ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 2355/11
DATE: 2012-04-17

BETWEEN:

LISA DEVINCENZO Applicant – and – ANTHONY DEVINCENZO Respondent

Murdoch Carter, for the Applicant
John Paul Paciocco , for the Respondent

HEARD: April 12, 2012

REASONS FOR INTERIM ORDER

JUSTICE E. GAREAU

[ 1 ] This matter came before me by way of the interim motion brought by the applicant wife at Tab 7 of the continuing record and the interim motion brought by the respondent husband at Tab 14 of the continuing record.

[ 2 ] In her motion, the applicant seeks an interim order for child support for the child Cindy Rae Devincenzo born June 25, 1991, including Section 7 extraordinary expenses, interim spousal support and interim exclusive possession of the matrimonial home and contents located at 193 Reid’s Road, Echo Bay, Ontario.

[ 3 ] The respondent husband, in his motion at Tab 14 of the continuing record seeks an order for sale of the matrimonial home and the livestock kept at the home.

[ 4 ] The parties had a 21-year marriage. They have lived separate and apart since July, 2011. The applicant and the respondent are the parents of two children, Mandy and Cindy. Mandy lives independently. Child support is being sought for Cindy who is 20 years of age and completing her second year at Fanshawe College in London, Ontario.

[ 5 ] The applicant was not employed outside of the home at the time of separation and is presently not employed. The applicant has not worked for some time. In her financial statement at Tab 6 of the continuing record, the applicant indicates that she was last employed in 2007. The respondent is employed as an electrician with Superior Industrial Services. There is an issue as to what income should be attributed to the respondent for the purposes of child and spousal support.

[ 6 ] The applicant has resided in the matrimonial home since the parties separated. The matrimonial home is jointly owned by the parties and is located in the country and at the home are numerous livestock, which the applicant cares for, which takes considerable time and amounts to considerable expense. There is an estimated 30 to 35 animals at the property of the matrimonial home, such as horses, cows, chickens, rabbits and dogs. The respondent wishes the home and the livestock sold to pay down some of the debt of the parties.

[ 7 ] In her affidavit sworn on January 27, 2012 at Tab 8 of the continuing record, the applicant states in paragraph 7 that the respondent earns “approximately $100,000.00 a year.” The financial disclosure received from the respondent has revealed that his earnings have been far less than alleged by the applicant. In the year 2009, the respondent had a gross income of $61,680.00. In 2010, his income was $69,049.00. In 2011, the respondent had a gross annual income of $75,175.00. The respondent’s counsel submitted that Mr. Devincenzo’s base pay is $55,296.00 and the additional amounts earned were from overtime, which is not guaranteed. It was suggested that the respondent’s income is unduly high because there was a shut down at Essar Steel which the respondent worked on and this will not be repeated. The respondent husband suggests that he can earn some overtime, but not the overtime he earned in 2011. He suggests that if he continues to work these hours he will burn himself out which, in the end, will not be beneficial to his wife or their daughter, Cindy. The respondent suggests that his income should be considered to be $65,000.00 yearly for the purpose of support.

[ 8 ] The respondent’s income has gone up each year from 2009 to 2011. In the full earning year prior to the separation of the parties (2010) Mr. Devincenzo earned $69,049.00. The average of the respondent’s income for the years 2009, 2010 and 2011 is $68,636.00. In my view, considering the fluctuation of the respondent’s income and the fact that a component of his income is attributable to overtime hours, it is appropriate to average his income for the years 2009, 2010 and 2011 to determine an income for the respondent for the purposes of child and spousal support. Accordingly, I set Mr. Devincenzo’s gross annual income at $68,636.00 for support purposes. This is close to the $69,049.00 income he earned in the full year prior to separation and is a fair and appropriate income to be attributed to Mr. Devincenzo.

[ 9 ] The child Cindy is completing her second year of interior design at Fanshawe College. There is an issue raised by the respondent about whether Cindy’s program will be completed at year two or whether it is a three-year program, which means Cindy will be returning to school in September, 2012. The affidavit of the applicant sworn on December 8, 2011 at Tab 4 of the continuing record simply states at paragraph 6, “The child, Cindy, is currently attending Fanshawe College in London, Ontario and is in her second year of the interior design program.” Nowhere in the affidavit material filed by the applicant mother is there details provided about the length of Cindy’s program or confirmation from the Registrar of Fanshawe College about the particulars of the program that Cindy is enrolled in. With respect to the claim for Section 7 extraordinary expenses, in the affidavit of the applicant at Tab 8 of the continuing record, details are provided as to Cindy’s tuition and rent, but the other expenses related to Cindy’s school are not particularized nor are details provided as to the contribution that Cindy is making toward the cost of her education. At paragraph 4 of her affidavit sworn on January 27, 2012 at Tab 8 of the continuing record, the applicant states: “The child, Cindy Rae Devincenzo, is attending Fanshawe College in London, Ontario and is in her second year of the interior design program. During breaks from school she lives with me. In the summer, she works part-time at Shopper’s Drug Mart in Sault Ste. Marie. The respondent has not contributed to any of her college expenses. She has had to set up an O.S.A.P. loan in order to finance her education. The maternal grandmother, Celeste Berlingeri, has been helping with Cindy’s rent, which is $425.00 per month and her car expenses due to the fact that the respondent has paid nothing toward her education.”

[ 10 ] This is the extent of the particulars provided by the applicant mother. Without more particulars as it relates to Cindy’s program at Fanshawe College, her earnings, O.S.A.P. and contributions received by her and her complete university expenses, the court is unable to make an accurate determination of the Section 7 expenses attributable to Cindy’s education.

[ 11 ] What is known at this time is that Cindy will be residing in the matrimonial home with the applicant during the months of May, June, July and August, 2012. Presumably, Cindy will return to school in September, 2012.

[ 12 ] I am ordering that the respondent pay to the applicant the guideline amount for Cindy for the months of May, June, July and August, 2012. That amount will be $626.00 per month based on the respondent’s income of $68,636.00 per year as I have found it. Child support for Cindy will be reviewable as of September 1, 2012. It is expected by that time we will know if Cindy returns to school and better affidavit material will be filed dealing with the deficiencies in the information before the court which I have referred to in my judgment.

[ 13 ] With respect to spousal support, the respondent urges that the court impute income to the applicant wife in the amount of $25,000.00. The respondent suggests that the applicant is capable of working, she has worked in the past and is not working because she chooses to care for the livestock instead, which is not the responsible thing to do given the financial situation of the parties. The fact is that the applicant wife has been out of the workforce for some time, since at least 2007 according to her sworn financial statement. At the time the parties separated, the applicant was not working. She was engaged in caring for the matrimonial home and the livestock. She was a “stay-at-home mother” as she puts it with the respondent being “the sole provider for our family”. At paragraph 4 of the applicant’s affidavit, sworn on February 29, 2012 at Tab 16 of the continuing record, the applicant states: “I am not able to work. During the marriage I did choose to be a stay-at-home mother and raise our two children. I also cared for the animals. However, now I am not able-bodied, I suffer from hip problems and as a result, I am unable to work. The emotional abuse I endured during the marriage has also negatively affected my ability to work. I do not believe that any income should be imputed to me.”

[ 14 ] At the interim stage, the statements made by the applicant should be taken at face value. The matter of the applicant’s physical and emotional health will ultimately have to be addressed by medical information on the ultimate disposition of this matter, but given the history and the situation existing at the time of separation, it is not appropriate, in my view, to impute income to the applicant at the interim stage.

[ 15 ] Accordingly, interim spousal support will be based on the respondent having an income of $68,636.00 per year and the applicant having no income. The spousal support advisory guidelines provide for a range of spousal support between $1,733.00 to $2,090.00 per month with a mid-point of $1,912.00 per month, based on the aforementioned incomes. I have reviewed the financial statements of the parties and the monthly expenses claimed by both of them. In his financial statement at Tab 13 of the continuing record, based on an annual income of $65,295.96 the respondent lists a monthly income of $5,441.33 and monthly expenses of $3,817.80 for a surplus of $1,623.53 per month. I have found Mr. Devincenzo’s income to be $3,500.00 per year higher than he has disclosed increasing his surplus approximately another $200.00 monthly. If expenses are eliminated from the respondent’s monthly budget which are normally eliminated, such as meals outside the home, alcohol and tobacco, entertainment, gifts and vacation, that increases the respondent’s monthly surplus to $2,278.53 per month. Given this and the income tax consequences to the respondent of a spousal support order, I find that the respondent has the ability to pay spousal support to the applicant in the amount of $2,000.00 per month.

[ 16 ] As disclosed in the applicant’s financial statement at Tab 6 of the continuing record, the applicant has a need for spousal support at that level. Eliminating similar expenses from the applicant’s budget that I eliminated from the respondent’s budget still indicates a need of spousal support at the $2,000.00 per month level especially considering that the applicant’s budget does not include the monthly mortgage expense of $563.53 which the applicant will have as an expense if she continues to reside in the matrimonial home on an interim basis.

[ 17 ] Accordingly, there will be an interim order that the respondent pay to the applicant, spousal support in the amount of $2,000.00 per month commencing May 1, 2012.

[ 18 ] The previous support order made on March 1, 2012 will be vacated as of May 1, 2012.

[ 19 ] There is not sufficient information before the court at the present time to adjudicate on the respondent’s request for a sale of the matrimonial home or the livestock. The matrimonial home has not been appraised. The husband feels the property is worth $210,000.00 but there is no valuation which supports that contention. Similarly, there is no valuation of the livestock. The court has no information on what amounts would likely be generated if the matrimonial home and the livestock were sold. Without this information, the parties cannot generate net family property statements which would indicate if the wife’s goal to retain the matrimonial home and the livestock is realistic or not. I have my doubts that the applicant will have the financial means to permanently retain the matrimonial home and the livestock on an equalization calculation, but she should have the opportunity to explore this avenue after proper valuations of the matrimonial home and chattels are obtained. After this is done, the applicant may come to the realization that the only feasible alternative is to sell the matrimonial home and livestock, but the applicant cannot make that assessment without proper valuations of the assets being prepared.

[ 20 ] I am not dismissing the respondent’s motion at Tab 14 of the continuing record. It is not without merit. It is just premature. I am adjourning the respondent’s motion at Tab 14 of the continuing record to June 14, 2012 at 10:00 a.m. That should allow sufficient time for the parties to obtain the necessary appraisals to generate accurate net family property statements and for the applicant wife to make a realistic assessment as to whether it is economically feasible for her to retain the matrimonial home and livestock. I urge the applicant to consider the respondent’s request for sale if the outcome is obvious after the valuations have been obtained.

[ 21 ] The costs with respect to the motion at Tab 14 of the continuing record should be determined by the judge ultimately dealing with that motion. With respect to the motion at Tab 7 of the continuing record, if costs are an issue, both parties are to submit written submissions not exceeding 5 pages in length and a draft bill of costs no later than 4:00 p.m. on May 2, 2012.

Justice E. Gareau

Released: April 17, 2012