COURT FILE NO.: FC-21-1912
DATE: 2022/10/13
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Lisabet Parent, Applicant
AND:
Benoit Parent, Respondent
BEFORE: Justice Ian Carter
COUNSEL: David Howard, for the Applicant
Respondent, Self-Represented
HEARD: August 4, 2022, further written submissions provided on September 14, 2022
ENDORSEMENT
[1] This matter proceeded as an uncontested trial on August 4, 2022. At that time, I reserved my decision. In an endorsement on August 31, 2022 I asked the Applicant to clarify a number of issues that arose based on my review of the evidentiary record. A supplemental affidavit dated September 14, 2022 was provided in response.
[2] The parties were married on September 24, 2005 and separated on June 1, 2019. There are three children of the marriage: Sophia Parent (July 6, 2007), Violette Parent (December 31, 2010) and Thomas Parent (December 6, 2012).
[3] The Respondent was served with a Form 8 Application, Form 35.1 Affidavit with respect to decision-making responsibility, parenting time and contact, a Form 13.1 Financial Statement, Blank Answer, Blank Affidavit, Blank Financial Statement and Respondent’s MIP notice by special service on December 9, 2021. The Respondent did not file an answer and has not participated in these proceedings since.
[4] The Applicant seeks orders related to the following:
a. Sole decision-making authority and primary residence for three children of the marriage;
b. Child support, retroactive to the date of separation;
c. Section 7 child support for 2 children with disabilities;
d. Spousal support, retroactive to the date of separation;
e. Security for support and medical/dental benefits
f. Division of the Respondent’s pension, plus interest; and
g. Divorce
[5] I will address each in turn.
Decision-Making Authority and Primary Residence
[6] The uncontested evidence before me is that since separation the children have been residing primarily with the Applicant and have had sporadic parenting time with the Respondent. Although the Applicant is happy to accommodate the Respondent, he has not been requesting regular parenting time and last saw the children in September, 2021.
[7] Thomas is severely disabled and requires a life-support machine while sleeping. The Respondent lives in a one bedroom apartment. Thomas told the Applicant that the Respondent refuses to plug in the life-support machine since the Respondent cannot sleep due to the noise it makes.
[8] Throughout the relationship, the Respondent took on minimal responsibilities towards caring for the children. All child-related and household responsibilities were solely taken on by the Applicant. Two of the children have disabilities (Thomas and Sophia). Important decisions regarding their healthcare must be made promptly, particularly in the case of Thomas.
[9] In light of the foregoing, it would be in the best interests of the children that the Applicant have sole decision-making authority for the children, that their primary residence shall continue to be with the Applicant and that the Respondent’s parenting time shall be at the Applicant’s discretion. When exercising her discretion, the Applicant shall keep the best interests of the children in mind.
Child Support
[10] Although the Respondent did not file an answer and has not participated in these proceedings, he has provided the Applicant with some financial information. A copy of the Respondent’s T4 for 2021 indicates that his income for that year was $78,364. Based on the Federal Child Support Guidelines, SOR/97-175, as am, the amount of child support owing from the Respondent to the Applicant would be $1,553 per month for the three children. Payments shall be deemed to have commenced August 1, 2022 and will be ongoing.
Retroactive Child Support
[11] The Applicant also seeks retroactive child support for the time period of August 1, 2019 to July 1, 2022.
[12] A copy of the Respondent’s T4 for 2020 indicates an income of $66,196. Based on a pay stub from September 2019. the Applicant estimates his income for 2019 was approximately $66,000. A chart prepared by counsel for the Applicant was attached to the affidavit of the Applicant dated April 4, 2022. In light of concerns raised in my endorsement of August 31, 2022 that $1,337 was erroneously listed as the obligation for 2020, an updated chart was provided. The obligation should have been $1,323 per month.
[13] The chart also shows the amounts that the Respondent has paid towards child support. Between October 2019 and July 2022, the Respondent made payments to the Applicant of $27,539. Based on the Guidelines, the Respondent should have paid $51,998. According to the Applicant, the amount of retroactive child support owing is therefore $24,459.
[14] There are three situations in which it may be appropriate for a court to order a retroactive award, one of which is where, as here, the status quo does not involve payment of child support. In this situation, courts may order retroactive support in appropriate circumstances pursuant to their jurisdiction to make original support awards. In exercising their discretion to order retroactive support, courts must balance the payor’s interest in certainty with the need for fairness and flexibility. In doing so, a court should consider the reasonableness of the delay in seeking support, the conduct of the payor, the circumstances of the child, and the hardship occasioned by a retroactive award. The award should generally be retroactive to the date when effective notice was given to the payor (S.(D.B.) v. G.(S.R.), 2006 SCC 37).
[15] On September 17, 2019, the Respondent was put on notice by the Applicant’s then lawyer that child support would be owing in the amount of $1,323 per month. Despite this, the Respondent chose to pay a smaller amount and only sporadically. The Applicant has been raising three children, two of whom are disabled, essentially on her own. She cannot be faulted for bringing an application for child support earlier. The circumstances of the children strongly suggest that retroactive support be paid.
[16] Retroactive support should be ordered from September 2019 to July 1, 2022. The amount of retroactive child support owing is therefore $23,126. Any hardship to the Respondent that may arise from the order can be mitigated by a judgment which allows for payment of an award in instalments (Yovcheva v. Hristov, 2019 ONSC 1007 at para. 172). The Respondent shall make payments towards the arrears in the amount of $500 per month.
Section 7 Expenses
[17] The Applicant seeks an order that the parties shall pay special and extraordinary expenses for the children proportionate to their incomes. Based on the Respondent’s annual income of $78,364, the Respondent shall be responsible for 81% and based on the Applicant’s annual income of $12,684 (as set out in the Applicant’s Financial Statement sworn July 29, 2022; according to her affidavit she received $1,057 per month from Ontario Works) shall be responsible for 19% of these expenses.
[18] No present or prior s. 7 expenses were detailed with respect to Sophia and Violette. However, the evidence establishes that the medical expenses for Thomas are considerable given the severity of his disability.
[19] Thomas receives ODSP benefits in the amount of $775 per month. These funds are used to help pay for the costs of private nursing that he requires. The nurses generally stay at the Applicant’s home for overnight visits (8-10 hours at a time, at $35-40 per hour). Five nights of nursing per week are covered by the government. The Applicant has to pay privately for two nights per week. Since separation, the Applicant’s father has paid hundreds of dollars per week on average to help cover the costs for private nursing. The Applicant’s parents also buy medical/health-related items for Thomas from time to time.
[20] In the initial motion, the Applicant was seeking contributions from the Respondent for the net costs of Thomas' medical expenses that are not covered by insurance or other benefits, in particular: diapers, catheters, lubricant tubes, diabetes-related supplies, feeding supplies, dressings, bandages, bi-pap masks, and prescriptions. In the endorsement of August 31, 2022, I raised a concern about the ability of the Family Responsibility Office to enforce such an order if no monthly amount was set out. Given the limited co-operation of the Respondent to date this could result in Thomas not receiving the appropriate financial support he needs. Furthermore, an expenses breakdown would allow the Court to properly estimate the costs and to make an order accordingly, as in Giles v. Villeneuve, [1998] O.J. No. 2902.
[21] The Applicant responded to the concern raised in the endorsement by way of affidavit dated September 14, 2022. In the affidavit she explained the difficulty in ascertaining an exact amount. Nevertheless, the Applicant did provide a breakdown of the various costs along with supporting documentation. A conservative estimate of a monthly budget for Thomas' personal and healthcare expenses (not including private nursing costs covered by the Applicant’s father) amounts to $1,030. The Respondent’s share of the expenses would be $834.30. In her affidavit, the Applicant recognizes that the Respondent also needs money for himself to survive, and that although the budget is likely an underestimate, she knows the Respondent only earns so much. The amount may need to be capped based on his net disposable income. In light of the fact that I will be making orders for child support, retroactive child support (to be paid in monthly installments) and spousal support (to be discussed below), a reasonable monthly amount would be $550.
Spousal Support
[22] The Applicant is seeking spousal support on both a compensatory and needs basis.
[23] Prior to meeting the Respondent, the Applicant worked as an assistant manager at a clothing store. After Sophia's birth in 2007, the Respondent suggested that she become a stay-at-home mother and take care of the children and the household. Once Thomas was born, this became an even more pressing issue. While the Respondent worked, the Applicant took care of the household chores, such as cleaning, doing the laundry and meal preparation. She was also responsible for all childbearing duties and all care associated with Thomas.
[24] As the Respondent worked in the Navy, he was absent from the house for prolonged periods of time. It was his expectation that the Applicant was a wife/mother first and employment that she obtained would be secondary to any domestic duties. Since Thomas' birth, she has only been employed on two occasions. In 2013, she worked at Target for four months. In 2018, she was employed at the Russell Legion as a bartender. She is currently unemployed and cares for Thomas full-time. Given Thomas' health condition, she is unable to work indefinitely.
[25] According to her most recent financial statement, the Applicant’s monthly expenses exceed her monthly income.
[26] The Applicant has established that spousal support should be made on both a compensatory and needs basis.
[27] In her affidavit of April 6, 2022, the Applicant indicated she was seeking spousal support in the amount of $100 per month, below the low range as set out in the Spousal Support Advisory Guidelines. The “modest” amount was chosen on the basis that child support was a priority. In a subsequent affidavit, the Applicant stated that she now wished to receive support in the mid-range. In a draft order provided this was calculated to be $354 per month.
[28] Given that the Applicant initially requested $100 per month and that the mid-range amount will drastically reduce the Respondent’s net disposable income, I will order spousal support in the amount of $169 per month.
Retroactive Spousal Support
[29] The Applicant makes a further claim for spousal support retroactive to August 1, 2019 in the amount of $144 per month. Notice was provided to the Respondent by way of a letter from counsel in September 2019 that the Applicant would be seeking spousal support in the amount of $350 per month for a period of seven years.
[30] Similar considerations to those set out in the context of child support are also relevant to deciding the suitability of a “retroactive” award of spousal support. Specifically, these factors are the needs of the recipient, the conduct of the payor, the reason for the delay in seeking support and any hardship the retroactive award may occasion on the payor spouse. However, in spousal support cases, these factors must be considered and weighed in light of the different legal principles and objectives that underpin spousal as compared with child support (Kerr v. Baranow, 2011 SCC 10 at para. 207).
[31] There are two underlying interests at stake with respect to the timing of a claim. The first relates to the certainty of the payor’s legal obligations; the possibility of an order that reaches back into the past makes it more difficult to plan one’s affairs and a sizeable “retroactive” award for which the payor did not plan may impose financial hardship. The second concerns placing proper incentives on the applicant to proceed with his or her claims promptly. The date of the initiation of proceedings for spousal support is the “usual commencement date”, absent a reason not to make the order effective as of that date (Kerr at paras. 209 – 211).
[32] Unlike with respect to child support, there would have been some uncertainty in September 2019 as to whether the Applicant would be entitled to spousal support, much less the amount owing. The Respondent could not have arranged his finances based on the mere assertion in a lawyer’s letter and in the absence of proceedings having been commenced.
[33] As a result, spousal support in the amount of $169 per month is payable by the Respondent commencing from the date on which these proceedings were commenced.
Medical and Dental Benefits/Life Insurance
[34] The Applicant seeks orders that the Respondent shall keep the Applicant and the children on his benefits through his employer for as long as they are eligible and that the Respondent shall designate the Applicant as the beneficiary of a life insurance policy having a minimum face value of
$180,000. The Applicant has confirmed in her affidavit of September 14, 2022 that the Respondent would have a life insurance policy through his employment with the Canadian Forces. I am prepared to make the orders the Applicant seeks.
Equalization/Pension
[35] In the Confirmation of Motion, the Applicant seeks a division of the Respondent’s pension, plus interest. Although a Net Family Property statement was filed, I was not asked to undertake an equalization analysis. In essence, the Applicant is asking that I simply divide the value of the Respondent’s pension in half.
[36] In order to do so I would need to know the amount of the equalization payment the Respondent is required to make. This can only be calculated once I know the value of the pension. As I have not been provided with an expert report, I cannot say what the value of the pension is. Furthermore, I have only been provided with a letter that gives an approximate maximum transferrable value (one that is premised on the wrong date of separation).
[37] If the Applicant wishes to have a Pension Benefits Division Act, S.C. 1992, c. 46, Sch. II, rollover of the Respondent’s pension to satisfy an equalization claim, she can provide an expert report that gives the value of the pension and a specific maximum transferrable value. These materials, and any others the Applicant wishes to file, can be provided to the trial coordinator to be brought to my attention.
Divorce
[38] Upon review of the materials, the divorce is granted. Counsel for the Applicant is to provide a draft order for my signature.
Costs
[39] Costs will be awarded to the Applicant on a substantial indemnity basis in the amount of
$2,869.69 based on the bill of costs submitted.
Carter J.
Date: October 13, 2022
COURT FILE NO.: FC-21-1912
DATE: 2022/10/13
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Lisabet Parent, Applicant
AND:
Benoit Parent, Respondent
BEFORE: Justice Ian Carter
COUNSEL: David Howard, for the Applicant
Respondent, Self-Represented
ENDORSEMENT
Carter J.
Released: October 13, 2022