Court File and Parties

Court File No.: FO49-12 Date: 2012-11-14 Ontario Court of Justice

Between:

Amanda Madecine Fillmore Applicant

— And —

Andrew Grant Fillmore Respondent

Before: Justice Lawrence J. Klein

Heard on: October 25, 2012

Endorsement released on: November 14, 2012

Counsel:

• Louis-Marc Hurtubise for the applicant(s)
• Edward Rae for the respondent(s)

Endorsement

Klein, J.:

[1] The parties separated on December 26, 2011 with the applicant remaining in the former matrimonial home with the three children of the marriage, namely: Gavin Grant Fillmore, born March 5, 2007; Jaydin Jason Fillmore, born July 4, 2009, and Ozzlynn Isabelle-Tamara Fillmore, born June 4, 2010.

[2] The respondent father works in Alberta on a 26 day in and 13 day out schedule which permits him to return to Mattawa for 11 days each 39 day period to be with the children. For 9 of those 11 days the children are with him. The remainder of the time the children are with their mother, the applicant.

[3] Shortly after separation the parties entered into an agreement dated January 24, 2012 without benefit of legal advice wherein the respondent was "to pay Amanda Fillmore $2,000.00 per month to support our home and children". He subsequently resiled from that position and takes the position that the agreement of January 24, 2012 was not a domestic contract and thus not binding upon him. I agree.

[4] A Consent Temporary Order was made without prejudice on March 8, 2012 on the issue of child support wherein the respondent father was ordered to pay support for the three children in the amount of $1,541 per month commencing April 1, 2012 and continuing on the 1st day of each month thereafter based on his 2011 income of $80,699 and pursuant to the Child Support Guidelines.

[5] The issue of spousal support was not agreed upon and was left to be determined at the return of this matter on October 25, 2012. Argument was capably made by counsel for both parties and Divorce Mate calculations pursuant to the Spousal Support Guidelines were presented during the course of the motion.

Income Determination

[6] The first issue that I must determine is the current income to be attributed to each of the parties. Counsel for the respondent father presented a pay stub for the pay period ending July 7, 2012, a period of 27 weeks. The year to date income on that pay stub was shown as $47,482. Average weekly income therefore is $1,759. The respondent advised that he took a combination of vacation and scheduled days off of approximately 52 days prior to returning to work in September 2012. The pay stub clearly shows that his YTD income has vacation pay included in the gross pay leading me to the conclusion that he was not paid for his vacation/time off. To deduct the full 52 days from the calculation of his 2012 income would not be proper as the average weekly pay calculation arrived at as of July 7, 2012 necessarily included an allowance for the 13 day "off" periods in the work schedule from January 1, 2012 to July 7, 2012. On that basis I would allow one full work on/off cycle (i.e. 39 days) to be deducted from the calculation of the respondent's prospective 2012 total income. On that basis that income should amount to $80,914 ($1,759 X 46 weeks). That amount would not require a change to the child support payable at this time given the prospective nature of the estimation of 2012 Annual Income.

[7] The Annual Income of the applicant is more difficult to calculate given her relatively recent return to the workforce. She is employed by Paramed and her most recent income information might, according to counsel for the respondent, allow me to impute annual income for the applicant for 2012 in the amount of $25,300 as being the most recent or up-to-date income information available to the court. Counsel for the respondent produced a Divorce Mate calculation for spousal support pursuant to the Spousal Support Guidelines using imputed income of $78,854 for the respondent and $25,387 for the applicant. It yielded support scenarios that called for no spousal support being ordered. On the basis that the court might not rely on the imputed income calculations for 2012, counsel for the respondent produced a Divorce Mate calculation based on actual annual income for 2011 being $80,699 for the respondent and $14,799 for the applicant. This produced a scenario at the high end of the spousal support range of $189 per month under the Spousal Support Advisory Guidelines.

[8] Despite the able argument of counsel for both parties and the rather tortured calculus employed to project 2012 income totals, the most reliable income figures would be the 2011 actuals, being $80,699 for the respondent and $14,799 for the applicant.

Spousal Support Guidelines

[9] The Spousal Support Guidelines are a useful tool for the courts in establishing spousal support orders especially when used in Temporary Support Orders. The guidelines are a distillation of existing case law and are similar to counsel submissions. They provide a range to consider in appellate review and the court should provide reasons for not employing them.

[10] Under Section 30 of the Family Law Act every spouse has an obligation to support the other spouse in accordance with need, to the extent that he or she is capable of doing so. This is consistent with concept of marriage as a partnership. The guidelines do not speak to the issue of eligibility for support but merely offer a range to consider when awarding support.

Spousal Support Award

[11] Counsel for the respondent in commenting on the second of the two Divorce Mate calculations urged that I use the mid-range figure ($0) rather than the high-range figure ($189). I cannot accept that argument as, at separation, the applicant was being supported by the respondent. She continues to require support and the respondent has some ability to pay the same. I am satisfied that an amount of spousal support in the mid-high range is appropriate. The respondent shall pay spousal support to the applicant in the amount of $100 per month.

Retroactivity

[12] The issue of retroactivity of spousal support should be decided to accord with the timeliness of payment of child support. On March 8, 2012 the parties were able to agree on the issues of custody, access and child support but were not in accord on the issue of spousal support. Further financial disclosure was required prior to argument before the court. That disclosure is complete and the issue was fully argued before me. As the issue of spousal support – both entitlement and quantum – was alive on March 8th, the respondent must have been aware of his potential liability therefore on that earlier date. On that basis, I have no hesitation in ordering that spousal support should commence on April 2, 2012 thus answering the question of retroactivity in the affirmative.

Adjournment

[13] This matter is further adjourned to November 29, 2012.

Released: November 14, 2012

Signed: "Justice Lawrence J. Klein"