Court File and Parties
COURT FILE NO.: FS-12-380880-03 DATE: 20220401 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
YALENKA FONSECA Applicant – and – TERENCE CARTY Respondent
Yalenka Fonseca, Self-represented Kathryn Wright, for the Respondent
HEARD: March 15, 2022
papageorgiou j.
Endorsement
[1] The Respondent, Terence Carty (“Terence”) seeks to step-down and ultimately terminate his spousal support obligations with respect to his former spouse, Yalenka Xilena Diaz Fonseca (“Yalenka”). Terence has been paying Yalenka spousal support in the amount of $1,500 per month since 2011.
[2] Yalenka opposes this motion.
[3] For the reasons that follow, I am granting Terence’s motion to step down Yalenka’s spousal support and terminate it as of December 1, 2022 inclusive.
[4] I note that Yalenka did not bring any motion, but within the body of her affidavit material asserts that Terence has underpaid child support and section 7 expenses; she requests retroactive payments. There is no motion before me in respect of this, and I encourage the parties to discuss whether there are any changes to Table Support Payable by Terence.
Credibility and Reliability
[5] I gave the parties leave to conduct cross-examinations before me. I did not find Yalenka to be a reliable witness because of many inconsistences and other problems with her evidence, while Terence’s evidence was both internally consistent and consistent with the documentary record. Throughout these reasons I have given examples in support of these findings.
[6] In coming to these conclusions, I have taken into account the fact that Yalenka is self-represented but as I will explain below, she has a law degree from Colombia (the country) as well as a Masters-in-Law from the University of Toronto. She is not the usual self-represented party who is often legally unsophisticated. She was articulate, her materials were reasonably well written and she understood the family law framework for spousal support. The problems with her case were not caused by the fact that she did not technically have counsel.
[7] I add that this Motion to Change was issued in August 2021 and was originally returnable before me on December 9, 2021 as a short motion. Because Yalenka was self-represented and there were significant disclosure issues raised by Terence, this court adjourned Terence’s motion, (on its own motion) to March 15, 2022 to be heard as a long motion. This was to permit Yalenka additional time to provide the outstanding disclosure, the bulk of which related to medical records in support of her position that her health and past cancer diagnosis prevented her from completing retraining or working fulltime. She had indicated that she had been unable to obtain her medical records as of December 9, 2021 for a variety of reasons related in part to COVID.
[8] She has had considerable additional time to address outstanding disclosure and the issues raised by Terence and she has still not done so. I am drawing an adverse inference as a result: Salvatore v. Medeiros, 2021 ONSC 1488 at para 84.
[9] In all the circumstances, I accept Terence’s evidence and also prefer his to Yalenka’s evidence wherever they conflict.
Background
[10] Terence and Yalenka were married in October 1999 and separated on August 1, 2010.
The Separation Agreement
[11] Terence and Yalenka entered into a Separation Agreement on August 8, 2011 pursuant to which Terrence agreed to pay spousal support in the amount of $1,500 plus Table Child Support based upon his salary of $105,166 (the “2011 Separation Agreement”).
[12] The 2011 Separation Agreement contained the following relevant terms:
6.3: The spousal support amounts set out at paragraph 6.1 above will be fixed and non-variable until May 31, 2013. Neither party may seek a review of the spousal support arrangements until May 31, 2013, in any circumstances, foreseeable or not foreseeable.
6.4: Either party may initiate a review of the spousal support after April 1, 2013, with any new spousal support payment to be effective as of June 1, 2013. The review will address all issues relating to spousal support including quantum, duration, entitlement if raised, insurance and any other corollary issues.
6.8: Yalenka will use her best efforts to obtain employment by the time of the spousal support review. The efforts that Yalenka has made towards obtaining employment, and Yalenka’s overall circumstances at that time and since the date of separation will be considered at the time of the review.
[13] Both Yalenka and Terence were represented by counsel at the time of the 2011 Separation Agreement. Unlike the child support provisions in the 2011 Separation Agreement which specifically provided that either Terence or Yalenka could seek a change to child support if a material change occurred, there was no such language in the agreement regarding changes to spousal support [Emphasis added].
[14] In my view, the language of the 2011 Separation Agreement is clear: the spousal support agreed to was subject to review and there was no requirement that the parties demonstrate any material change. As per the Supreme Court’s direction in Leskun v. Leskun, 2006 SCC 25, a review allows a party “to bring a motion to alter support awards without having to demonstrate a material change in circumstances.” Therefore, this Court must address the issue of spousal support as a first instance support application: Sikaneta v. Oteino, [2019] O.J. No. 3801.
Entitlement to Spousal Support
[15] In making a spousal support order, 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.
Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), s. 15.2(4)
[16] An order for spousal support should: a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; b) apportion between the 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 spouses arising from the breakdown of the marriage; and d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[17] There are three conceptual grounds for support: a) compensatory; b) non-compensatory or “need”; and c) contractual: Berger v. Berger, 2016 ONCA 884, at para. 95.
[18] Compensatory support can arise from an economic disadvantage as a result of roles the parties took during the marriage or when a spouse provided a career enhancement opportunity to the other spouse: Moge v. Moge, [1992] 3 S.C.R. 813 and Ludmer v. Ludmer, 2013 ONSC 784, cited in Hourtevenko v. Hourtevenko, 2021 ONSC 7377 at para 62.
[19] Non-compensatory spousal support involves assessing the spouse’s needs and takes into account not only the spouse’s inability to meet their needs, but also any decline in their standard of living: Bracklow v. Bracklow, [1995] 1 S.C.R. 420, cited in Hourtevenko at para 63.
[20] Income discrepancy is not enough to establish entitlement. There must be evidence of a disadvantage arising from the marriage or its breakdown: Lamb v. Watt, [2017] ONSC 5838 at para 28.
Does Yalenka Have A Compensatory Claim?
[21] Yalenka graduated from a Colombian law school sometime in 1998.
[22] On October 30,1999, Terence and Yalenka were married in Quito, Ecuador.
[23] At the time, Yalenka was 23 and Terence was 32. They subsequently moved together to Vietnam where they both continued to work for five years. In Vietnam, Terence worked as a teacher. Yalenka worked first as a pre-school teacher and later as a junior kindergarten teacher. They saved their money and returned to Canada in 2005 while Yalenka was pregnant with their first child. Their first child A.C. was born on XXX XXX, 2005 and their second child, V.C. was born on XXX XXX, 2007 (the “Children”).
[24] I have reviewed many affidavits and other documents submitted by Yalenka. In her November 29, 2021 affidavit she states merely that she and Terence were married in Quito, Ecuador and that both parties were working there at the time. In subsequent materials she has begun asserting that she moved from her home country of Colombia at Terence’s request and that she sacrificed her law career in Colombia as well as living in her home country of Colombia because of him. She provides no details as to how they met or what she was doing when they did. As well, there is no evidence as to how well Yalenka did in law school, that Yalenka had any law job opportunities related to her law degree in Colombia, that she had ever worked as a lawyer in Colombia, or any other particular details in support of this alleged sacrifice.
[25] Indeed, Yalenka says that in the year 2000 when they were in Quito, she had advised Terence that she wanted to move to Canada where she could pursue her law accreditation. The point is, even though she now says she sacrificed a law career and living in Colombia, she did not suggest at the time that they return to Colombia where she had obtained her degree. Instead, she wanted to go to Canada, although they did not go to Canada right away.
[26] In 2004 Yalenka lost her job in Vietnam. Believing that her future job prospects were poor in Vietnam, the parties decided to move to Ontario in order for her to pursue a better and more secure future. Her case conference brief dated October 17, 2014 (attached as an exhibit to her December 7, 2021 affidavit) states that the parties mutually agreed to leave Vietnam in 2005 and return to Canada where Yalenka “would have the ability to pursue training in Law under the Canadian regulations.” Therefore, on her own evidence, Terence agreed to move to Ontario/Canada to assist Yalenka with her job prospects and accreditation to practice law in Ontario/Canada.
[27] Instead of doing so after they returned to Ontario, in 2007 Yalenka opened a home daycare which she ran until she was diagnosed with cancer in 2008. There is no explanation as to why she did not pursue accreditation following their move to Ontario. One could speculate that she felt it was not the right time because from 2005 to 2007 she was bearing children. Afterwards, running a home daycare may have been more conducive to the age of her Children. As well, her cancer treatment beginning in 2008 may have interfered if she had begun these studies. However, this is all speculation on my part. There is certainly no evidence or even assertion that somehow Terence stood in her way of accreditation to practice law after they returned to Ontario and no explanation as to why she did not when the 2011 Separation Agreement was signed.
[28] Her affidavit of January 15, 2022 simply states: “I believe that if I had not had had [sic] Cancer and if I had been able to develop my skills professionally in Canada, I would be in a completely different position at this time.”
[29] The only possible career advantage Yalenka conferred on Terence was the move to Vietnam where she says he obtained a job at a prestigious school. However, he was always working as a teacher before and after they met and she worked in Vietnam too. There is no evidence that Terence received increases in income or status because of any move to Vietnam or elsewhere or because of anything Yalenka did. Indeed, the only evidence before me on this issue demonstrates that he has had very little increases in his income or status in the teaching world.
[30] Accepting Yalenka’s evidence that she followed Terence to Quito and Vietnam at his request, Yalenka has some basis for some compensatory spousal support. However, this claim is not very strong and would not result in a lengthy period of support given all the circumstances. Terence never asked her to be a stay-at-home mother; indeed, there was very little evidence regarding particular roles assumed during the marriage or after. The evidence I did hear, more particularly described below, persuaded me that the parties shared and have continued to share parenting duties. As well, both parties worked throughout most of the marriage and the parties returned to Ontario in 2005 where Yalenka could commence accreditation.
Does Yalenka Have a Claim to Support on a Needs Basis?
Yalenka’s Medical Issues
[31] Yalenka’s primary argument is that she has been unable to become self-sufficient because of her breast cancer diagnosis in 2008 and treatment thereafter.
[32] This Court does not wish to diminish the significance of Yalenka’s battle with cancer. This Court recognizes that cancer is a devastating and serious illness and this Court has empathy for Yalenka as does Terence. Indeed, when she was diagnosed with cancer, Terence supported her by hiring a full time nanny at $2,000 per month using borrowed money from family, and by caring for the Children in the evenings so Yalenka could focus on her health. Before me and in his materials he has consistently expressed empathy for her.
[33] However, Yalenka’s assertion that she has not been able to complete retraining in any field or work full time because of a diagnosis and treatment which occurred more than a decade ago is unpersuasive and unproven.
[34] Yalenka’s medical records, the bulk of which were only produced after this Court made a production Order on December 9, 2021, demonstrate as follows:
a) Yalenka had a left side mastectomy in 2008 followed by a right side mastectomy in February 2009. She completed radiation in April 2009 and chemotherapy in November 2009. b) On October 20, 2009, her physician wrote “She is now cancer free from a margin perspective…The patient elected to proceed with bilateral breast reconstruction.” c) In March 2010, she had reconstructive surgery. The post-operative course was uncomplicated. On March 31, 2010 her physician wrote “she is feeling well and she is almost back to her normal routine…all wounds have healed well.” d) In January 2011 her physician concluded, “Disease-free. Patient is currently stable.” e) She had some regular follow up visits and some issues in 2011 associated with the breast reconstruction. f) On December 5, 2011, her physician wrote, “She feels well with no change in her energy level and denies any new symptoms suggestive of recurrent disease.” g) Between the end of 2011 and 2014, Yalenka had a total of 18 follow up visits. On April 28, 2014 her physician wrote “She is now 5 years since diagnosis and no evidence of recurrence…our plan is to discharge her from our clinic.” h) She had no further medical issues until 2018 when she began having problems with her implants. She ultimately had bilateral implant exchange surgery on December 14, 2018. At the December 19, 2018 follow up, her physician wrote “..her wounds have healed beautifully…her symptoms have completely resolved…she is very happy.” On March 5, 2019, she attended for follow up and reported that “she is doing extremely well..” and “all of her symptoms have resolved.” i) Yalenka has had no further appointments related to her breast cancer diagnosis and reconstruction.
[35] Terence has pointed out many inconsistencies in Yalenka’s evidence when measured against the contemporaneous medical records. In my view, with respect to these inconsistencies, her treatment occurred many years ago and it is understandable if her recall of particular dates and treatments is not strong.
[36] However, Yalenka struggled to explain why this past diagnosis and past treatment had prevented her from either completing retraining in some field or working full time. She provided vague explanations referencing the necessity for follow up and the additional procedures she had, but the records do not support the necessity for absence from full time retraining or work for eleven years after the 2011 Separation Agreement. She also asserted that cancer had left her without the stamina necessary to work or study full time. However, the medical records do not support this. Were this the case, one would have expected that she would have sought medical assistance and/or reported this to her treating physicians.
[37] There is also some disingenuousness associated with Yalenka’s recent claim that her previous cancer prevents her from working. First, she never raised health issues at the time of the 2011 Separation Agreement. As well, between 2015 and 2019, Yalenka refused on several occasions to attend mediation regarding spousal support insisting that as long as she was in school, the spousal support did not have to be addressed. As I said, I found Terence to be reliable and believable. In any event, his evidence on this issue is supported by written correspondence from Yalenka. In an e-mail to Terence dated October 26, 2015 she stated “Mediation for spousal support. I checked with the lawyer and since I am at school their [sic] is no need to meet. You have to let me finish and then if by chance I am still not employed we can do mediation.” She sent him a similar letter dated April 12, 2019. She did not raise any issue regarding her health, cancer or stamina as a reason why Terence had to continue paying spousal support in these communications.
Terence’s and Yalenka’s Means
Does Yalenka Have An Undisclosed Source of Income?
[38] There are significant concerns as to whether Yalenka has an undisclosed source of income or has been receiving support from someone else.
[39] Yalenka swears that the only sources of income she has for 2021 add up to $4,175 and that she has no other sources of income. However, she has failed to take into account monthly payments she receives from the provincial government, GST/HST rebates, and other governmental adjustments because she has dependents. Based upon her tax returns, notices of assessments and bank records, I accept Terence’s evidence that Yalenka’s current monthly income is approximately $4,400 per month.
[40] Although there are many inconsistencies in her affidavit and bank records as to her expenses, they generally show that she pays approximately $2,000 in rent, $300 in utilities, $190 for internet, and $152 for cell phone charges. She also purchased a car with loan and insurance payments in the approximate amount of $600 per month and claims she pays $80 per month for gas. These expenses total $3,322.
[41] She has also incurred considerable education expenses, and she says she has used arms-length loans as well as loans from family/friends. She has not provided any loan agreements.
[42] She received $10,000 from the Internationally Trained Lawyer’s Program. She repaid this in 2018 somehow--even though she asserts in written materials that it is still outstanding.
[43] She paid $44,033 for her Master-of-Law tuition as well as $6,400 on National Committee Accreditation exams but only notes $24,000 from OSAP outstanding.
[44] It is uncertain as to how she has been able to fund these education expenses apart from deductions on her bank statement which show $500 paid monthly in respect of the OSAP loan and $250 monthly in respect of a line of credit. Without the details of the OSAP loan application or line of credit, or evidence of loans from family members and friends, it is impossible to evaluate these loan claims. I note as well that she has not included these expenses as part of her monthly expenses.
[45] Taking into account only the above expenses would leave her with $82 per week for food, buying all the Children’s clothing and necessities as she alleges, and all other expenses.
[46] Somehow, Yalenka was able to afford a trip to P.E.I. with the Children during the summer of 2021. Terence asked her to provide verification as to how she paid for the trip to P.E.I. with all receipts. She gave shifting answers which raise more questions.
[47] Her recent bank statements also reflect considerable restaurant expenses for someone on her limited budget as follows: October: approximately $300; September: approximately $300, August: approximately $186, June: approximately $412.
[48] She was able to purchase new computers for the Children in 2020. She also gave a Google Pixel 5A phone to V.C. for her birthday in August 2021. She claims that these were a gift from an ex-boyfriend or a friend of a friend of an ex-boyfriend who she broke up with in 2013. There is no persuasive evidence as to why an ex-boyfriend from 2013 or his friends would make such purchases or give such hand me downs, and no evidence from anyone else confirming this.
[49] As well, Yalenka’s bank records for the last year show questionable etransfers to her which do not correspond to any support payments made by Terence or receipt of governmental funds.
[50] Approximately $15,000 of these etransfers are from someone named Fari Dawudian which Yalenka claims are loans.
[51] In support of the loans from Mr. Dawudian she has provided an unsigned letter purporting to be from someone named Fari Dawudian dated November 18, 2021 where he states that he is her friend, that he was aware of the difficulties she has because of her cancer and poor health, and that he had agreed to assist by way of a loan. However, there is no other explanation as to why this individual would have provided her with so much money without any written loan agreement or promissory note. She did not provide any affidavit from Mr. Dawudian although Terence requested one as part of her disclosure.
[52] As well, this letter has been submitted twice, once in her December 7, 2021 affidavit, and once in her March 8, 2022 affidavit where she apologized for having failed to produce it previously. When cross-examined, she was asked how many times Mr. Dawudian had sent her this letter and she confirmed that it was only once. However, the wording in the two letters is slightly different. For example, one letter says “I have been a friend of Ms. Yalenka…” while the other says “I am a friend of Yalenka”. One letter says he knows how “difficult and expensive it is raising children” while the other says he knows “how difficult and expensive raising children” is. The spacing in the two letters is also different. Yalenka could not explain these differences and then backtracked and ultimately said Mr. Dawudian must have given her the letter twice.
[53] Terence argues that these circumstances support the inference that Yalenka wrote the letter from Mr. Dawudian herself or at a minimum altered it. I will not go that far, but I do find Yalenka’s evidence relating to Mr. Dawudian troubling.
[54] She also claimed that some additional transfers were from someone named Mr. Huluban to assist her with her rent because of the timing of receipt of funds from the Family Responsibility Office. There is no evidence from Mr. Huluban supporting this.
[55] Therefore, although Yalenka asserts that she cannot pay her expenses without spousal support there is evidence from which I conclude on a balance of probabilities that Yalenka has an undisclosed source of income or support.
Terence’s Means
[56] Terence works as a teacher at Branksome Hall. He currently earns $111,513 annually. His monthly income is $9,292.78 and his monthly expenses before paying child and spousal support are $8,416.67. In 2016, his mother passed away and he received an inheritance in the amount of $200,000 which he has been using to offset the deficiency in his income, but he has spent it all. Now that his inheritance is gone, he is going into debt every month. His debt has increased from $70,000 in January 2021 to $125,000 in January 2022. He had to remortgage his property to a 35-year mortgage because he cannot afford the payments. He can no longer afford to support Yalenka.
[57] Terence provided analysis which shows that in 2020 Yalenka’s actual disposable income (not taking into account the questionable etransfers into her bank account set out above) was approximately $53,000 compared to his which was $39,000. This is because Yalenka does not have to pay tax on the $18,000 in spousal support since her taxable income is so low and because of adjustments in respect of dependents. Terence’s calculation and theory is supported by Yalenka’s Notices of Assessment and Tax Returns. Based upon Terence’s calculations, Yalenka’s disposal income is $14,000 greater than his. When cross-examined, Yalenka asserted that her disposable income was only $44,000 but could not explain why Terence’s calculations were wrong. Even on Yalenka’s evidence Terence’s disposable income is $5,000 lower than hers.
Impact on the Children
[58] Terence testified, and I accept that Yalenka’s failure to earn an income affects the Children. He would like to do nice things for them like take them on trips and provide them with better clothes and necessities, but he cannot afford to. He also has been unable to save sufficient money for their post-secondary education which is on the imminent horizon and for which it appears he will be solely responsible. Although Yalenka agreed in the 2011 Separation Agreement to contribute $50 per month to the Children’s RESP, she has failed to do so.
Net Disposable Income
[59] The SSAG Table shows that Yalenka has been receiving 52.6 % of the Net Disposable Income (“NDI”).
[60] Although this might make some sense if Yalenka was the primary parent paying most of the Children’s expenses and/or if she was the parent who performs most of the parenting duties, there were also many issues with Yalenka’s position regarding these issues.
[61] Terence provided evidence regarding many activities he has arranged and/or paid for including cross country skiing lessons, camps, passes to Canada’s Wonderland and Centre Island, music camp, guitar, viola, clarinet, piano and guitar lessons, kumon math tutoring when they were struggling in math, gymnastics, volleyball, swimming lessons, and school field trips. I note that Yalenka specifically states that Terence did not pay for A.C.’s clarinet but he has also provided receipts for this. I would add that arranging activities for children is not a mindless parenting task. It involves knowing what they like and don’t like, what skills they might require or which need to be nurtured, ensuring they have the necessary equipment for the activity, and understanding when one activity must give way to another. While Yalenka criticized some of Terence’s efforts, in particular skiing which she asserted the children never enjoyed, sometimes it is a parent’s job to encourage skills and activities that children may resist. This is part of being a good parent.
[62] Although Yalenka asserted that she purchases all of the Children’s toiletries and other items of necessity, when cross-examined over zoom, Terence was able to quickly retrieve many of the Children’s toiletries from the nearby bathroom. Similarly, while Yalenka testified and swore in an affidavit that she has to buy all the Children’s clothing including any seasonal items like coats (and Terence contributes “absolutely nothing”), once again, Terence was able to quickly retrieve a winter coat he had just purchased for one of the Children. He believably described the Children’s rooms where they have drawers overflowing with clothes which he wishes they would cull.
[63] He is also an engaged parent who pays attention. He knew the kinds of clothing they like (e.g. Lulu Lemon pants and baggy clothes in particular for V.C.). He said he has a membership at Costco and goes there to look for clothes they like that he can afford. He ordered pink razers from Amazon because they told him they wanted them. Although Yalenka complained that he never gave them lunch money, he said he left a bowl full of change on the kitchen counter that they could take money from, although he preferred that they made their own lunches; teaching self- discipline is also an important part of being a good parent.
[64] Although Yalenka says the Children do not wish to go to Terence’s house and so miss parenting time with him, I accept his evidence that they are with him approximately 40% of the time. I note that apart from saying that she performs all parenting tasks, Yalenka provides few particulars apart from purchasing clothes and toiletries.
[65] It makes sense that Terence would be available to share parenting functions. Terence worked as a teacher throughout the Children’s lives; there is no evidence or suggestion that he would have worked hours outside a teacher’s usual hours or that he worked long hours; therefore, his schedule would have permitted him to be available to share parenting responsibilities.
[66] Despite Yalenka’s assertions, I find that both parties have shared parenting responsibilities and expenses. Yalenka does not have a credible argument that she could not retrain or work full time because Terence has left all parenting responsibilities to her. As will be seen, she never asserted this at the time of separation; her recent materials only provide vague and unsupported assertions in that regard like she is a “full time care provider”.
Yalenka’s Efforts to Become Employed
[67] In my view, Yalenka breached the 2011 Separation Agreement by failing to use best efforts to become employed by the review date which was supposed to be sometime in 2013. The following is a description of relevant details in support of this conclusion:
a) At the time of separation, Yalenka had made it known that she would be retraining in the field of immigration consulting, and that she would be obtaining part time employment in that field with the intention that such employment would evolve into a full time position. b) On March 8, 2011, Yalenka’s lawyer sent Terence’s lawyer a letter stating that Yalenka was retraining and that spousal support should not be reviewable for 24 months to give Yalenka “the opportunity to start her new employment later this year.” The lawyer’s letter set out specific retraining costs in the amount of $7,427; therefore, there was a specific endeavor contemplated at the time. c) In or around the summer of 2011, Yalenka received an immigration consultant certificate and began working with Diamond Global Recruitment Group (“Diamond Recruitment”) as a Logistics Specialist. She initially worked 2 days in the office beginning June 23, 2011 and in September 2011 this was increased to two days in the office and 3 days from home. At that time, she was studying for the Immigration Consultant of Canada Regulatory Council (ICCRC) examination. d) In 2012, Yalenka initiated court proceedings to change the parenting schedule. In support of that motion, she filed an affidavit dated April 24, 2012, where she indicated that “In an effort to comply with my positive obligation to become self-sufficient, I have obtained an employment position as a Logistics Specialist with Diamond Global Recruitment Group. I was not employed during the time in which the Respondent and I were negotiating our Separation Agreement. I am currently studying for the ICCRC which I intend to write on June 3, 2012.” She appended a letter from Diamond Recruitment which indicated that Yalenka was asked to provide proof of membership with ICCRC before she could return to work and that “it is our understanding that she is registered to take the membership exam on June 3, 2012. After this examination process she will be able to resume work at Diamond Global.” Yalenka did not write the ICCRC exam in June 2012 for reasons which have not been explained. e) Justice Czutrin noted in his July 20, 2012 endorsement that Yalenka sought to change the parenting schedule based on evidence she would be employed after she passes the ICCRC exam which she now intended to write in the fall. Yalenka did not take the ICCRC exam in the fall of 2012 for reasons which have not been explained. f) In an e-mail dated April 26, 2013, Yalenka then told Terence that she would be returning to work in September 2013. She persuaded him to give her vacation time she wanted with the Children so that she could travel to Colombia. He agreed. Afterwards, she still did not write the ICCRC exam or return to work. Again, there is no explanation why. g) In 2014 Terence asked for a review of spousal support. Yalenka refused to provide disclosure or attend mediation. By October 2014, Yalenka had still not taken the ICCRC exam. Justice Conway’s settlement conference endorsement says that “Ms. D. is trying to become a qualified immigration consultant…She estimates that at this rate, it will take many months to obtain these qualifications.” h) Yalenka’s November 29, 2021 affidavit explains that she changed her mind about being an immigration consultant because after she received her diploma, immigration laws had changed and she had to study from new materials to prepare for the licensing exam. She provided an e-mail from someone from the CSIC e-Academy who advised her that there had been many changes to the program since she graduated in August 2011 and that she might be required to complete two new courses in the program at the current tuition rate of $698. She was advised that she could ask for a formal review to determine exactly what courses she needed to complete for a $150 file review fee. i) Instead of requesting this review and/or taking these additional courses if necessary, she decided to abandon that pursuit altogether and pursue licensing to practice law in Ontario. Even accepting there were some changes to immigration law after she received her diploma, she was in a position to take two courses and write a few exams after studying these changes. She had a job waiting for her. Had she completed this program and begun working in 2012 or 2013 or even 2014, it is likely that she would have been able to continue to increase her income. Inexplicably, she determined that she would change course and pursue another profession altogether. j) The Law Society of Ontario evaluated her law credentials and directed that in order to become qualified, she must obtain a Master’s-in-Law and also pass 9 accreditation exams. k) In 2015, she began attending the University of Toronto in pursuit of a Master’s degree for Business International Law. l) In 2016, through the Internationally Trained Lawyer’s Program at University of Toronto, she competed for and obtained an unpaid internship at the Department of Justice Canada in their Immigration and Refugee Department. It is difficult to believe that this would not have been a full time position but there is no evidence in that regard. m) She also graduated from the Internationally Trained Lawyer’s Program in 2016. n) In 2018, she successfully obtained her Master’s-in-Law. o) As at the date of the return of the motion on March 15, 2022, Yalenka had passed 6 accreditation exams. Her November 2021 affidavit suggested that all that was left was two exams which she had to write at the end of February 2022. However, at the March 15, 2022 hearing, she advised that there was still an additional course which she had to complete by the end of March 2022 through the University of Toronto because she had failed it through the accreditation process. p) She also testified that she has been looking for articling positions and that she will be in a position to write the Bar exam in June if she has passed these three remaining exams. q) Therefore, Yalenka has taken 5 years to pass 6 accreditation exams and hopes that she has now passed the 3 which remain. When asked why she did not also work part time she said that she was focusing on completing the accreditation exams and taking care of the Children. However, as I have found, Terence shares parenting responsibilities and the Children are with him approximately 40% of the time. She also claimed she did not have the stamina because of her past cancer, but as set out above, there is no medical support for this.
[68] In my view, Yalenka had a number of different ways in which she could have become economically self-sufficient long ago including returning to the teaching profession, daycare or completing her immigration consultant training and licensing as initially planned.
[69] In particular, in 2012 Yalenka had a full time job waiting for her with Diamond Recruitment. Her decision to change course in 2015 and pursue an alternate career constitutes intentionally being unemployed.
[70] It is also unreasonable for her to have abandoned this career possibility to pursue a career as a lawyer expecting that Terence would have to continue to support her while she provided no financial support to the Children. As directed by the Court of Appeal in Drygala v. Pauli (2002), 61 O.R. (3d) 711 at paras 38-39, a parent has a duty to seek employment and support their children.
[71] I add that she has not pursued her law accreditation on anything that resembles a fulltime basis without sufficient explanation.
[72] I can appreciate that Yalenka wants to make the most of her life and her skills and pursue a career in law. I can appreciate that she may feel that in the long run, pursuing a career in law would be more lucrative than being an immigration consultant. While it is certainly Yalenka’s right to pursue her dream job, Terence should not have to indefinitely support her while she does. She could have commenced her licensing with the Law Society of Ontario when they returned to Canada in 2005, or even at the time of separation in 2010. It may have been much easier for her if she had attempted this at a time which was closer to when she graduated from law school in 1998. Instead she chose a different path neither chosen nor driven by anything Terence did. I add that had she begun law accreditation in 2010, 2011 or even 2012, she would likely have been finished long ago.
Conclusion re Spousal Support Analysis
[73] Terence has now been paying support for 11 years based at the mid-range in the amount of $1,500 based upon Yalenka having no income in circumstances where the SSAG calculation shows a recommended duration of “with child support” spousal support from 5.5 to 15 years with a mid-range of ten years, three months.
[74] At a bare minimum, even if Yalenka could establish ongoing entitlement today she should be imputed income of $26,250 (minimum wage). If that were done, the SSAG range is from $126 to $1,030. However, she would only be entitled to something within this range if she established ongoing entitlement today.
[75] In my view, any entitlement which Yalenka had to spousal support has long been extinguished with Terence’s payment of support for more than 11 years. Yalenka does not continue to suffer from any ongoing economic disadvantage arising from the marriage or its breakdown, because of roles assumed by the parties, sacrifices she made for Terence, arising from the marriage breakdown or for any other reason. Nor does she continue to suffer from any economic disadvantage on the alleged basis that she must perform the bulk of the parenting duties; I am satisfied that Terence has done his fair share in the past and that he continues to do so. Even if I accept that Terence has benefitted economically by the move to Vietnam where Yalenka says he obtained a top teaching job at an International School, there is no persuasive evidence that he continues to benefit from this. There is no evidence as to his past salary in Hanoi or anywhere, his past jobs or other qualifications. His salary at the time of separation in 2012 has only marginally increased by approximately $6,000 over a ten year period.
[76] Although Yalenka claims that termination of spousal support would send her and the Children into financial ruin, she has all the above undisclosed sources of income and support. Further, Yalenka can ultimately replace the $1,500 in monthly spousal support by obtaining a part-time job at minimum wage. Even if she has not yet passed these final accreditation exams and must write them again, many people who study to complete licensing exams have to work. She is intelligent, articulate and presents well. In my view, she should have no trouble finding some kind of employment given all her skills and degrees.
[77] Yalenka argued that even if she passes these last three courses by the end of March, she still cannot work part time afterwards. She also asserted that Terence must still continue to support her even when she obtains a paid articling position. I find these positions remarkably unreasonable.
[78] At this point, even if Yalenka does not pass her final courses by the end of March or obtain an articling position in June, then spousal support should still be stepped down and terminated in all the circumstances.
[79] Terence’s position in terms of stepping down the spousal support over time is reasonable and will give Yalenka time to adjust.
If a Material Change is Required
[80] Section 17 of the Divorce Act states that a court may make an order varying, rescinding or suspending, retroactively or prospectively a support order. Section 17(4.1) sets out factors which the Court must look to:
17(4.1) FACTORS FOR SPOUSAL SUPPORT ORDER—Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and in making the variation order, the court shall take that change into consideration.
[81] In L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775 at paras 29 to 46, Justices Abella and Rothstein set out the test for variation of a spousal support order. The change of circumstance must be material which means that if it were known at the time, it would have likely resulted in a different support order. As well “what amounts to a material change will depend on the actual circumstances of the parties at the time of the order.” (para 34).
[82] Justice Czutrin’s December 4, 2012 Order in respect of Yalenka’s Motion to Change the parenting schedule referenced the 2011 Separation Agreement in the final paragraph reads: “the remainder of the parties’ Separation Agreement dated April 8, 2011 shall remain in full force and effect.” In my view, this did not result in the spousal support provisions being determined by court order because the Court did not consider the spousal support provisions or the separation agreement in general. Indeed, in his endorsement, Justice Czutrin writes, “Neither party sought to adjust any other terms of the parenting schedule in the Separation Agreement. Neither party suggests that they wish to set aside the Separation Agreement.” In my view, the purpose of referencing the 2011 Separation Agreement was not to incorporate the spousal support provisions into a Court Order but to clarify that the remainder of the 2011 Separation Agreement remained in full force and effect as a contractual obligation.
[83] If I am wrong and this resulted in the spousal support provisions being determined by court order such that a material change is necessary, I would still step down and terminate spousal support in the same manner.
[84] Justice Czutrin’s Order was premised on Yalenka’s evidence that she was pursuing her ICCRC designation and would imminently be employed full time in that field. Her failure to write these exams as planned together with her decision to change course altogether in 2015, sent her back many years. This constituted a material change, which if known at the time, would have resulted in a different order.
[85] Pursuant to section 17 of the Divorce Act, where a material change occurs, the Court must determine what variation needs to be made in light of the change in circumstances taking into account the objectives in section 17(7). The Court is required to consider only the variation required to address the material change and should not consider the issue of spousal support de novo. Even with this more circumscribed consideration, I would still exercise my discretion to order that Yalenka’s spousal support be stepped down and terminated; her deliberate decision to change course effectively wiped-out progress she had made towards becoming self-sufficient and as such was directly related to one of the underlying purposes of a spousal support order.
Order
[86] Accordingly, this Court orders that:
a. Spousal support payable to Yalenka pursuant to the 2011 Separation Agreement shall be stepped down to $1,000 per month as of December 1, 2021, then to $500 as of June 1, 2022 and that it shall be terminated on December 1, 2022 inclusive. For clarity, this means that Terence must pay $500 on December 1, 2022 and that afterwards no further spousal support shall be paid. b. Neither party shall disparage the other or discuss this motion or decision with the Children.
[87] I encourage the parties to settle costs. If they cannot, then they may make submissions no longer than 5 pages as follows: Terence within 5 days and Yalenka within 5 days thereafter
Papageorgiou J. Released: April 1, 2022