COURT FILE NO.: 45539-11
DATE: 2012-08-02
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Diana Lesiuta Drouillard, Applicant
AND:
Paul Douglas Drouillard, Respondent
BEFORE: The Honourable Mr. Justice D. A. Broad
COUNSEL: Filomena A. Andrade, for the Applicant
Michael B. Wannop, for the Respondent
HEARD: August 2, 2012
ENDORSEMENT
[ 1 ] The Applicant Wife moves for an Order for interim/temporary spousal support retroactive to July 1, 2011. She also seeks various related relief including an order that the Respondent Husband maintain a health benefit plan and life insurance policy for her benefit, that the Respondent produce records for personal expenses paid by one or more of the corporations controlled by him for his benefit and that the Applicant have possession of the 2005 Saab motor vehicle which she is currently using and that the Respondent continue with the loan payments on that vehicle.
[ 2 ] The parties are generally in agreement with respect to the related relief (subject to differing positions on the nature and extent of the financial disclosure from the corporations) but are opposed on the interim spousal support issue. The Applicant takes the position that the Respondent’s income, through the corporations or personally, for the purpose of the motion is $140,000.00 per annum. The Respondent disputes this figure and suggests that his income is properly $100,000.00. The Respondent further argues that income should be imputed to the Applicant in the sum of at least $20,000.00 on the basis that, three years post-separation, the Applicant should have achieved greater self-sufficiency. Moreover the Respondent argues that the Applicant has not demonstrated a need for support much greater than the sum of $25,380.00 per annum which she has been receiving as salary from one or other of the corporations since late August 2011 (reduced from $42,000.00 per annum from the date of separation to that date).
[ 3 ] The Applicant, age 54, and the Respondent, age 55, were married on October 13, 1979 and separated August 19, 2009. There are two children of the marriage, Darren born April 8, 1987 and completed his college education, and Brandon born January 27, 1989, going into 4 th year of University.
[ 4 ] The Applicant was a stay at home mother from the birth of their first child until the parties started their accounting business in 1999. The Respondent is a Certified General Accountant. The Applicant holds a college diploma in business administration acquired prior to marriage and took a course to become an educational assistant in 1993-94. The Applicant was employed on a part-time basis in the family’s accounting business from 1999. It is unclear from the record when this occurred, but sometime around the date of separation, the Applicant’s employment in the business was terminated but she continued to receive a salary of $42,000.00 per annum, which was reduced unilaterally by the Respondent on August 28, 2011 to $25,380.00 per annum. One of the Respondent’s declared reasons for this was his belief that the Applicant had had sufficient time to become more self-sufficient. The parties are agreed for the purposes of the motion that upon the making of a spousal support order, the payment of salary by the corporation(s) will cease and accordingly I am not to assume its continuance for the purpose of determining the Applicant’s income.
[ 5 ] The issues for determination are:
(1) What is the Respondent Husband’s income for the purpose of determining interim spousal support?
(2) What is the Applicant Wife’s income for the purpose of determining interim spousal support (and within that, should income be imputed to the wife beyond the level of her actual income)?
(3) To what degree are the factors of the Applicant’s need and the maintenance of pre-separation lifestyle for the Applicant relevant to the determination of interim spousal support?
[ 6 ] The Supreme Court of Canada in Bracklow v. Bracklow 1999 715 (SCC) , [1999] S.C.J. No 14 held that there were three types of support, namely, compensatory, non-compensatory and contractual. The objectives of a spousal support order are well-known and are set forth at s. 15.2(6) of the Divorce Act . It is well-accepted that there is no priority among these objectives, and on the facts of a particular case, one objective may have more relevance that the others.
[ 7 ] The parties are in agreement that the principles governing interim spousal support motions were correctly outlined by Lemon, J. in the case of Driscoll v. Driscoll 2009 66373 (ON SC) , 2009 CarswellOnt 7393 (SCJ) (citing the case of Robles v Kuhn 2009 BCSC 1163 () , [2009] B.C.J. No. 1699 (B.C. Master)), as follows:
On applications for interim support the applicant's needs and the respondent's ability to pay assume greater significance
An interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor's ability to pay warrants it;
On interim support applications the court does not embark on an in-depth analysis of the parties' circumstances which is better left to trial. The court achieves rough justice at best;
The courts should not unduly emphasize any one of the statutory considerations above others
On interim applications the need to achieve economic self-sufficiency is often of less significance;
Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise;
Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out;
Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support .
[ 8 ] Exhibit C to the Respondent’s Affidavit sets out, in schedule form, a summary and analysis of the aggregate income of the family businesses for the years 2007 to 2011. These amounts (prior to consideration of any deduction to account for the cost of replacing the Applicant’s services, discussed below) were as follows:
2007
2008
2009
2010
2011
$ 152,392.90
$138,060.00
$146,933.50
$130,068.00
$119,257.17
[ 9 ] The Respondent argues that from these figures the sum of $ 30,000.00 per year should be deducted for the cost of replacing the work done by the Applicant for the businesses. However, counsel for the Respondent acknowledged in argument that this proposed deduction is notional at this stage and is based only on the Respondent’s own estimate or opinion. If there is to be a deduction on account of the cost of replacing the Applicant’s services that is best left for trial, to be based on more complete evidence.
[ 10 ] It can be readily observed that the net income of the businesses fluctuates from year to year, and based upon the information in the record, this is attributable to varying degrees of fluctuation in the annual revenues and expenses. Given that the businesses’ (and hence the husband’s) income fluctuates, it would not be proper, in my view, to choose any one particular year as representative of the Respondent’s income for the purpose of the motion. The average of the most recent three years is $132,086.22 and the average for the last five years is $137,342.31. On the basis of the third principle in Driscoll above, I would set the Respondent’s income at $135,000.00 for the purposes of this motion.
[ 11 ] The Applicant deposes that her net income for 2011 as a self-employed book-keeper was $1,576.73, based upon gross revenues of $8,623.20. In argument her counsel advised that she is on track to earn gross revenues of $10,000.00, with equivalent expenses, resulting in net income of $2,953.53, or rounded to $3,000.00.
[ 12 ] I am not satisfied that the Respondent has demonstrated that the Applicant is intentionally or voluntarily unemployed or under-employed, at least for the purposes of the present motion, in order to impute a higher income to her. This is, of course, without prejudice to a different finding being made at trial, based upon a fuller record.
[ 13 ] In accordance with Cassidy v. McNeil 2010 ONCA 218 at para. 27 , spousal support in this case should be based, not on a budget of expenses of the Applicant, but on income-sharing. The fact that the Applicant may have adjusted her lifestyle downwards following the date of separation in order to reflect her reduced income should not work to her detriment and to the advantage of the respondent on the present motion. Given the duration of the marriage and the role which the Applicant took on during the marriage in relation to child care and maintenance of the home environment, as well as her contributions to the family businesses, she is entitled, insofar as the Respondent is able to contribute to it, to maintain a lifestyle approximating that which she enjoyed prior to the separation.
[ 14 ] In the absence of opportunity to carry out an in-depth analysis of the parties’ circumstances, which is better left to trial, and in an effort to achieve “rough justice,” I order the Respondent to pay to the Applicant interim support in the amount of $4,500.00 per month. The loan payments made by the Respondent on the Saab vehicle, on the assumption that they are being paid by the Respondent personally via his corporate loan account (i.e. with “after-tax” dollars) in the sum of $552.59/month shall be credited against the support payments. The support payments shall be retroactive to July 1, 2011 (being just prior to commencement of the application), subject to credit being given for the salary received by the Applicant from the corporation(s) during that period. Again, this order for interim support is without prejudice to the right of either party to argue for different levels of income for the parties at trial and to seek retroactive support (or reimbursement) based upon the trial judge’s determination.
[ 15 ] It is further ordered that Respondent maintain the Applicant on the existing health benefit plan and as beneficiary on his life insurance policy or policies. The Applicant shall have possession of the 2005 Saab vehicle and the Respondent shall continue to make the loan payments thereon until the loan is paid in full or until trial, whichever first occurs. The Respondent shall also provide full particulars, with supporting records and documentation, of all payments made by the corporations to him, or for his personal benefit, including, without limitation, legal fees, insurance, telephone, internet, cable or satellite services, automobile, meals and travel, from the date of separation to date, and on an on-going basis until trial.
[ 16 ] The parties may make written submissions on costs (not exceeding three double-spaced pages, excluding any Offers to Settle and Costs Outlines) – the Applicant by August 27, 2012 and the Respondent by September 10, 2012.
D. A. Broad J.
Date: August 2, 2012