SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 11-7756M
DATE: 20120528

RE: CYNTHIA NEATHERY

v.

CHRISTOPHER COTTLE

BEFORE: CONLAN J.

COUNSEL:
Lynn Burgess, for the Applicant
W. Joanne Horton, for the Respondent

E N D O R S E M E N T

[ 1 ] The Applicant, Ms. Neathery, brings a Motion for a temporary Order for spousal support, among other relief. The Motion was heard in Owen Sound on Friday, 25 May 2012, for most of the day.

[ 2 ] Both experienced counsel presented their submissions on behalf of their clients in an able and respectful manner. That is appreciated by the Court.

[ 3 ] Unopposed, this Court orders the disclosure relief sought in clauses 2 and 3 of the Applicant’s Notice of Motion dated March 30, 2012, at tab 9 of the Continuing Record. That disclosure shall be provided by Dr. Cottle to Ms. Neathery within 30 days of the date of this Endorsement.

[ 4 ] Unopposed, this Court orders the relief sought in clause 6 of the said Notice of Motion regarding the life insurance. That shall be complied with by Dr. Cottle within 30 days of the date of this Endorsement.

[ 5 ] On consent of the parties, this Court makes an order for questioning of the Respondent pursuant to Rule 20 of the Family Law Rules . That questioning of Dr. Cottle shall take place in Owen Sound. Where specifically and when shall be mutually agreed upon by the parties.

[ 6 ] Unopposed, this Court orders the relief sought in clause 7 of the said Notice of Motion regarding leave to Ms. Neathery to amend her Application. That shall be done within 30 days of the date of this Endorsement. The Respondent may serve and file an Answer to that Amended Application as per the Family Law Rules.

[ 7 ] On the issue of spousal support, this Court has reviewed carefully all of the evidence including Ms. Neathery’s Affidavit sworn on March 30, 2012 with Exhibits A through J (tab 10 of the Continuing Record); the Affidavit of Shelley Adamson, a law clerk in the office of the Applicant’s counsel, sworn on April 12, 2012, with Exhibit A being the report of psychologist Dr. Heaman dated March 30, 2012 (tab 11 of the Continuing Record); the Affidavit of Dr. Cottle sworn on May 9, 2012 with Exhibits A through G (tab 13 of the Continuing Record); the Affidavit of Ms. Neathery sworn on May 17, 2012 with Exhibits A through O (tab 14 of the Continuing Record); the Affidavit of Dr. Cottle sworn on May 24, 2012 with Exhibits A through D, filed at Court on May 25 with the consent of the Applicant; further Divorcemate spousal support calculations filed by the parties at Court on May 25; and a letter from the accountant for Ms. Neathery, Peter Bouther, dated May 14, 2012, filed by the Applicant’s counsel at Court on May 25 with the consent of the Respondent.

[ 8 ] This Court has also duly considered the following jurisprudence filed by the parties at Court on May 25: Vacaru v. Vacaru , [2010] O.J. No. 5536 (S.C.J. - C.F. Graham J.), filed by Ms. Neathery; Mason v. Mason , [2010] O.J. No. 5869 (S.C.J. - M.L. Edwards J.), provided by Dr. Cottle; and Brown v. Brown , [2012] N.B.J. No. 44 (N.B.C.A.) , filed by Dr. Cottle.

[ 9 ] Ms. Neathery asserts that she is entitled to spousal support on both compensatory and non-compensatory bases.

[ 10 ] Under the compensatory approach, spousal support is understood primarily as a form of compensation for the loss of economic opportunity, or economic disadvantage, resulting from the marriage and the respective roles adopted by the spouses. The root of compensatory spousal support traces back twenty years now, to the decision of the Supreme Court of Canada in 1992 in Moge , 1992 25 (SCC) , [1992] 3 S.C.R. 813.

[ 11 ] Seven years later, in 1999, the Supreme Court of Canada had occasion to discuss the limits of the compensatory principle. In Bracklow , 1999 715 (SCC) , [1999] 1 S.C.R. 420, the Court ruled that there is also a non-compensatory basis for spousal support based on need alone. A former spouse has, in some cases, an obligation to pay spousal support if the other spouse has an economic need for it, even where that need does not arise from the roles adopted by the partners during the union.

[ 12 ] Ms. Neathery and Dr. Cottle married on 28 June 2007. It was not either one’s first marriage. They separated in May or June 2011 (the parties disagree on the exact date of separation).

[ 13 ] The date that the parties began to cohabit is in serious contention. The Applicant says that date is March 2004. The Respondent says it is the date of marriage, June 2007.

[ 14 ] Ms. Neathery is a lawyer. The Respondent is a dentist who also served in the past in the Canadian Armed Forces.

[ 15 ] On the basis of conflicting affidavit evidence and my inability in this case to make reliable findings of credibility in the absence of viva voce evidence, I cannot determine whether the date of cohabitation should be anything earlier than May 2006.

[ 16 ] In light of the independent document at tab 14C of the Continuing Record, the correspondence from Veterans Affairs Canada to Dr. Cottle dated October 2007, this Court finds as a fact for the purposes of this Motion that the date of cohabitation is 15 May 2006. So for the purposes of the Spousal Support Advisory Guidelines (SSAG) calculations, the length of cohabitation is five years – May 2006 to May or June 2011.

[ 17 ] This Court is satisfied on the evidence that Ms. Neathery has established on balance an entitlement to spousal support on a non-compensatory basis. The evidence is too scant to make a finding of entitlement on a compensatory ground. I do not accept the documentation from the two doctors as expert opinion evidence. But even on the limited basis of admissibility urged by Ms. Horton, which I agree with, that medical evidence together with the Affidavits of the Applicant prove on balance that Ms. Neathery has an economic need for spousal support.

[ 18 ] This Court has been provided with numerous SSAG calculations from the respective parties. They range from a low of $300.00 per month based on a four year cohabitation to a high of $2,919.00 per month based on a seven year cohabitation. The explanation for such a wide disparity is that, beyond the dispute about the length of cohabitation, the parties disagree on certain inputs, namely, (i) $14,411.00 attributed by the Applicant to the Respondent for taxable dividends, (ii) $4,218.00 attributed by the Applicant to the Respondent for net partnership income, (iii) $55,200.00 attributed by the Applicant to the Respondent for an RBC pension, (iv) $10,000.00 that the Respondent says should be deducted from his income for funds invested in to an RRSP since separation, and (v) the appropriate amount for Ms. Neathery’s employment income.

[ 19 ] In reply submissions, Ms. Burgess argued that the Applicant could file Dr. Cottle’s tax returns to prove that the $14,411.00 and $4,218.00 amounts are recurring, contrary to what the Respondent asserts. That may be so, but on the evidence before this Court at this time, I find that those amounts shall not be included in Dr. Cottle’s income.

[ 20 ] I agree with the Applicant, however, that the $55,200.00 shall be included in Dr. Cottle’s income. Notwithstanding paragraph 21 of the Respondent’s Affidavit sworn on May 24, 2012, this Court adopts the submission on behalf of Ms. Neathery that the said amount represents money actually received by Dr. Cottle and, thus, ought to be included in his income.

[ 21 ] I accept Dr. Cottle’s evidence at paragraph 10 of his Affidavit sworn on May 24, 2012, and therefore, the $10,000.00 invested in to an RRSP shall be deducted from his income.

[ 22 ] On the final disputed issue of Ms. Neathery’s income, this Court agrees with the Respondent that the more appropriate figure is $54,739.00 rather than the Applicant’s best estimate of $30,000.00 by the end of 2012. The former has a more reliable evidentiary foundation. $54,739.00 shall be the employment income for Ms. Neathery for the purpose of calculating the spousal support on this Motion.

[ 23 ] The parties shall cooperate and determine the appropriate SSAG calculation in accordance with these Reasons. To reiterate the rulings on the disputed items: the length of cohabitation is 5 years; the $14,411.00 is not to be included in Dr. Cottle’s income; the $4,218.00 is not to be included in Dr. Cottle’s income; the $55,200.00 is to be included in Dr. Cottle’s income; the $10,000.00 is to be deducted from Dr. Cottle’s income; and Ms. Neathery’s employment income is to be $54,739.00.

[ 24 ] Once the parties have made the SSAG calculation in accordance with these Reasons, the amount ordered shall be the mid range figure. That is the most appropriate given all the purposes and objectives of spousal support and the particular circumstances of this case.

[ 25 ] If the parties cannot settle costs, then they may contact the Trial Coordinator in Owen Sound to schedule a date to hear brief oral submissions. Counsel for Ms. Neathery may attend by teleconference if preferred.

[ 26 ] This Court orders that the Respondent shall pay to the Applicant monthly spousal support in the amount calculated as per these Reasons, commencing 01 July 2012 and on the first day of each month thereafter. As this is a Temporary Order, no duration for the spousal support is being specified at this time. The Order is retroactive to the date of separation, which for the purpose of this Motion shall be fixed as 01 June 2011. A Support Deduction Order shall issue.

[ 27 ] I wish to thank, again, counsel for their very able assistance to this Court. To the parties, I say thank you to each for your service to the public.

[ 28 ] Temporary Order accordingly.

Conlan J.

DATE: May 28, 2012