ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC193-11
DATE: 2012-03-27

BETWEEN:

Catharine Melissa Theresa Arnott Applicant – and – Trevor Wes Arnott Respondent

Kirsten Hughes, for the Applicant
Marcel R. Banasinski, for the Respondent

HEARD: January 24 th , 25 th , 26 th , 27 th , 2012

THE HONOURABLE MADAM JUSTICE M. J. MCLAREN

Overview

1A trial in this matter was held during four days in January 2012. At the commencement of trial, counsel took a half day and were able to resolve several issues. Minutes of settlement were filed that covered custody, many terms of access, life insurance coverage, and equalization of property. The following issues were not resolved:

• Determination of both parties’ income

• Spousal Support

• Child support

• Disposition of the matrimonial home and some minor payments on the line of credit

• Two remaining terms of access being the Christmas break and Professional Activity Days

2In addition to the parties themselves, the applicant’s brother, David Doleman, testified.

Background

Background

3The parties were married on November 19 th , 2003 and they lived together for a few years before that. They separated on January 11 th , 2011. It was a relationship of between 10 and 11 years. They are two children of the marriage, namely, Maddison Emily Melissa Arnott, born April 14rh, 2000, and Hannah Victoria Arnott, born May 20 th , 2011. At the date of separation the applicant was 35 years old and the respondent was 36 years old. The matrimonial home is at 23 Sylvia Crescent in Hamilton and the applicant resides there with the two children. The respondent is currently working on a project at Bruce A Restart Plant in Tiverton, Ontario. He works there as a millwright supervisor through Comstock Canada Ltd. He currently resides in an apartment in Teeswater. The applicant is not presently in the paid workforce.

Case Law

Case Law

4I was provided the following cases by the applicant:

Bogrstrom v Borgstrom , [2004] B.C.J. No. 928 (B.C.S.C.)

Hughes v Brooks , [2008] O.J. No. 5426 (Ont. C.J.)

Ralph v Ralph , [2001] N.J. No. 238 (Nfld. S.C.)

Roy v Roy , [2002] O.J. No. 5088 (Ont. S.C.)

Vanos v Vanos , [2010] ONCA 876

Borgstrom v Borgstrom (British Columbia Superior Court) was provided as an example where compensatory support was awarded for contributions to the marriage and for the economic disadvantage of the wife having foregone a career to devote herself to raising 4 children and homemaking. The husband was able to pursue a successful career as a pilot.

Hughes v Brooks (Ontario Court of Justice) was provided as an example of a case where the payor received a non-taxable per diem rate in addition to his salary as a pilot. The court included the per diem rate as income for support purposes but without a gross up for tax purposes.

Ralph v Ralph (Newfoundland Supreme Court Trial Division) was provided as another example of where the court included the payor’s per diem rate as income for support purposes. The payor was director of an airport authority and had to do an inordinate amount of driving. The court did not gross up the amount for income tax however.

Roy v Roy (Ontario Superior Court of Justice) was provided as an example of a case where the court did not order the house sold on a motion. The wife carried on business in the house and the court was aware that at trial she was seeking lump sum spousal support and may end up obtaining the house by the end of the trial.

Vanos v Vanos (Ontario Court of Appeal) was provided as an example of how to calculate retroactive support when the actual income for the prior period is known. The court held that the actual income for that year should be used when known.

I received the following cases from the respondent:

Coghill v Coghill , 2006 28734 (ON SC) , 2006 CarswellOnt 5069 (Ont. S.C.), 30 R.F.L. (6 th ) 398

Cole v Freiwald , 2011 CarswellOnt 8452, 2011 ONCJ 395

Onogi v Elguindi , 2005 CarswellOnt 2867 (Ont. S.C.), [2005] W.D.F.L. 3562

Dunn v Dunn , 2011 CarswellOnt 14551, 2011 ONSC 6899

Drygala v Pauli , 2002 41868 (ON CA) , 2002 CarswellOnt 3228 (Ont. C.A.), 29 R.F.L. (5 th ) 293

Fisher v Fisher , 2008 CarswellOnt 43 2008 ONCA 11

Silva v Silva 1990 6718 (ON CA) , [1990] O.J. No. 2183 (Ont. C.A.)

Latcham v Latcham , 2002 44960 (ON CA) , [2002] O.J. No. 2126 (Ont. C.A.)

Thompson v Fitzjames , 2004 CarswellOnt 5506 (Ont. S.C.)

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McLaren, J.