order determining whether or not the applicant has a child support obligation for Zachary Laporte.
[2] In response, the respondent seeks following:
a) An order dismissing the applicant’s claim for interim retroactive spousal support and spousal support.
b) An order that the applicant’s obligation to pay child support to the respondent for the benefit of Zachary Laporte born July 22, 1999 ceased on December 31, 2020.
Background
[3] The parties married each other on May 4, 1991, separated on September 1, 2013 and were divorced by divorce order dated February 19, 2015.
[4] The parties have three children namely:
a) Katherine, 27 years of age and independent.
b) Alexandre, 26 years of age and living with the applicant.
c) Zachary, 21 years of age and living with the respondent.
[5] The parties resolved all issues arising out of the breakdown of their marriage pursuant to a separation agreement dated November 13, 2013. The relevant provisions of the agreement provided that the parties would share decision-making for the three children, Katherine and Zachary would reside with the respondent and Alexandre would reside with the applicant, the respondent would pay net set off child support of $300 per month and the parties divided their assets.
[6] At the time the parties entered into the separation agreement, they were both 45 years of age, the applicant was employed as an administrative assistant with a law firm with the projected income for 2013 of $44,437 and the respondent was employed at the RCMP with an anticipated income of $109,000.
[7] With respect to spousal support, the parties agreed as follows:
a) Commencing October 1, 2013, the respondent would pay the applicant $1200 per month in spousal support.
b) The spousal support would be subject to an annual cost-of-living adjustment based on the formula set out in paragraph 6.9 of the agreement.
c) If the parties were unable to agree on any issue relating to spousal support, they shall proceed to invoke the dispute resolution provisions of the agreement.
d) The parties intended the provisions of the spousal support in the agreement to be final, except for variation by reason of a material change in circumstances as set out in paragraph 6.11 of the agreement.
[8] In March 2016, the parties entered into an Addendum as a result of Katherine completing her first post-secondary degree and Alexandre leaving his post-secondary studies. At that time, the applicant’s income in 2015 was $45,416 and the respondent’s income was $112,517. Consequently, the parties agreed as follows:
a) The applicant would pay to the respondent $410 per month for table child support for Zachary based on an annual income of $45,416.
b) The respondent would pay to the applicant $1740 per month as spousal support.
c) The spousal and child support provisions would remain fixed for 3.5 years, unless Zachary completed school prior to April 30, 2019, under which circumstances the spousal support provisions may be reviewed by either party.
d) The spousal support provisions may be reviewed, in any event, as of April 30, 2019.
e) The applicant acknowledged that the spousal support amount that was less than the mid range amount set out in the Spousal Support Advisory Guidelines and that the respondent acknowledged that he may have owed the applicant a higher amount.
[9] The parties attended mediation in June 2020 without success. Litigation started soon thereafter.
Applicant’s Position
[10] The applicant submits that the spousal support should have changed as of April 2019 because Zachary should have completed his post-secondary degree by that time, thereby triggering a review of the spousal support.
[11] The applicant submits that the incomes of the parties increased since the Addendum in that in 2019, the applicant earned $61,543 while the respondent earned $161,541. In the year 2020 the applicant earned $57,000, while the respondent earned $159,763.
[12] Based on these changes the applicant argues that the spousal support should be in the high range, that spousal support entitlement is not in dispute, that she is entitled to compensatory support as well as spousal support based on the separation agreement and Addendum, that the respondent has stated he wants to retire in the year 2023 and that the applicant cannot afford to retire.
Respondent’s Position
[13] The respondent’s position is that support for Zachary should have ended on December 31, 2020 and that on a motion for temporary spousal support, the court is not in a position to conduct an in-depth analysis of all the factors to consider in awarding spousal support. Further, the respondent submits that there is no need or undue hardship requiring the court to intervene on an interim basis to vary the amount of spousal support based on the original separation agreement and the Addendum. Based on her income and spousal support, the applicant’s total income in 2021 is $80,880.
Termination of Child Support for Zachary
[14] Based on the respondent’s admission that child support for Zachary should have ended as of December 31, 2020 when he finished his post-secondary education, the question is whether it should be varied retroactively to April 2019 at a temporary motion.
[15] Zachary completed grade 12 in June 2017 and started a two-year college degree in computer programming at La Cité Colégiale. He should have completed the program in April 2019 but completed it in December 2020.
[16] The respondent states that Zachary was delayed in graduating because he struggled with his studies as a result of the 2017 college strike and the start of the pandemic in March 2020. The applicant denies that these are valid reasons and states that both parents were concerned that Zachary was not taking his studies seriously, that he was playing video games late into the night, that his gambling routine rendered him too tired to focus on his studies and that Zachary needed to complete his homework and assignments to succeed.
[17] In support of her position, the applicant provided a copy of Zachary’s report card showing that from September 2017 to the fall 2019, he failed 9 of 30 courses. Both party’s affidavits contradict each other on why Zachary did not complete his diploma in April 2019. On the record before me, I cannot conclude that Zachary’s support should have ended in April 2019. The trial judge will be in a better position to receive all of the documentary evidence and receive the viva voce evidence to determine when Zachary’s support should have ended.
[18] However, based on the admission of the respondent, I order that the applicant’s obligation to pay child support for Zachary ended as of December 31, 2020. The issue of termination as of April 2019, is an issue for the trial judge.
Retroactive Spousal Support
[19] The applicant seeks a spousal support commencing April 1, 2019. Upon a review of the affidavit material, there are various issues that need to be determined before a court can make a final decision on support such as:
a) Should Zachary’s entitlement to child support have ended on April 1, 2019, or December 31, 2020?
b) In determining the respondent’s income, should the court include any part of the respondent’s post-separation income?
c) In determining the applicant’s income, does she receive rental income from Alexandre and non-declared employment income?
[20] At this time, I do not have sufficient information to be able to answer the questions listed in paragraph 19 herein. These issues must be decided by the trial judge who will have a complete record including the viva voce testimony of the parties.
[21] In addition, in my view, the applicant is attempting on an interim motion to obtain a final order on an issue that was set out in her originating application. I find that the applicant is effectively seeking a final order by summary judgment on the issue of retroactive spousal support. There are simply too many issues that are in dispute to provide the court with the required evidentiary record to make the necessary findings at this stage of the litigation.
[22] I dismiss the applicant’s request for retroactive spousal support as it should be resolved by the trial judge.
Ongoing Spousal Support
[23] On an interim motion for spousal support, the applicant is required to only provide a prima facie entitlement to spousal support. In this case, based on the separation agreement, the Addendum and the history of the party’s relationship, I find on a prima facie basis that the applicant is entitled to spousal support.
[24] An interim order is designed to provide sufficient support to allow the parties to proceed to trial where the court will consider all the evidence especially where the current evidence is conflicting and incomplete.
[25] A court on an interim motion balances the interests of the recipient and the payor considering their respective incomes, expenses, assets/liabilities and any existing agreement.
[26] The amount paid by the respondent to the applicant pursuant to the separation agreement and Addendum is only one factor to consider at a temporary motion for spousal support.
[27] Counsel for the applicant has provided me two cases being Bailey v Plaxton 2000 22345 (ON SC), 47 O.R.(3d) 593 and Taimoori v Fanainan 2000 CarswellOnt 2847. In Bailey v Plaxton, the court ordered spousal support in the face of a spousal support release in a separation agreement. In the second matter, Taimoori v Fanainan, Polowin, J ordered more spousal support that was provided for in a separation agreement based on the need of the recipient.
[28] The respondent has provided two cases being Macy v Macy 1983 1729 (ON CA), 43 O.R.(2d) 385 and Jones v Murray, 2005 233318. In Macy v Macy, the Court of Appeal stated that that the court’s jurisdiction under the Divorce Act is not displaced by a separation agreement and that the agreement is to be given considerable weight as to what the parties had agreed to. The court ruled that it would not intervene on an interim-interim basis where the quantum of support set out in the separation agreement was “fit and just”. In Jones v Murray, the court held the court should proceed with great caution where granting interim relief which would contradict or nullify a contract signed by the parties.
[29] The applicant submits that the spousal support award should be based on the respondent’s increased income based on the factors set out in the jurisprudence as well as the 2016 Revised Users Guide for the Spousal Support Advisory Guidelines. The applicant has provided a series of Divorcemate spousal support calculations for the years 2019 and 2020. For the years 2019, the applicant has provided the respondent’s line 150 income and alternatively utilizes the figure of $136,000 (being his base salary in his current position) and for 2020 using his line 150 income. All three of the calculations are based on including some or all of the respondent’s post-separation increases in income.
[30] The respondent challenges the inclusion of all his income in these calculations arguing that three years after the separation, he completed a diploma as well as completed various management programs that gave him the necessary qualifications to apply for a position as a director within the RCMP. The respondent submits that without that diploma and these programs, he would not have been eligible to even apply for the position. Finally, he indicates that had he stayed in his position that existed at the date of separation, his salary today would be $118,499.
[31] I find that there is a significant triable issue as to whether the applicant has an entitlement to share in the significant post-separation increases in the respondent’s income. This issue requires an in-depth analysis. At a temporary motion, the court is restricted to affidavit evidence without cross-examination. At a trial, the judge will be able to receive all of the evidence to be able to conduct the required analysis.
[32] Currently with the payment of $1740 per month plus the applicant’s annual income of $60,000, her total income in 2021 will be $80,880 or $6740 per month. With the termination of child support, the applicant’s monthly expenses will be approximately $5105.70 per month, leaving her with a surplus of at least $1634.30 per month. Her current debts are her mortgage and car loan.
[33] Considering that this is an interim motion, that the income determination of both parties is in dispute, that the applicant will have a surplus of approximately $1634.30 per month and that there does not appear to be any financial hardship or urgency in the applicant’s financial position, I will maintain the status quo and order the respondent to pay to the applicant spousal support in the amount of $1740 per month commencing May 1, 2021.
Costs
[34] The respondent is the successful party and is presumptively entitled to costs. I request that the parties attempt to settle the issue of costs by May 14, 2021. If they are unable to do so, I order the respondent to provide his costs submissions not to exceed two pages plus a detailed bill of costs and any offers of settlement to be provided by May 21, 2021. I order the applicant to provide her cost submissions not to exceed two pages plus a detailed bill of costs and any offers to settle by May 18, 2021.
Date: May 5, 2021
COURT FILE NO.: FC-14-2268-3
DATE: 2021/05/05
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Louise Laporte, Applicant
AND
Jacques Laporte, Respondent
COUNSEL: Marie-Hélène Godbout, for the Applicant
Bruno Sharpe, for the Respondent
ENDORSEMENT
Justice Mark Shelston
Released: May 5, 2021