2017 ONSC 2939, 2017 ONSC 2939

CITATION : Rupert v. Rupert, 2017 ONSC 2939 COURT FILE NO.: 5173/16 DATE: 20170512 SUPERIOR COURT OF JUSTICE - ONTARIO RE: CHRISTINE RUPERT, Applicant BRADLEY RUPERT, Respondent BEFORE: EMERY J. COUNSEL: Glenna G. McClelland, for the Applicant Neil J. Arnold, for the Respondent HEARD: April 21, 2017 in Owen Sound ENDORSEMENT [ 1 ] There were three motions before me on April 21, 2017: 1.

The motion of the respondent father, Bradley Rupert, for an order to request the involvement of the Office of the Children’s Lawyer with respect to custody and access issues relating to the child Sarah Elizabeth Rupert, born June 1, 2005; 2. Mr. Rupert’s motion to determine where Sarah will primarily reside (also known as the “custody motion”) pending trial; and 3. The motion of the applicant mother, Christine Rupert for interim and retroactive spousal and child support, and for an order to facilitate counselling for Sarah. [ 2 ] On consent, Mr.

Rupert’s motion to determine Sarah’s primary residence had been adjourned on October 21, 2016 pending receipt of an assessment by the London Family Court Clinic. Ms. Rupert’s motion for spousal support and child support was also adjourned to be heard after the motion with respect to Sarah’s primary residence was determined. [ 3 ] The report of the London Family Court Clinic dated February 28, 2017 was before the court on April 21, 2017 as an exhibit to Ms. Rupert’s further affidavit sworn on April 13, 2017.

Upon reviewing the assessment report, it appeared that Sarah’s views and preferences about what custody and access arrangements would be appropriate to her had not been addressed. For reasons given in court on April 21, 2017, the motion to determine Sarah’s primary residence was adjourned again to enable the London Family Court Clinic to inquire into Sarah’s views and preferences, to the extent those views and preferences can be reasonably ascertained.

The motion was adjourned to no fixed date, returnable on 7 days’ notice after the supplementary report of the London Family Court Clinic containing those views and preferences has been filed. [ 4 ] The motion brought by Mr. Rupert for an order seeking the involvement of the Office of the Children’s Lawyer was adjourned to the next date his motion to determine Sarah’s primary residence is before the court. I remain seized of both motions. [ 5 ] I heard submissions on Ms. Rupert’s motion for support and for an order to obtain counselling for Sarah over the balance of the time allocated for the three motions.

This is my decision on those issues. Counselling [ 6 ] Ms. Rupert seeks an order in her notice of motion dated July 26, 2016 that Mr. Rupert consent to counselling for Sarah.

[ 7 ] Ms. Rupert has deposed in her affidavit dated April 13, 2017 that she has put her name on the list for parenting programs offered by Keystone Child, Youth and Family Services. Mr. Rupert stated in his affidavit dated April 18, 2017 that Keystone does not become involved while matters are still before the court. It is for this reason that he brought his motion to request an order inviting the involvement of the Office of the Children’s Lawyer. [ 8 ] In the course of adjourning the motion seeking the involvement of the OCL and on hearing submissions on Ms.

Rupert’s motion for counselling, it appeared to me that neither counsel objected to Keystone as a counselling service for Sarah. I heard submissions that Keystone requires the consent of both parents to provide the counselling it offers to children, youth and families. I heard submissions from Mr. Arnold that a finding has never been made that Mr. Rupert objected to counselling. Mr. Arnold indicated that Mr.

Rupert would give his consent to counselling, including counselling services that Keystone would provide, as long as no negative inference could be made that he has withheld his consent in the past . [ 9 ] It is therefore ordered that Bradley Rupert shall consent to enrolling Sarah for counselling at Keystone Child, Youth and Family Services, and that he complete all intake forms there for that counselling. No inference shall be drawn from making this order that Mr. Rupert has ever objected to, or improperly withheld his consent that Sarah receive this counselling.

Child Support [ 10 ] Sarah is one of two children of the marriage. Her sister, Samantha Anne Marie Rupert was born on January 21, 2000 (now age 17). Samantha has resided with her father since the parties separated in 2014 and does not see her mother. [ 11 ] Ms. Rupert seeks set off child support for Sarah from Mr. Rupert as Sarah lives part time with each of them, and Samantha resides exclusively with Mr. Rupert. Mr. Rupert would pay set off support to Ms. Rupert because he has a higher annual income. Mr.

Rupert’s income between 2013 and 2015 from his employment by Ontario Power Generation at the Bruce Power site has been: 1. 2013 - $147,229, less $1,050 union dues 2. 2014 - $138,979, less $1,080 union dues 3. 2015 - $131,159, less $1,109 union dues. [ 12 ] Mr. Rupert was off work in 2015 for several months because of stress. He was not off work in 2016. Mr. Rupert’s 2016 income was $133,831, less $1,080 for union dues. [ 13 ] Ms. Rupert’s income between 2013 and 2015 has been: 1. 2013 - $57,165 2. 2014 - $61,846 3. 2015 - $66,235 [ 14 ] At the motion, the court was informed that Ms.

Rupert’s income for 2016 totalled $74,000. [ 15 ] Mr. Rupert has been paying Ms. Rupert interim child support on a voluntary basis in the amount of $250 a month since 2014. He has also been contributing 65% of Sarah’s extraordinary expenses under

section 7 of the Child Support Guidelines . [ 16 ] Ms. Rupert proposes that the

section 7 expenses for each daughter be capped at $1,000 a year per child. [ 17 ] Mr. Rupert provided the decision of the Court of Appeal in Vanos v. Vanos , 2010 ONCA 876 as authority for the court to base support awards on current annual incomes, rather than on the income of any party for past years.

In paragraph 13 of Vanos , the court explained that: [13] In our view, where the amount of child support that should have been paid in a prior year is under consideration, the payor’s actual income for that year is the amount that should be used to calculate support for the prior period, so long as the payor’s actual income for the prior period is known. [ 18 ] I am therefore of the view that child support for 2016 should be based on Mr. Rupert’s income for that year of $132,751, net of union dues, and Ms. Rupert’s income of $74,000 which is now known.

As Sarah currently spends greater than 40% of her time with each parent, the amount Mr. Rupert is to pay in child support for Sarah each month is subject to set off pursuant to

section 9 of the Child Support Guidelines . The amount payable for Sarah’s support in turn is set off by the amount that Ms. Rupert shall pay Mr. Rupert for Samantha under the circumstances. The net amount Mr. Rupert is therefore ordered to pay Ms. Rupert for child support on a temporary basis is therefore $43 a month, which was calculated on the 2016 income of each party using DivorceMate software. [ 19 ] Pursuant to the agreement between the parties, Mr. Rupert and Ms. Rupert shall contribute 65% and 35% respectively to the extraordinary expenses of each child.

Samantha now plays baseball at a relatively advanced level for her age group, and Sarah enjoys riding horses and equestrian related activities. The pursuits of each child engage extraordinary expenses for that child to enjoy her activities. Those expenses are capped at a maximum of $1,000 per child for each of the years 2016, 2017 and, if necessary, 2018, subject to further order. Spousal Support [ 20 ] According to the evidence filed on the motion, Ms. Rupert worked for Community Living in Norfolk County for 18 years.

She earned approximately $43,000 a year before the family moved to Bruce County to benefit Mr. Rupert’s career. [21] Ms. Rupert resumed working as a branch manager for VPI Inc. in Walkerton, where she has now worked for over 5 years. Theincome she has disclosed since 2013 is in excess of the amount she earned before the move from Norfolk County. The evidence on themotion is uncertain about what gap, if any, was caused by the move to Walkerton. No expert evidence was filed about any present dayvalue adjustments the court should apply to compare the income Ms.

Rupert earned before the move to the annual salary she earns now. [22] I also find there is no evidence of any discrepancy in the living environment between the home Ms. Rupert makes with hernew life partner on his farm, and the home Mr. Rupert makes for one or both daughters. Therefore, there is no evidence for me toconsider any submission on the need for support to equalize living conditions for Sarah under Contino v. Leonelli-Contino, (Ont. C.A.). [23] I find there is insufficient evidence to determine whether the spousal support should be awarded for compensatory reasons, oron the basis of need.

For the same reason, I am not in a position to determine whether spousal support should be ordered retroactive to acertain date. The spousal support Ms. Rupert seeks in each respect is better left as an issue for trial. Conclusion [24] The motion of Ms. Rupert is granted to the extent provided by this endorsement, and a temporary order shall issue that: 1. Mr. Rupert shall give his consent for Keystone to provide counselling services to Sarah; 2. Mr. Rupert shall pay child support on a set off basis for Sarah in the amount of $43 a month; 3.

The parties shall each maintain both Samantha and Sara on his or her extended health and medical benefit plan for so long as thatchild is eligible for coverage and that coverage is available to him or her through his or her employment; 4. Mr. Rupert shall maintain life insurance coverage for Ms. Rupert and for Sarah for so long as he has an obligation to support Sarahand that life insurance is available to him through his employment; 5. The parties shall pay extraordinary expenses under

section 7 of the Child Support Guidelines to a maximum of $1,000 per child eachyear net of fundraising for 2016, 2017 and, if necessary, 2018 based on contributions of 65% from Mr. Rupert and 35% from Ms. Rupert;and 6. The claim of Ms. Rupert for spousal support is dismissed, without prejudice to any finding of entitlement, quantum, or retroactivity attrial. [25] The costs of this motion and the attendance to adjourn the other two motions on April 21, 2017 are reserved to the date I hearthe motion for the determination of Sarah’s primary residence. ___________________________ Emery J DATE: May 12, 2017 CITATION: Rupert v. Rupert, 2017 ONSC 2939 COURT FILE NO.: 5173/16 DATE: 20170512

SUPERIOR COURT OF JUSTICE - ONTARIO RE: RUPERT v. RUPERT BEFORE: EMERY J. COUNSEL: Glenna G. McClelland, for the Applicant Neil J. Arnold, for the Respondent ENDORSEMENT EMERY J DATE: May 12, 2017