Court File and Parties

COURT FILE NO.: FS-20-56 DATE: 2023-07-05 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Levesque-Vaillancourt v. Vaillancourt

BEFORE: The Honourable Justice Wilcox

COUNSEL: E. Chamaillard, counsel for the Applicant No one appearing for the self-represented Respondent

HEARD: June 15 and 28, 2023

Judgment

[1] The parties cohabited from November 2007, were married February 10, 2012, and separated on February 5, 2020. They had two children, Owen Robin Vaillancourt born May 25, 2010, and Zoe Celine Vaillancourt born August 1, 2012.

[2] The applicant brought an Application dated October 14, 2020, for a divorce and corollary relief. The respondent delivered an Answer and other documents providing some financial information.

[3] A final order was made on consent on October 27, 2022, with respect to the children. Among other things, it provided for week-about parenting time commencing May 12, 2022, and for the parties to cooperate with passport applications and renewals.

[4] A full settlement of the parties’ equalization obligations was reached and embodied in RSJ Ellies’ final order of September 22, 2022. It provided for the respondent to retain the matrimonial home and to make an equalization payment to the applicant. When he was subsequently unable to refinance for that, a further final order was made on consent on January 18, 2023, for the matrimonial home to be sold and the proceeds, net of specified payments, to be held in trust pending further order or agreement. With this change, the applicant calculated that the respondent then owed her an equalization payment of $26,089.61.

[5] The matrimonial home was sold on April 24, 2023. As of then, the applicant deposed, Ramsay Law held $77,287.09 in trust. Out of that, a costs award from May 15, 2023, of $1,500.00 payable by the respondent to the applicant was paid, leaving $75,787.09.

[6] That left child support and spousal support to be dealt with. By order of May 15, 2023, Kurke, J. struck the respondent’s Answer and permitted the applicant to proceed to an uncontested trial. That trial took place on June 15, and 28, 2023. The applicant filed an affidavit for an uncontested trial which was supplemented and expanded upon by her oral evidence.

[7] To deal with support, it is first necessary to determine what the parties’ respective incomes are.

[8] The applicant alleged that the respondent was trained and experienced in mining. His documents filed are consistent with that. His Notices of Assessment filed show the following incomes:

2017 $167,073.00 2018 $126,813.00 2019 $103,760.00 2020 $128,329.00

[9] His financial statement of January 18, 2021, said that his income would be $136,052.00 for the year, but that was subject to some uncertainty with respect to bonuses. The applicant used instead the same, lower, amount from 2020.

[10] The respondent failed to file any income tax documents for 2021 and following. However, the applicant deposed, he had been intentionally unemployed post-separation to avoid child support and collected employment insurance from February 2022, until resuming full-time employment in mining January 2023. The applicant noted that there are in the area various mines and contractors who deal with mines, which are potential employers. With the respondent’s training and experience, she submitted that there would be no reason for him to be unemployed, but by choice.

[11] In the period that he was not in mining, her evidence showed him woodworking, selling hay and lumber, and collecting rent. His filings confirmed this to some extent. He alleged he had an income of $18,631.66 in 2022. There is no explanation in his materials for why he was out of mining for that time. The applicant submitted that his posts on social media revealed a lifestyle consistent with a higher income. She used $50,000.00 as his annual income for 2022 but thought that it was a low estimate. I accept that number.

[12] The applicant’s evidence was that the respondent had told her and disclosed in conferences and/or motions in late 2022 and early 2023 that he was preparing to return to mining work, with Technica. The applicant has no knowledge of his income there but, because of his work experience, thought that he would earn the same as in the past. She used $125,000.00 in her calculations but, again, thought that it was a low estimate. Again, I will accept that number. The applicant’s evidence indicated that the respondent has the ability to earn income in addition to that from mining, which he had done in the past without declaring it. However, she has not sought that any such income be imputed to him other than in 2022 when he was not employed in mining.

[13] The applicant’s evidence was that, during cohabitation, the respondent was the primary income earner. She is a dental hygienist, but was only able to work part-time due to a repetitive strain injury. She worked three days per week since September, 2020 but was on sick leave from April 2022 and then maternity leave from August, 2022. She expects to return to work in February, 2024. She is in a new relationship, has been cohabiting with her new spouse since January, 2022, and is not seeking spousal support from then on.

[14] Her income was, according to her income tax documents:

2020 $33,462.00 2021 $50,247.00 2022 $33,462.00

[15] For 2023, it is estimated to be $17,440.00.

[16] The applicant allowed that, although there have been no orders for child support or spousal support and the Family Responsibility Office (FRO) was not involved, the respondent had made child support payments between February, 2020 and April, 2022 of $13,544.00.

[17] The applicant submitted support calculations. For 2020 and 2021, for when she is claiming mid-range spousal support as well as child support, she submitted DivorceMate calculations. For 2022 and 2023, for when she is not claiming spousal support, she claimed child support based on the child support guidelines, using set-off amounts for the period of week-about parenting time that commenced in May, 2022. These took into account the support that she said the respondent had paid.

[18] The applicant’s evidence was that she had paid all of the children’s section 7 expenses since separation, totaling $4,200.01. Using in the parties’ respective incomes, she calculated the respondent’s proportion of these each year, totaling $3,037.64 to and including May 2023, and that his share going forward is 88%.

[19] The applicant included a claim for the respondent to keep the children on his extended benefits for so long as they are eligible. She testified that he was not cooperating to get their daughter what she needed from a pharmacy.

[20] The Order of October 27, 2022, made on consent, required the parties to cooperate with passport applications and renewals for the children. The applicant testified that she had applied for the children’s passports but could not get them because of the respondent’s lack of cooperation.

[21] Having reviewed the information filed and heard the applicant’s oral testimony, I am satisfied that the evidence supports the following relief requested by her, and I order:

i) The Respondent, Sonny Jesse Vaillancourt (“the Respondent”), shall pay child support in the amount of $1,542.79 per month, starting July 1, 2023, for the benefit of the children, namely Owen Robin Vaillancourt, born May 25, 2010, and Zoe Celine Vaillancourt, born August 1, 2012 (collectively, “the children”).

ii) The Respondent shall be responsible for 88% of the children’s section 7 expenses on an ongoing basis. The Applicant shall provide the Respondent with a copy of the receipt for the expense, and the Respondent shall reimburse his portion of the expense to the Applicant within five (5) business days.

iii) The Respondent’s child support arrears shall be set at $42,264.98, inclusive of June 2023.

iv) Commencing July 1, 2023, the Respondent shall pay $500.00 per month towards his child support arrears, until they have been paid in full.

v) The Respondent’s retroactive section 7 expenses shall be set at $3,037.64, to be paid out of the sale proceeds of the sale of the matrimonial home, as detailed below.

vi) On or before May 1st of each year, commencing in the year following this Order, the parties shall exchange income information for the prior calendar year. They will use this information to adjust the child support payable, including both the Table Amount and the proportionate sharing of the section 7 expenses.

vii) Any change in the Table Amount and the proportionate sharing of the section 7 expenses will commence on July 1st of each year, commencing in the year following this Order.

viii) The Respondent’s spousal support arrears for the benefit of the Applicant, Emally Lise Levesque (Vaillancourt), shall be set at $18,301.00. A payment of $8,016.29 towards those arrears will be made from the sale proceeds of the matrimonial home, as detailed below, leaving a balance due and owing of $10,284.71.

ix) Ramsay Law is ordered to release all of the remaining sale proceeds of the matrimonial home, being $75,787.09, for the property municipally known as 447145 Chamberlain Road 4, in Englehart, Ontario, to the Applicant, Emally Lise Levesque (Vaillancourt), representing the following:

(a) $38,643.55, representing the Applicant’s half of the sale proceeds; (b) $26,089.61, representing the equalization payment due to the Applicant, from the Respondent; (c) $3,037.64, representing the reimbursement of the retroactive section 7 expenses to the Applicant; and (d) $8,016.29, representing the remaining balance available to be set against the Respondent’s spousal support arrears.

x) For so long as the Respondent is required to pay child support, and for so long as it is available to him, the Respondent will maintain the children as beneficiaries on his extended health insurance through his employment to cover the children’s medical/dental needs.

xi) The Applicant may make claims directly to the Respondent’s health insurer and have the health insurer issue reimbursement directly to the Applicant. If necessary, the Respondent shall sign any documents to this effect.

xii) The Applicant may apply for or renew the children’s Canadian passports, without the requirement that the Respondent sign the Application form and without his consent.

xiii) This Order bears post-judgment interest in the amount of 6% per annum effective from the date of this Order. Where there is a default in payment, the payment in default shall bear interest only from the date of default.

xiv) Unless this Order is withdrawn from the Director’s office, Family Responsibility Office, it shall be enforced by the Director and amounts owing under the Order shall be paid to the Director, who shall pay them to the person to whom they are owed.

xv) The applicant has 30 days to file costs submissions, limited to three pages, double-spaced, plus a bill of costs.

Justice Wilcox Date: July 5, 2023