Court File and Parties

Court File No.: 10-7355M
(Owen Sound)

Date: 2012-05-22

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SHELLEY DAWN PHILLIPS, Applicant

AND:

RICHARD DOW PHILLIPS, Respondent

BEFORE: FITZPATRICK, J.

COUNSEL:
Neil Arnold, Counsel for the Respondent
Richard Phillips, Self-Represented

HEARD: May 18, 2012

TEMPORARY ENDORSEMENT

[ 1 ] By Temporary Order dated June 25, 2010, Durno J. ordered the respondent to pay the following:

(a) Child support of $795 per month, commencing September 1, 2010 for the two children of the marriage, namely Kyle Richard Donald Phillips (“Kyle”), born April 14, 1991, and Avram McFarlane Phillips (“Avram”), born May 16, 1995;

(b) Spousal support of $600 per month, commencing February 1, 2010 for the applicant;

(c) 72% of the section 7 expenses for Kyle and Avram. These section 7 expenses were specified as being hockey expenses for Avram and college expenses for Kyle; and,

(d) 72% of any necessary medical, dental and health coverage expense incurred by the applicant, retroactive from the end of January, 2010.

[ 2 ] The support payments ordered by Durno J. were based on an imputed income of $52,800 for the respondent. Durno J.’s order does not specify the income he assigned to the applicant, although he does note that she was working part-time. Applicant’s counsel today advised he suggested to Durno J. a then income of approximately $17,000 for the applicant. Based on the 72% figure assigned by Durno J. to the respondent’s section 7 contributions, my own calculation suggests a then income of approximately $20,533 for the applicant (i.e. that income figure generates a 28% income ratio for the applicant to the respondent’s 72% based on the imputed $52,800 income). Durno J.’s related endorsement dated November 1, 2010, ordered the respondent to pay costs of $2,250.

[ 3 ] There are two motions before me, namely one by each party.

[ 4 ] The respondent brings a motion seeking to vary child and spousal support, along with the return of certain household contents/personal property items that have allegedly remained with the applicant.

[ 5 ] The basis for the child support variation claimed by the respondent is that Kyle completed his college course in April, 2012 and relocated to Saskatchewan to pursue his career. The basis for the spousal support variation claimed by the respondent is that he had been unemployed for a short period and he suggested the applicant could be working full-time with related earnings.

[ 6 ] The applicant’s motion seeks an order striking the respondent’s pleadings for arrears of support and failure to pay the $2,250 in costs ordered by Durno J. The applicant also seeks contribution to Avram’s lacrosse expenses in addition to the hockey expense ordered by Durno J.

[ 7 ] The parties advise that the respondent, at court on May 18, 2012, executed the Ownership Change Form (found at Exhibit “I” of the applicant’s affidavit sworn May 8, 2012). As such, the jointly owned life insurance policy #975305 with Co-Operators has now been transferred to the applicant alone.

[ 8 ] The parties agree that Kyle completed his college program and was no longer entitled to child support by the end of April, 2012. As such, child support for Kyle shall terminate on April 30, 2012.

[ 9 ] The applicant’s 2011 Notice of Assessment notes a Line 150 income of $24,755. Her affidavit sworn May 8, 2012 advises that the applicant obtained full-time employment commencing January, 2012 with a projected income of $34,125 for 2012.

[ 10 ] The respondent’s 2011 Income Tax Return, with attached T4s notes a Line 150 income of $57,943.84 from three different employers. The respondent commenced employment with a new employer at January, 2012. The respondent’s projected 2012 income is $55,000 to $65,000.

[ 11 ] For the purpose of determining support for this motion, I am relying on the parties’ respective income for 2011. Both parties commenced new employment in January, 2012. I am not prepared to speculate respecting what the 2012 earnings for each will be. Any necessary adjustments can be made to ongoing support following confirmation of the 2012 incomes, as detailed below.

[ 12 ] Commencing May 1, 2012, and the 1st day of each month thereafter, the respondent shall pay child support in the amount of $526 for Avram, based on the respondent’s 2011 income of $57,943, pursuant to the Federal Child Support Guidelines .

[ 13 ] I am not prepared to vary the temporary order of Durno J. respecting section 7 expenses, except as to the percentage payable by each party. Based on the applicant’s 2011 Line 150 income of $24,755, plus spousal support income as set forth below, and the respondent’s income of $57,943, the respondent shall contribute 68% to the section 7 expenses for Avram, namely, Avram’s hockey. The applicant shall contribute 32%. I am not prepared at this time to add any further section 7 expenses, including lacrosse, given the relatively modest income of the parties.

[ 14 ] The applicant shall provide the respondent with a copy of the relevant invoice at the time any request for contribution is sought from the respondent to Avram’s hockey. The applicant shall also provide the respondent with a copy of Avram’s hockey schedule within 7 days of the applicant or Avram’s receipt of same.

[ 15 ] Commencing January 1, 2012, and the 1st day of each month thereafter, the respondent shall pay spousal support of $121 monthly, based on the applicant’s 2011 income of $24,755, the respondent’s income for 2011 of 57,943 and the Spousal Support Advisory Guidelines (“ SSAG” ). The $121 monthly spousal support is the midpoint figure pursuant to the SSAG and does not reflect the respondent’s section 7 contributions. There is no reason to deviate from the midpoint spousal support figure in this matter.

[ 16 ] The respondent advises that he has health benefit coverage with his new employer. The respondent shall designate the applicant and Avram for such coverage as each is eligible for pursuant to the term of the respondent’s health benefit plan. The respondent shall ensure such coverage is in effect and provide written proof of such coverage to the applicant’s counsel within 30 days of this endorsement. The respondent shall maintain such coverage for as long as the plan benefits are available to him through his employment and the applicant and/or Avram remain eligible.

[ 17 ] The applicant’s counsel advises the applicant has health benefit coverage through her current employment. The parties shall communicate and cooperate to maximize the overall coverage available under their respective health benefit plans. Any health/dental expenses for Avram not covered by the combined coverage for the parties shall be treated/paid as a section 7 expense in the proportions set forth at paragraph 13. The party seeking contribution to any health/dental expenses for Avram shall provide the other party with a copy of the relevant invoice at the time any request for contribution is sought.

[ 18 ] There shall be no further temporary variations to child and/or spousal support, including section 7 expenses in this matter prior to June 30, 2013.

[ 19 ] The parties shall exchange complete copies of her/his 2012 tax returns, along with copies of T4s and any/all attachments, along with related 2012 Notice of Assessments/Re-Assessments by June 1, 2013.

[ 20 ] The applicant has agreed to provide the respondent with certain contents/personal property items in her possession. In that regard, the respondent shall attend at the applicant’s residence on Sunday, May 27, 2012, at 11:00 a.m. to collect the items the applicant is prepared to provide him. Receipt of these items shall be without prejudice to the respondent arguing he is entitled to receipt of or compensation for further items that were/are in the possession of the applicant.

[ 21 ] The respondent shall pay the $2,250 costs ordered by Durno J. as follows:

(i) the respondent shall pay $200 monthly, commencing June 1, 2012, and the 1st of each month thereafter until and including the payment on March 1, 2013; and

(ii) the respondent shall pay $250 on April 2, 2013.

[ 22 ] The respondent shall immediately provide the applicant’s counsel with 11 post-dated cheques for the payment set forth at paragraph 21.

[ 23 ] The respondent’s spousal and child support obligations, pursuant to the order of Durno J., are being enforced through the Family Responsibility Office (“FRO”). The respondent advises he has entered into a voluntary agreement with FRO whereby he is paying the current amount of support, plus an additional $150 monthly towards support arrears. There will no doubt be an adjustment to the respondent’s arrears based on this endorsement. However, it is my understanding that the respondent intends to continue to repay support arrears at a rate of not less than $150 monthly until those arrears are satisfied, and I hereby order that he does so.

[ 24 ] Given all of the above, I am not prepared to strike the respondent’s pleadings. The applicant’s motion seeking to strike pleadings and for contribution to Avram’s lacrosse expenses is hereby dismissed.

[ 25 ] There shall be no costs awarded/payable with respect to either the applicant’s or the respondent’s motion.

[ 26 ] The applicant’s counsel shall draft and have issued a temporary order based on this endorsement. The respondent’s approval as to form and content is dispensed with.

[ 27 ] Support Deduction Order to issue based on the terms of this endorsement.

FITZPATRICK J.

Date: May 22, 2012