ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 2907/11
DATE: 2012-01-05
B E T W E E N:
Rosanne Christine Colosimo
Kenneth W. Garland, for the Applicant
Applicant
- and -
Robert Richard Colosimo
Roseanne Trivieri, for the Respondent
Respondent
HEARD: December 21 & 22, 2011
The Honourable Justice C. A. Tucker
ENDORSEMENT
Issues
[ 1 ] The issues are:
(I) What amount, if any, should the respondent pay to the applicant for spousal support?
(II) What amount, if any, should the respondent pay to the applicant for child support?
(III) Should the parties’ jointly owned company require both signatures of the parties on any cheques or expenses?
(IV) Should the respondent be ordered to pay the property taxes up to date?
(V) Should the matrimonial home be ordered sold?
(VI) Should an order go splitting the jointly owned assets of the couple in the matrimonial home?
(VII) Should the applicant be ordered to get a medical report as to her current state of health and how it may affect her employability?
Background
[ 2 ] The parties “Rosanne” and “Robert” – and I will use their first names at times to be clear as to the person I am speaking about – began to live together in 1993, married in 1995, and separated in September 2010. Physical separation did not occur until March 2011. They have two children; Troy, aged 13, and Taylor, aged 11. Troy has resided with his father since the summer and Taylor continues to live with her mother in the matrimonial home. The parties are 41 and 43 years of age. Robert works at Securitas Canada Limited and earned $68,000 last year. Rosanne worked prior to the birth of their first child for several years. She then returned to work a few months prior to separation for four months. She is presently, as at November, working on her diploma in early childhood education attending fulltime classes on a daily basis and hoping to graduate by the end of August 2012. She has previously begun courses, some of which will provide credits for her present course.
[ 3 ] It is the position of Robert that Rosanne should be working to support herself and her children, and asks the court to attribute or impute an income to her for both child and spousal support purposes of $20,000.
[ 4 ] It is the position of Rosanne that she is at school to attain the ability to become self-supporting. Rosanne also points out that for tax purposes the company jointly owned and operated by the couple “paid” a management salary to her in the range of $30,000 per year and as such Robert should have a further $15,000 added to his base salary from Securitas to correctly reflect his real income. Robert’s accountant points out that no amounts were actually paid from the company.
[ 5 ] It is the position of Robert that spousal support should be paid on the low end of the Spousal Support Advisory Guidelines (“SSAG”) given his financial obligations, and it is Rosanne’s position that he should pay on the high end because he is her only source of funds and she requires such to maintain herself, her daughter, and the home. No expenses were listed on her financial statement but some expenses were mentioned in the affidavit filed in support of the motion.
[ 6 ] Up until September Robert had been making payments for the expenses of the home including the mortgage, utilities, insurance, together with approximately $822 as a contribution to child and spousal support. The applicant seeks support in the high range with the imputed income. The respondent seeks the low range with income imputed to the applicant in the amount of $20,000. Child support is also argued by both in terms of imputed incomes.
[ 7 ] The respondent seeks to have the matrimonial home sold, which he suggests was always the plan. The applicant resists that plan as it provides a home for their daughter and herself, and she presently has no funds and no alternative accommodation. She says the respondent’s request is without urgency as he is presently “renting” a townhouse from his mother, and the parties, through the company, have four other properties which could be liquidated to provide revenue. Further, she points out that she requested exclusive possession of the home and that matter can, and will, only be dealt with at a trial of this matter, not on an interim basis. She also points out that if the claim is under the FLA it could not be dealt with on an interim basis. No claim has been asserted under the Partition Act . There are also outstanding issues of claimed exclusions resulting in an inability to settle equalization which may or may not result in Rosanne being able to purchase the matrimonial home.
[ 8 ] Robert says the plan was always to sell the house and that Rosanne never stated a desire to remain in the home, and that she could move to live with her parents. There is substantial equity in the home which would allow both parties to move on with their lives. He proposes that he would be required to move back into the home if it is not sold to allow his mother the opportunity to sell the townhouse he is presently occupying. He does not wish to sell any of the rental homes owned by their company as he wishes to acquire Rosanne’s interest in the same. Rosanne points out that this request may further skew the equalization perhaps resulting in her entitlement to more than one-half share eventually in the matrimonial home proceeds. She resists the sale now on the basis that she does not have adequate disclosure and valuations to complete equalization and impute income to either party at this stage.
[ 9 ] I will not order the sale of the matrimonial home. In my view, the request is premature. There was a request by the applicant for exclusive possession, and equalization issues are in their infancy. The couple has other assets which could be liquidated to resolve immediate financial issues without depriving the applicant and the daughter of their home at this time.
[ 10 ] It is clear from Kereluk v. Kereluk, 2004 34595 (ON SC) , [2004] O.J. No. 4337 (Ont. S.C.J.) that the court has no jurisdiction under s.10 of the FLA “to order partition and sale of the matrimonial home prior to trial on an interlocutory application”. (See page 5, para. 20) No claim was made under the Partition Act in this case, but at this point I would not exercise my discretion under that Act to order a sale for the reasons noted above, even if it had been so pled.
[ 11 ] In terms of child and spousal support, I acknowledge that the applicant is presently in school and will be for some months. Her income, therefore, is zero. Although the court recognizes that she has a long term obligation to become self-supportive, I also recognize that although she is young, she is also unskilled and has been out of the workplace for over a decade (with the exception of four months) and that within a year of separation she has made plans to try to become self-supporting. I will not impute income to Robert from the company without further financial disclosure. Therefore, for child and spousal support purposes at this time I find his income to be $68,000 and hers to be zero. Child support, therefore, shall be paid by the respondent to the applicant for one child in the amount of $629 per month commencing September 1, 2011. Spousal support will be in the midrange in the amount of $1,277 per month commencing September 1, 2011. I recognize that there may be issues of accounting between the parties given that payments of $822 per month have been made to the applicant since September and other payments have also been made, but the parties can make the necessary adjustments once provided with the schedule of payments, most of which is in the affidavit material. There is no factor which I find to push the amount down to the low range or to the high range of the guidelines.
[ 12 ] Rosanne seeks joint signing authority on the couple’s bank account to ensure she has a say on expenditures. Robert resists that, saying that he has always been the one to operate the company and her actions so far have left him concerned about whether she would deal with such matters in an expeditious way.
[ 13 ] The parties jointly own the company. Notwithstanding Robert’s “concerns”, Rosanne should be given joint signing authority forthwith as she is entitled to such as a half owner of the company. Accordingly, the undertaking shall be amended as to 1(c) to state “after written approval of all other expenditures and both parties’ signatures shall be required on all such cheques”.
[ 14 ] The property tax issue is this: The applicant wants the respondent to bring them current as he has the income. The respondent wants the property sold reducing that liability for both the parties. The respondent is already maintaining another household resulting in a reduced cash flow (by $1,200 per month) together with paying for one child without the financial assistance of the wife. In reality, the line of credit is being paid by their jointly owned company, so she is contributing to that payment equally. The only payment made by him is the mortgage which is approximately $400 per month.
[ 15 ] The property taxes have been paid to June 2011. There is nothing urgent requiring the payment to be made at the present time, and I note that Robert made the payments until June. I would defer this request at the present time pending further disclosure without prejudice for the applicant to renew her request at a later point.
[ 16 ] The other issues, being the matrimonial home assets, the dog, and the medical report, I will not deal with today. I see no present need for a medical report; I will not deal with animal access and specific items; and an inventory must be provided together with valuations to deal with the contents of the home before the court can make a determination.
Costs
[ 17 ] If the parties are unable to agree upon costs, I may be spoken to.
Tucker, J.
Released: January 5, 2012
COURT FILE NO.: 2907/11
DATE: 2012-01-05
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Rosanne Christine Colosimo Applicant - and – Robert Richard Colosimo Respondent ENDORSEMENT Tucker, J.
Released: January 5, 2012