SUPERIOR COURT OF JUSTICE - ONTARIO
WALKERTON COURT FILE NO.: 03688/04
DATE: 20120822
RE: Robert Nicholas Cassidy (Applicant)
v.
Anne Cassidy (Respondent)
BEFORE: MacKenzie J.
COUNSEL:
Mr. Cassidy, In Person
Ms. Cassidy, In Person
HEARD: March 21-23, April 27-28, 2011; plus written submissions
E N D O R S E M E N T re: Form of Order
[ 1 ] In Reasons for Judgment dated April 13, 2012, I disposed of motions brought by parties to change the provisions of a Consent Order made November 14, 2007 (the Consent Order). Among other things, the Consent Order dealt with custody and access issues relating to the children of the marriage plus child and spousal support payable by the applicant to the respondent.
[ 2 ] Full details of the disposition of these issues are found in the substantive portion of the Reasons for Judgment comprising 67 paragraphs and need not be repeated for the purpose of settling the form of the resulting order.
[ 3 ] Since the issuance of the Reasons for Judgment I directed the parties to submit their respective versions of the resulting order for purposes of settling the same. On or about June 15, 2012 I received the respondent’s version of the draft order. On or about July 30, 2012 I received a letter from the applicant but regrettably, he has not forwarded his version of the draft order. The first sentence of his July 30, 2012 letter states:
As requested I am putting forward my observations on items to be clarified in your reasons for judgment dated April 13, 2012 which, I understand you’ll be incorporating into an order.
[ 4 ] This sentence indicates to the court that the applicant continues to argue certain aspects of the Reasons for Judgment, notwithstanding the delivery of the same. It is open to either party including the applicant if he/she disagrees with the factual findings in the Reasons for Judgment or the application of the applicable law to have appellate review of the same. This, however, is not the exercise before the Court. This exercise is simply to settle the form of order so that the hearing that was the subject of the reasons for judgment can be completed. In the result, I will address the settlement of the form of the order by reference to the respondent’s version and accompanying letter of June 15, 2012.
[ 5 ] Paragraph 68 of the Reasons for Judgment sets out the dispositive terms of the orders. The amount of the applicant’s regular employment remuneration as a pilot with Air Canada was not made known to the court as of April 13, 2002 and this unknown factor required the quantification of support to be made referable to the CGS upon this factor becoming known.
[ 6 ] Among the documents filed by the respondent in support of her version is a letter issued by Air Canada, the applicant’s employer, to the applicant showing a date of resumption of the applicant’s regular employment as July 4, 2011.
[ 7 ] There is also a copy of a Notice of Assessment dated May 31, 2012 issued by C.R.A. which states the applicant’s total income for 2011 (July through December 2011) is $96,884.00. This amount comprises ‘Employment Income’ of $59,173.00 and ‘Other Employment Income’ of $37,511.00. The ‘Employment Income’ of $59,173.00 coincides with the description of the applicant’s previous year [2011] income of $59,173.65, as described in the Air Canada letter dated May 15, 2012.
[ 8 ] The income for the year 2012 on an annualized basis is problematic on the basis of the materials supplied.
[ 9 ] The Air Canada letter dated May 15, 2012 states that the applicant’s “income to date” i.e. May 15, 2012, is $55,480.08. The difficulty here is that the words “to date” on their face indicate employment income up to May 15, 2012, i.e. 4.5 months, it does not stipulate the periodicity of the applicant’s pay dates, e.g. monthly, biweekly etc. Without this information, the annualization submitted by the respondent, though arithmetically logical, cannot be the final or determinative amount of compensation for arriving at the applicant’s support obligations.
[ 10 ] The true extent of the applicant’s income in any calendar year can only be determined on the basis of his income tax filings and resulting notices of assessment. Although it is not open to the Court to make a final determination of support payments at this point, a provisional support obligation can be calculated. The annualized 2012 income of the applicant submitted by the respondent on the basis of her analysis of the applicant’s “paystubs” from December 1, 2011 through May 2, 2012 is $150,810.84.
[ 11 ] Applying the CSGs and SSAGs to the above income, the applicant shall pay to the respondent (a) child support of $3,500 per month, effective July 4, 2011, and (b) spousal support of $725.00 per month effective July 4, 2011.
[ 12 ] The respondent in her submissions asks whether the direction in paragraph 39 of the Reasons for Judgment has been “taken into consideration for reply in paragraph one of the Disposition, paragraph 4”. The adjustments described in paragraph 39 are expressly stated to be made in reference to the Child Support Guidelines set out in paragraph 20 of the November 14, 2007 order.
[ 13 ] The respondent also asks whether the date of August 1, 2011 found in paragraph 48 of the reasons for judgment relating to spousal support on a without prejudice basis of $600 per month is the date to be used for retroactive spousal support. The answer to this question is as stated: the spousal support, on a without prejudice basis, of $600 per month is retroactive commencing August 1, 2011, however, as paragraph 48 continues, that amount should continue until the applicant resumes his regular employment and upon resumption of such regular employment, that is, July 4, 2011, the amount of spousal support is to be fixed in accordance with the mid-range set out in the Support Advisory Guidelines (SSAGs). In the events that have followed since the date of issuance of the reasons in April 13, 2012, the spousal support shall be fixed in the mid-range of SSAGs commencing the date of resumption by the applicant of his regular employment, namely, July 4, 2011.
[ 14 ] The respondent raises a further issue relating to the child support arrears as of June 1, 2011, vis à vis the amount outstanding on the mortgage receivable held by the applicant from the respondent.
[ 15 ] The respondent seeks clarification as to whether the child arrears of $32,764.59 shall be set off against the $42,000 mortgage by the respondent to the applicant leaving a balance owing on the respondent’s mortgage to the applicant of $9,235.41.
[ 16 ] The intent of the words in clause four of paragraph 68 of the Reasons for Judgment, sub clause (i), is to include as an addition to the established arrears any “arrears and support payments since the first of June, 2011.”
[ 17 ] The respondent informs in her letter of June 15, 2012, that the Financial Responsibility Office has been deducting arrears from the applicant’s pay since his return to employment in July of 2011. However, the amount of such deduction is unclear inasmuch as the respondent has merely stated that the arrears are “significantly less than $32,764.59.” She however continued to point out of that there are s.7 expenses “accumulated” to the date of the order i.e. April 13, 2012, and to the date of her letter of June 14, [sic] 2012, being $4,903.23 and $6,357.83, respectively for the two periods.
[ 18 ] The words of s.4 (1) are “any arrears and support payments that have accrued since June 1, 2011.” The s. 7 expenses are a form of support payment. If the amount stipulated by the respondent in relation to the “accumulated” expenses for the periods in question, are support payments and they are in arrears, then the total of these two sums are a proper addition to the amount to be set off against the principal or face amount of the balance outstanding on the mortgage of $42,000. In the result, if after these adjustments, there is a balance owing by the respondent to the applicant in respect of the mortgage, then the respondent is not prejudiced inasmuch as she has received through the agency of the FRO some of the arrears which were originally intended to be paid by way of “set off” against her indebtedness on the mortgage to the applicant.
[ 19 ] In sum, the provisions of paragraph 68 of the Reasons for Judgment shall form the basis of the resulting order. The resulting order under paragraph 68 of the Reasons for Judgment incorporates by reference the Consent Order of November 14, 2007. A draft of the resulting order reflecting the above provisional child and support obligations is included for the assistance of the parties in having the same issued on an expeditious basis.
[ 20 ] Any matters arising out of the terms of the resulting order incorporating the Consent Order may be made on motion before any judge of this court presiding in Walkerton. I am not seized herein.
MacKenzie J.
DATE: August 22, 2012
WALKERTON COURT FILE NO.: 03688/04
DATE: 20120822
SUPERIOR COURT OF JUSTICE - ONTARIO RE: Robert Nicholas Cassidy (Applicant) v. Anne Cassidy (Respondent) BEFORE: MacKenzie J. COUNSEL: Mr. Cassidy, In Person Ms. Cassidy, In Person ENDORSEMENT re: Form of Order MacKenzie J.
DATE: August 22, 2012