SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 11-7756M
DATE: 20120531
RE: CYNTHIA NEATHERY
v.
CHRISTOPHER COTTLE
BEFORE: CONLAN J.
COUNSEL:
Lynn Burgess, for the Applicant
W. Joanne Horton, for the Respondent
SUPPLEMENTARY ENDORSEMENT
[ 1 ] After the release of the Court’s Endorsement dated May 28, 2012, the Court received correspondence from counsel asking for clarification of two further matters.
[ 2 ] These two further matters were not reflected in my notes that I took, rather carefully, during the oral submissions of Ms. Horton on the specific items of dispute regarding Ms. Neathery’s SSAG calculation dated May 25, 2012. That is why these two further matters were not addressed in my earlier Endorsement, hence, this Supplement thereto.
[ 3 ] I will deal first with Ms. Neathery’s RRSP income in the amount of $25,000.00. That amount shall be included in Ms. Neathery’s total income. I agree with the Respondent in that regard. The Vacaru decision (the full citation given in the earlier Endorsement) is distinguishable in that the Court there declined to include the RRSP income because it had already been the subject of the property equalization settlement (paragraph 303). That is not the case here, and in the absence of some authority from the Applicant that the said RRSP withdrawal(s) should be excluded from her income now , I prefer the submissions of the Respondent.
[ 4 ] I should add that there is nothing unfair about that result in that the $10,000.00 that the Court allowed in its earlier Endorsement to be deducted from the Respondent’s income as funds invested into an RRSP since the date of separation must be accounted for in terms of the property equalization. The fact is that, currently, the $10,000.00 is not income for the Respondent; while, currently, the $25,000.00 is income for the Applicant.
[ 5 ] On the second issue of the Applicant’s dividend income, the $44,750.00 or $35,800.00 (whichever amount is preferred) shall not be included in Ms. Neathery’s total income. I accept the evidence of Ms. Neathery and her accountant (letter dated May 14, 2012). To be clear, this Court is not relying upon the statement in that letter which reads “…the divided…should not be looked upon as being income for Ms. Neathery”. That is opinion evidence which is inadmissible in the absence of a determination by the Court that the accountant is an expert, which finding cannot and is not made on this record. Further, that statement is inadmissible regardless as it offends the ultimate issue rule (counsel for the Applicant was candid enough in submissions to essentially concede that latter observation). The remainder of the said letter, however, which counsel for the Respondent quite appropriately agrees is largely admissible as a business record, coupled with the evidence of Ms. Neathery, has persuaded the Court on balance that the dividend resulting from a transaction in 2010 and reported on a past year’s tax return is likely an anomaly and, thus, ought not to be included in the Applicant’s total income for calculating, now, spousal support.
[ 6 ] I trust that this supplement addresses the two outstanding matters. Thank you to counsel for your correspondence raising these issues.
Original signed “Conlan J.”
Conlan J.
DATE: May 31, 2012
COURT FILE NO.: 11-7756M
DATE: 20120531
SUPERIOR COURT OF JUSTICE - ONTARIO RE: CYNTHIA NEATHERY v. CHRISTOPHER COTTLE BEFORE: CONLAN J. COUNSEL: Lynn Burgess, for the Applicant W. Joanne Horton, for the Respondent SUPPLEMENTARY ENDORSEMENT Conlan J.
DATE: May 31, 2012