SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-11-608
DATE: 2012/07/06

RE: Jennifer Finucan, Applicant

AND:
Brad Finucan, Respondent

BEFORE: The Honourable Mr. Justice H. S. Arrell

COUNSEL:
Gerry Smits, for the Applicant
Ted Dueck, for the Respondent

HEARD: July 5, 2012

ENDORSEMENT

Introduction:

[ 1 ] The applicant brings this motion for interim child and spousal support. The parties have three children. Bryce lives with his father and the two youngest live equally with mother and father in a four day about situation.

[ 2 ] The parties agree, on a without prejudice basis, that father should pay mother net child support commencing July 1, 2012 the amount of $779.00 per month and I so order. Counsel advise that the issue of retroactivity should be left for trial if need be.

Issue:

[ 3 ] The issue is whether the applicant is entitled to spousal support and if so, what should that amount be after consideration of the parties’ respective incomes.

Facts:

[ 4 ] The parties lived together for 14 years up to the time of their separation on August 28, 2009, 12 of those years were in marriage. They have three children.

[ 5 ] The respondent is a police officer and has consistently earned in excess of $100,000.00 per year. In 2011, he earned $111,000.00 as a result of a special squad he was assigned to and that will continue in 2012. The respondent must contribute to his pension and union a total of approximately $13,500.00 per year.

[ 6 ] The applicant, at the time of separation, had a good job working for an American card company out of her home. She earned approximately $70,000.00 per year.

[ 7 ] Spousal support was not an issue on separation due to the income being earned by the applicant. It became an issue in 2011 when the applicant’s American employer went bankrupt and she lost her job in September 2011.

[ 8 ] The applicant found further work in Brantford in November 2011 at $40,000.00 per year. That job, for a number of personal reasons, did not work out and she voluntarily left in January 2012. Since then, the applicant has started to get some contract work from her old employer. She is on track to earn approximately $36,000.00 for 2012.

Analysis:

[ 9 ] The applicant argues that as a result of circumstances beyond her control, she is currently in need of some support. She is well qualified in her field and has a degree, however, she has not to date found employment commensurate with her earlier work. She expects that will happen but in the meantime needs some assistance.

[ 10 ] The respondent argues she is not entitled to any support as she elected her career and was not disadvantaged as a result of the marriage.

[ 11 ] I disagree. Her work was always out of the home, which both parties wanted. This allowed her to be there for the children and allowed the respondent to pursue his career and shift work. She does not have the same contacts in obtaining other employment as a result of the couple’s choice that she work for an American employer and that she do so out of the home. To that extent she has been disadvantaged by the marriage.

[ 12 ] The fact remains that the applicant, through no fault of her own, has a temporary need and the respondent, who earns almost three times more than she, has the ability to pay.

[ 13 ] I acknowledge the arguments of the respondent that the applicant may be living an extravagant lifestyle. Her financial disclosure does not support this proposition and I reject it. In fact the material before me would indicate the applicant is living modestly, especially, when one considers she is also raising 2 children half the time.

[ 14 ] I also acknowledge the argument that the applicant may not have been totally forthcoming about her income. There is no evidence to support that proposition and I accept as truthful what I have been told by both parties about their respective incomes, employment situations and expenses.

[ 15 ] I conclude that although the applicant may not have liked the job she acquired at $40,000.00 per annum, she should not have quit without something better to go to. I therefore attribute her income at $40,000.00 per year for spousal support purposes.

[ 16 ] The respondent argues his income should be reduced by his pension and union contributions because he has no choice in the deductions and it reduces his cash flow.

[ 17 ] The fallacy in that argument is that he will get the full benefit of his current pension contributions, as his pension has been divided.

[ 18 ] I have taken into account the argument of the respondents reduced cash flow, the increase in income I attribute to the applicant and the amount she will receive by way of child support. I conclude she is entitled to some spousal support on an interim basis until her income gets back to its previous level. I conclude spousal support commencing July 1, 2012 payable to the applicant by the respondent at $850.00 per month would be fair and reasonable under all of the circumstances.

[ 19 ] This spousal support will be payable for 12 months at which time the applicant may return, upon notice to the respondent, for a review as to whether support should continue or be in some other way varied. She will of course be expected to show proof of her efforts to increase her income over the next 12 months to its previous level if seeking continued support.

[ 20 ] The applicant is ordered to produce to the respondent every 6 months a year to date earnings statement with confirming documentation attached. The respondent will do likewise.

[ 21 ] I would expect costs to follow the cause and would fix the amount at $750.00 inclusive. The parties may speak to me if there are offers that would alter that award of costs that I have ordered. I would allow the respondent 60 days to pay the costs.

ARRELL J.

Date: July 6, 2012