DATE: 2020/01/27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Andrée Lise Corbeil, Applicant
– and –
Martin Pierre Corbeil. Respondent
Diana Carr, counsel for the Applicant
Karen P. Pelletier, counsel for the Respondent
HEARD: October 26, 27, 28 and 29, 2020
CHARBONNEAU, J.
Reasons for Judgment
[1] The applicant brings this application seeking a divorce, joint custody of the parties two children, child support, spousal support equalization of the parties’ net family property and costs. The application was initiated on September 10, 2018.
[2] The parties started cohabiting in August 2008, married in June 18, 2011 and separated on March 3, 2018. They have two children namely Rosalie born on April 14, 2013 and Benoît, born on August 11, 2015.
[3] The respondent wished to obtain a position with the Ottawa Police Department, but no position was available at that time. The respondent accepted a job with the Calgary Police Department in 2008 and the parties moved from Ottawa to Calgary and started cohabiting. The parties agreed to move to Calgary and allow the respondent to obtain police experience until an opening presented itself in Ottawa.
[4] When they left Ottawa in 2008, the applicant was earning a good salary at the Bank of Canada. While in Calgary and upon their return to Ottawa, the applicant was out of work. She did earn small amounts doing photography and some knitting work. Shortly after returning to Ottawa in 2010, she obtained a position with the Canadian Foundation for Innovation. The parties agreed that she would leave that job when her second child Benoît was born in August 2015 and stay at home to care for the children. At that time, she was earning $49,000 annually. She was not working at the time of separation. She now works for the Cooperators Insurance since September 2019 and presently earns $44,500 annually.
[5] The respondent started working as a police officer in Ottawa in November 2010 and he earned approximately $108,500 annually at the time of separation.
[6] The parties agree on joint custody but cannot agree on the primary residence and the parenting schedule.
The Issues
Parenting Schedule
Whether the applicant should be imputed an income for the period after separation until when she first obtained employment with Cooperators. If so, in what amount.
Child support: Quantum and from what date.
Spousal support: Quantum, from what date and whether definite or indefinite
Equalization: Whether the applicant is entitled to share in the value of the respondent’s pension from the date of cohabitation to the date of marriage based on constructive trust.
Occupation rent: For the period the respondent occupied the matrimonial house alone until the date it was sold.
Accounting for the amounts paid only by the respondent towards joint debts
The Position of the Parties
1) Parenting schedule
The applicant submits that the children should have their primary residence with her because she is closer to the children because she was their primary care giver for the first years of their life and this situation mostly continued until separation. She submits that the respondent put most of his energy in his police job and worked long hours. The respondent had little patience with the children and often lost his temper and yelled. The children developed a fear of their father. This became worst at the time of separation.
[7] The applicant submits that she tried to accommodate the respondent by agreeing to a parenting schedule which met the respondent’s work schedule. The applicant submits that this is not in the best of the children who face a change of home up to 4 times a week. The transfers were always difficult and involved multiple stops from home to school, school to daycare, to the father’s home, to the arena where exchange took place to the mother’ home. As a result, the children’s behaviour has changed. Benoît is aggressive. Rosalie is stressed. Both children are confused, unsure and anxious. The respondent shows a lot of anger towards the applicant and the children have started imitating their father’s language and attitude toward her.
[8] The applicant proposes that the children have their primary residence with her, and the respondent have access every second week-end from Friday after school to Monday morning prior to school and every 2nd Wednesday night after school when it is not his weekend access week.
[9] The respondent submits that there has been a status quo since separation where the parties agreed to share the care of the children based on his work schedule. This was formalized in an interim agreement in place since November 26, 2018. The respondent submits the children are thriving in the present arrangement and there is no reason to change the parenting schedule. Both parties are capable of properly caring for the children and the children should have maximum time with each parent. The applicant’s plan will have the children away from their father for 8 consecutive days. Maintaining the status is therefore in the best interest of the children.
2) Imputing an Income to the Applicant
[10] The respondent asks the court to impute an annual income of $30,000 to the applicant for the 18 months from the separation to September 2019 when she started working for Cooperators. The respondent submits that the applicant should be imputed an income of $50,000 for 2020, an income similar to what she was earning in 2016 at the Foundation.
[11] The applicant disputes the respondent’s claim that an income should be imputed for the 18 months after the separation. At that time, she had been out of the work for almost 4 years, was caring for Benoît who was not yet in school. She was dislocated and under great stress as a result of the respondent’s harassment and anger and she required counselling. In any event for 2019, she admits receiving $31,061 both from social assistance and her first 4 months at Cooperators. In 2020, she is earning $44,500 and there is no cogent evidence that she could be earning a better income.
3) Child Support and Spousal Support
[12] The applicant submits that the respondent must pay child support from the date of separation based on the respondent’s annual income of $108,793 in 2018, $113,296 for the respondent and $31,060 for the applicant in 2019 and $111,000 for the respondent and $44,500 for the applicant in 2020. This would result in arrears of child support to September 30, 2020 in the amount of $13,052 when crediting the monthly amount of $1,000 paid by the respondent starting on December 1, 2018.
[13] The applicant also claims spousal support starting at the time of separation from March 2018 to September 30 of 2020 resulting in total spousal arrears of $41,013. The applicant submits the mid range of the SSAG and that the award should be indefinite.
[14] The respondent agrees with the gross amount for his annual income in 2018, 2019 and 2020 namely $108,792.96, $113,295.79 and $111,500 respectively. The respondent points also to the fact that his base annual salary is $103,084 and he has to pay annual union fees of $2,185.56. The respondent has calculated the arrears taking into account that the court would impute an annual income of $30,000 to the applicant, for the first 18 months of separation and $50,000 annually in 2020, resulting in net arrears of child support of $10,016 as of November 1, 2020.
[15] The respondent submits that the amount of spousal support should reflect a 50/50 Net Disposal Income for the parties which would results in an amount lower than the low range of the SSAG. The respondent alternatively submits that the amount should be the low end of the Guidelines. Finally, the respondent submits that a 10-year limit on spousal support would be fair and sufficient to enable the applicant to re-establish herself given her past ability to obtain well paying jobs.
[16] The respondent also submits that any retroactive spousal support for 2018 and 2019 be discounted for the tax purposes.
[17] The ongoing spousal support should be $344.00 per month for 2020 and should be tax deductible for the respondent and taxable for the applicant. It should be limited to 10 years.
5) Equalization of Net Family Property
[18] The parties are in agreement with all the values required to equalize the parties’ net family property. They also agree that the payment of the equalization payment should be by a rollover from the respondent’s pension into a locked-in plan owned by the applicant. To determine the exact amount of equalization payment, the only issue left is whether the applicant has established a propriety right to ½ of the value of the respondent’s pension during the cohabitation period by virtue of a constructive trust. The parties agree that the equalization payment owed would be $65,907.32 or $72,881.59 depending on the outcome of the unjust enrichment claim. The parties have also agreed that the amount must be grossed up to either $73,393.45 or $81,159.89.
[19] The applicant submits that the parties were engaged in a joint family venture for the years of cohabitation. The applicant submits that the evidence has established the three elements of unjust enrichment namely he is enriched by retaining a larger portion of the pension with a corresponding deprivation to her without any juristic reason to support such outcome. The applicant relies on two decisions of this court: Francis v Cloutier [2011] O.J. No. 6198 and Bertrand v Bertrand [2001] O.J. No. 4862.
[20] The respondent submits that the application has not proved the three elements needed for unjust enrichment. The respondent relies on the Court of Appeal’s decision in Symmons v Symmons 2012 ONCA 747. In that case, the court ruled that for unjust enrichment, the applicant party must demonstrate that one party has retained a disproportionate share of the economic fruits of the joint efforts. The respondent submits that the facts of this case do not justify a finding that the respondent is retaining a “disproportionate” share of the pension.
6) Occupation Rent
[21] The applicant submits that the respondent should pay between $1,500 and $2,000 a month for the 15 months he occupied the matrimonial home alone. The applicant concedes that she failed to introduce evidence of the fair rental value of the house but submits in light of the evidence that she is paying a rent of $1,595 a month for her townhouse in Orleans. The court can infer from that evidence that $1,500 to $2,000 monthly for a detached home is a fair reasonable rent. The applicant claims ½ of that amount for 15 months.
[22] The respondent, on the other hand, submits there is no evidence of the rental value of the home for the relevant period and therefore the claim for occupation rent must be dismissed.
[23] In any event, the respondent submits that the applicant left voluntarily and moved to her father’s place where she was not paying rent. The evidence of the amount the applicant is paying presently is not a reasonable comparable given the time and location differences.
7) Post-separation Adjustments
[24] The respondent claims half of the amounts he alleges he paid after separation for the joint benefit of the parties. These are made up of payments on joint debts, all expenses associated with the matrimonial home, recreational trailer and car insurance, the applicant’s life insurance, gym membership and cell phone, some of the applicant’s credit card charges. The respondent submits that his efforts and payments allowed the parties to sell the house for a good price and having presently $51,116.25 in trust from the sale of the home. The respondent alleges he paid expenses totalling $24,112.06 after deducting the sum he kept from the sale of the truck. He claims a deduction of this amount for any retroactive support he is ordered to pay.
[25] The applicant agrees to pay $6,547.17 of the amount claimed. This amount relates to various expenses specifically related to her like her car insurance or life insurance.
Analysis
1) Parenting schedule
[26] I accept the applicant’s evidence that the respondent made life very difficult for her and the children in the first year or so after separation. The respondent, who I find is a good and loving father in normal circumstances, reacted very badly to the applicant’s decision to leave him. This led him to try to control the applicant by trying to force her to stay with him in the matrimonial home, harassing her and demeaning her. He was angry and he showed it by using aggressive and demeaning language, by shouting and by failing to protect the children from his conduct towards their mother. The children were emotionally affected by this and continue to be so affected. I reject the respondent’s evidence to the contrary.
[27] I accept the applicant’s evidence that she tried hard to accommodate the respondent’s schedule and this is evidenced by the terms of the temporary agreement. I also accept that after a reasonable attempt to have that parenting schedule work, the children showed clear signs of stress, tension and confusion. The exchanges were too often too chaotic due mainly to the respondent’s anger towards the applicant. As a result, the schedule proposed by the respondent is not in the best interest of the children.
[28] I find that the parenting schedule proposed by the applicant is the one in the best interest of the children at this point in time in their life. The regular access plus the holiday and school break periods of access will provide ample opportunity for the children to develop a strong and stable relationship with their father. I fix the holiday schedule and other terms of access with the terms set out in schedule “B” found at TAB 37 of the applicant’s book of documents.
2) Imputing an Income to the Applicant
[29] I reject the respondent’s claim in this regard. I find there is no cogent evidence to conclude the respondent could have obtain employment prior to September 2019. She had been out of the work force for many years, the respondent’s behaviour made it very difficult for her, she needed and obtained counselling. It was reasonable in all the circumstances that she have a period to settle down and look for proper employment. She did so and obtained a very good job providing her with an income almost as high as what the respondent seeks to have her imputed for 2020. There is no evidence that she is underemployed in any way.
7) Post-Separation Adjustments
[30] The respondent claims the amounts he alleges he paid after separation for the joint benefit of the parties. These are made up of payments on joint debts, all expenses associated with the matrimonial home, recreational trailer and car insurance, the applicant’s car insurance, life insurance, gym membership, cell phone and some of the applicant’s credit card charges. The respondent submits that his efforts and payments allowed the parties to sell the house for a good price and having $51,116.25 in trust. I find the respondent is entitled to be paid ½ of the reduction of the principal balance of the mortgage, of the mortgage interest, of the realty taxes, of the house insurance, and of the mortgage insurance. He is also entitled to be repaid fully in relation to the applicant’s life insurance, car insurance, visa charges, and Fit For Less membership fees. He is also entitled to be reimbursed for ½ of the payments he made on the recreational vehicle. He must account for ½ of the $3,000 he received on the sale of the recreational vehicle. As he was occupying alone the matrimonial home, he is not entitled for reimbursement for the utilities.
[31] Counsel have provided the amounts relative to those expenses and should be able to make the necessary calculations based on my decision. If not, they can communicate with my judicial assistant.
5) Equalization Payment
[32] I agree with the respondent that he has not been unjustly enriched. I rely on the decision in Symmons to conclude that in the particular circumstances of this case, the applicant has not shown that the respondent is retaining a disproportionate share of the pension fund. The amount in dispute is relatively small in the context of the overall value of the pension, the period of cohabitation and the length of the marriage. As the Court of Appeal states in Symmons, it is only in rare occasions that the provisions of the Family Law Act will not result in a fair equalization. I do not find this is a case where we should depart from the statutory framework.
[33] I therefore fix the equalization payable by the respondent at $73,393.45.
6) Occupation Rent
[34] The applicant did not introduce any evidence that would allow the court to establish the fair market rental value of the home. The court cannot fairly estimate that value without proper comparables. The claim for occupation rent is dismissed.
3) Child Support
[35] I find that the income of the respondent for the years 2018 and 2019 is $108,793 and $113,296 respectively. These amounts are reflected in line 150 of his income tax statements and were used by the applicant in her calculation of arrears. For the year 2020, I fix the income of the respondent at $110,000. As indicated earlier, I am not prepared to impute an income to the applicant for any year.
[36] As a result, I accept the applicant’s calculations for 2018 and 2019. I find there is no reason that would justify not ordering retroactive support back to the date of separation. The respondent is entitled to a credit for the amount of $1,000 per month he paid starting December 1, 2018. I find the arrears for 2018 total $13,202. To reach this amount, I have applied the guidelines amount for two children on a salary of $108,800 less one payment of $1,000 ($1,578 x 9 = $14,202 - $1,000 = $13,202).
[37] For the year 2019, I find the set off amount of support is $1,159 ($1,634 - $475); therefore the arrears total $1,908 ($1,159 x 12 = $13,908 - $12,000 = $1,908).
[38] I arbitrarily fix the 2020 income of the respondent at $110,000, a figure approximately halfway between the amount estimated by each party. If it turns out that there is a substantial difference between my estimate and the actual amount, the parties should be able to address the matter between themselves.
[39] As a result, I determine the arrears of child support for 2020 total $-876.00 ($927 x 12 = $11,124 - $12,000 = $876).
[40] I invite counsel to review my calculations. Should an error be found, I would ask that you communicate with my judicial assistant.
4) Spousal Support
[41] I find that there is no reason not to fix the spousal support retroactive to the time of separation. I fix the start of the spousal support as of May 1, 2018.
[42] In all the circumstances, the amount of support should be set at the mid-level of the SAGG for 2018 and 2019. It should however be at low end of the SAGG for 2020 and for ongoing support.
[43] Given the age of the applicant and her ability to find good employment, support will be limited to 10 years terminating on December 31, 2029.
[44] I also agree with the respondent that retroactive spousal support for 2018 and 2019 should be discounted for tax purposes and the respondent is entitled to a set-off against the post-separation expenses I granted to him. The ongoing support will be deductible in the respondent’s hands and taxable for the applicant.
Conclusion
[45] Counsel for the applicant will prepare and submit a draft judgment in accordance with my reasons to respondent’s counsel for her review. If there are any disagreement, counsel may communicate with my judicial assistant.
[46] The claim for divorce is allowed and a divorce order is to issue.
[47] Counsel will exchange brief written submissions on costs and provide me with a copy of each within 30 days.
Michel Charbonneau
The Honourable Justice M.Z. Charbonneau
Released: January 27, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Andrée Lise Corbeil, Applicant
– and –
Martin Pierre Corbeil, Respondent
REASONS FOR JUDGMENT
Charbonneau, J.
Released: January 27, 2021