COURT FILE NO.: FS-12-1126-00
DATE: 20120813
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Dawn Strong
M. Rose, for the applicant
Applicant
- and -
Anthony Strong
S. Howden, for the Respondent
Respondent
HEARD: August 1o, 2012
ENDORSEMENT
Justice Thomas A. Bielby
[1] The parties have two interim motions before this court. The applicant (A) seeks support, both child and spousal, and the respondent (R) seeks an access order and a severance of the divorce from the corollary issues, as well as the sale of the matrimonial home.
[2] The parties were married June 18, 1983 and separated January 31, 2009. There are three children, Connor, born April 10, 1996, Christian, born November 1, 1989, and Jeffery, born November 8, 1988. Christian resides with the R and the other two children with the A.
CHILD SUPPORT
[3] A child support order shall issue with respect to Connor. The real issue is determining the income of the R for support purposes.
[4] The A also seeks child support for Jeffrey. She submits that Jeffery has a learning disability and cannot carry a full course load while in university. He is currently 23 years of age and has only two credits remaining before he can graduate from the University of Toronto.
[5] It is noted however that Jeffrey took a full course load for the academic year 2011-2012. The R argues that his son’s disability simply requires him to be allowed extra time for exams and tests and certainly is not as extensive as the A suggests.
[6] The R’s opinion is corroborated by Jeffrey as filed with the court by the R, is Jeffrey’s affidavit sworn August 7th. In 2011 while carrying a full course load, Jeffrey worked as a teacher’s assistant, volunteered as a mentor and still made the Honour list. Since 2008 he has worked at part-time jobs while continuing in school.
[7] This summer Jeffrey is working as a parole officer and wishes to find a job when he finishes his degree.
[8] It is not my intention to make retroactive order. I will leave that to the trial judge. Further, the R has been providing the A with monies every month. There remains an issue of whether that money was sufficient. The R submits that he made 50% of his net pay available to the A and that he could not do any more. It is noted that from this money the A was required to pay the interest on the line of credit which was close to its limit of $564,000 at any given time. A small portion of the line of credit represents the remaining debt on the matrimonial home.
[9] I will not award support pursuant to the Child Support Guidelines for two children. Jeffery is able to contribute to his own expenses. But I will consider him a child at least for the short while and find that the parties have an obligation to support him until he completes his undergraduate schooling. He is not able at this time to completely withdraw from his parents’ charge. I while order a monthly payment for Jeffrey in the amount of $350 commencing August 1, 2012. This payment will represent a contribution to Jeffrey’s living expenses and recognizes that he will continue to contribute to his expenses.
RESPONDENT’S INCOME
[10] This is the most difficult issue. The R’s line 159 income declared income is as follows:
2007
$334,579
2008
$307,703.12
2009
$258,957
2010
$449,776
2011
$378,904
[11] The R argues his base salary is $210,000 and that the remaining income was from bonuses and the cashing in of RRSPs. He submits that he has no more RRSP’s available to draw upon. The R argues his support obligation should be determined using his base income and suggests his future income may be much less.
[12] The applicant argues that support ought to be based on the R’s 2011 line 150 income. She further submits that his income historically supports the continuation of such an income.
[13] The R has not filed a year-to-date income statement so I have no corroborating evidence as to his current income.
[14] For the purpose of interim spousal support I will endeavour to determine the current situation and make an order to get the parties to trial where the financial realities can be reviewed in detail.
[15] I do think that the A is entitled to the same standard of living as enjoyed by the R no matter how the R has been able to fund that standard i.e. bonuses and RRSPs. There is no issue as to entitlement nor has the R argued that the A should be contributing to her own income in a meaningful way. She would appear to have some limited part-time income as a teacher’s assistant at the rate of $18 per hour when and if needed.
[16] For the purposes of interim support I will fix the R’s income at $300,000 year, an amount which is less than the R’s average annual earnings over the last 5 years. It represents his base salary together with an amount attributable to bonuses and other income sources which he historically received. I will order spousal support paid at the rate of $7,500 per month which I believe is near the mid-range as calculated by the Spousal Support Advisory Guidelines (SSAGs) at that level of income. Support is to commence September 1, 2012, on the assumption that for the rest of the month of August the R will continue to split his net income.
[17] This order will be without prejudice to either or both parties to revisit the issue at trial.
[18] I will also require the R to pay the interest on the outstanding joint line-of-credit except for the portion attributable to the portion of the debt which relates to the matrimonial home. This portion will be the responsibility of the A.
CHILD SUPPORT QUANTUM
[19] Pursuant to the guidelines, child support of $2,364 per month is ordered payable by the R to the A for the support of Connor to which I add the sum of $350 for Jeffrey, commencing September 1, 2012.
INTERIM DISBURSEMENTS
[20] The A seeks an order for the payment of $60,000 in this regard. I decline to make such order. The R will be required to provide values for his assets and the A does not except such values she can revisit this issue with the court and provide estimates as to what it will cost to complete the required valuations.
MATRIMONIAL HOME
[21] This property at 3149 Tacc Drive Mississauga is worth approximately $900,000 and is occupied by the A and two of the children. The R asks that the court order the home sold. He also submits that his share of the equity should be paid to the A to allow her to obtain new accommodations. The R submits the property is too expensive to maintain and the proceeds of sale can be used to pay down the line-of-credit and allow the A to obtain more modest accommodations.
[22] The A does not wish the house sold and submits that a sale would be disruptive to both her and Connor. The argument to order an immediate sale is almost persuasive. The relationship is over and the remaining strings to that relationship need to be severed and both parties’ financial positions regularized. It has been 3.5 years since separation.
[23] There is some evidence however that both the A and Jeffrey have issues that might be adversely affected by a sale. I would expect Jeffrey to complete his schooling by the end of 2012. I will defer this issue to a date after December 31, 2012, when either party can put the issue back before the court. I expect the A to pay the expenses of the home from the support she will receive pursuant to this order.
RESTRAINING ORDER
[24] The R seeks an order restraining the A from communicating with his family. There are some communications filed as exhibits which are hateful and inappropriate. This fact was not denied by counsel for the A.
[25] I will not however make a formal restraining order but expect the A to stop such behaviour. If the problem continues it can be revisited. It seems to me the parties should only communicate with each other by e-mail and therefore a written record can be maintained which can be scrutinized if necessary.
ACCESS
[26] The R seeks access to Connor and submits that his access is sporadic and intermittent. He also submits that communicating is a problem. He lays the fault for this at the feet of the A. I see no reason why the R should not have access to Connor. The A submits that she has not impeded access but that she leaves it to Connor to arrange.
[27] The court cannot determine why there are such problems but recognizes that given Connor’s age he should have input into when he wishes to be with his father. Connor and his father should be able to communicate directly with each other.
[28] If the R chooses to he can purchase a cell phone for Connor to facilitate this communication. The phone is not to be used during school hours. Further the R should be able to communicate with Connor by e-mail and if he does not have Connor’s e-mail address it should be provided to him immediately.
[29] I will order reasonable access to include alternate weekends subject to the wishes of Connor and on reasonable notice. I would expect the A not to interfere with reasonable access arrangements.
DIVORCE/BENEFITS
[30] I will sever the divorce from the corollary issues. I will also order that pending trial, the R is to maintain his health and dental benefits as provided by his employer, for the A and the children as long as they continue to qualify as beneficiaries. If as a result of the issuance of a divorce judgment the A no longer qualifies for said benefits, the R shall obtain, at his expense, private insurance which provides similar coverage for the benefit of A.
COSTS
[31] If the parties cannot agree on costs both can make written cost submissions to me, within 14 days of the release of this endorsement, and the submissions of each are not to be more than 4 pages in total.
[32] IT IS ORDERED, ON AN INTERIM BASIS,
that the respondent pay to the applicant interim child support in the amount of $2364 per month for the child Connor, born, April 10, 1996, pursuant to the Child Support Guidelines based on an income of $300,000, commencing September 1, 2012;
that the respondent pay to the applicant interim child support in the amount of $350 per month, for the child Jeffrey, born November 8, 1988, commencing September 1, 2012;
that the respondent pay to the applicant for interim spousal support the sum of $8,000 per month, commencing September 1, 2012;
that the respondent shall have reasonable access to the child Connor, on reasonable notice, subject to Connor’s wishes. Reasonable access is to include alternate weekends and holiday time;
that the respondent shall be provided with Connor’s e-mail address for the purposes of arranging access. The respondent is permitted, if he chooses to, to provide a cell phone to Connor to facilitate access, said phone not to be used during school hours.;
that the divorce shall be severed from the corollary issues and shall proceed as a over the counter motion;
that the he respondent shall maintain his employment health and dental benefit coverage for the benefit of the applicant and the children who qualify as beneficiaries. If as a result of a divorce judgment obtained by the respondent the applicant no longer qualifies as a beneficiary under the employment health and dental benefit plan, the respondent shall obtain similar private coverage naming the applicant as a beneficiary; and
that the parties can make costs submissions in writing within 14 days of the release of this endorsement. The submissions are to be no more than 4 pages each.
Bielby J.
Released: August 13, 2012
COURT FILE NO.: FS-12-1126-00
DATE: 20120813
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DAWN STRONG
APPLICANT
- and –
ANTHONY STRONG
RESPONDENT
ENDORSEMENT
Justice Thomas A. Bielby
Released: August 13, 2012