BARRIE COURT FILE NO.: FC-11-674

DATE: 20120813

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: WENDY ANDERS, Applicant

AND:

JOHN ANDERS, Respondent

BEFORE: EBERHARD, J.

COUNSEL:
B. DeGoldi, Counsel, for the Applicant

D. Manning, Counsel, for the Respondent

HEARD: August 9, 2012

ENDORSEMENT

[ 1 ] The parties separated in March 2011. There was a consent order for spousal support in July 2011. There are issues as to the adequacy of volunary support payents made before the order and also the precise amount. These issues need not be addressed at an interim stage as readjustment can occur as part of final resolution or trial. Temporary order to issue for spousal support of $2,500 per month payable by the Respondent Husband to the Applicant Wife commencing March 1, 2011 to the order of July 2011.

[ 2 ] The Respondent Husband received a layoff notice in March 2012 and an option for a small severance package rather than anticipate the end of the layoff in 35 months. He chose the severance package. This was not unreasonable.

[ 3 ] He paid support in accordance with the July 2011 order which was based on estimated or imputed income of $100,000 for the Respondent Husband and $15,000 for the Applicant Wife, until June 2012 then reduced his payment. The parties do not agree as to the quantum of spousal support from July 1, 2012.

[ 4 ] The Applicant Wife points to a pattern of income earning by the Respondent Husband that had long been generally level or upwards despite several job changes, all in management level marketing. She doubts his sincerity in seeking similar employment and points to his comfortable lifestyle with a home purchased with funds advanced by his family. She argues that his annualized income including his employment lost in March 2012, EI and commissions from his new commissioned employment should be fixed at no less than $71,000 and imputed higher than that as his average income is more in the $150,000 range.

[ 5 ] The Respondent Husband points to job search in similar occupations, loan documentation that family support is a loan due in February 2013 and he now has obtained employment in his field but based entirely upon commission such that it can be expected that it will take some time to develop his clientele and earn income. He pays his own expenses. He anticipated that in 12 months his annualized income may be $50,000.

[ 6 ] I pause now to make general observations:

[ 7 ] Without the benefit of trial to assess credibility, there does not appear to be a significant conduct or bad faith component in the issues before me. Clearly there is vastly less income actually flowing than either was accustomed to during their 33 year cohabitation.

[ 8 ] It is very difficult for separated people, who have for many previous years been financially interdependent, to resolve temporary arrangements when the expenses generated by separation are increased but the financial resources much reduced. Such circumstances naturally give rise to suspicion and mistrust, fear of being cripplingly impoverished without recourse, fear of being cripplingly overburdened without means to meet the obligations faced. No amount I could order on the evidence before me can be adequate for the Applicant Wife who is moving forward as well as can be expected in achieving some self-sufficiency. No amount I could order on this evidence before me can be comfortably paid by the Respondent Husband whose means of earning his usual income has been impacted by the economy.

[ 9 ] On a temporary motion, absent opportunity to assess the credibility of parties and in the face of a patent reduction of actual income flowing, there must be some caution about imputing income. My better function is to fairly distribute the distress of the current income position while also establishing a mechanism for a fair distribution of improved income when it goes up. All the while I must consider whether the effort of the payor has been consistent with what he would do if he were conscientiously trying to support himself and his family. In intact families splendid resourcefulness is often observed to keep the family going when times are tough. Similar effort must be demonstrated in circumstances of separation where the estranged but dependent spouse doubts the commitment to share in a quantum required by law. It is naturally hard to agree to a figure. That is why these interim motions are sometimes necessary even where the parties and counsel are trying hard to settle. That is why these orders must be temporary, because the court is being asked to fashion an answer to a dilemma when no answer is apparent. I will set out a plan which will give some structure to the expectations.

[ 10 ] The findings of fact that form my answer include:

• The support paid to June 2012 reflects the income of the husband from employment and severance package from Sphere 3D. There is no purpose in including that income to find an annualized figure for 2011 upon which support should be paid;

• The Respondent Husband now has employment based on commission. He has provided a spread sheet to predict when he may likely earn income. No details are before me to know whether EI will be available to him until he generates income from this commission based employment;

• The income earning trajectory of the Respondent Husband has been consistently even or upward even though he has left employment to look for new work several times in the past;

• He negotiated a non arm’s length loan from sympathetic family members in anticipation of repayment due in February 2013 signifying a certain confidence in a turnaround in his situation;

• He predicts he will be at $50,000 in his 12 th month (June 2013) but by the 7 th month he predicts net income of $1430, gross revenue $3,080. Many of the legitimate business expenses also meet personal needs and are unlikely on analysis to be deducted for family law purposes.

[ 11 ] The current consent order is for $3099 based on imputing/estimating the Respondent Husband’s income of $100,000 and imputing the Applicant Wife’s income at 15,000.

[ 12 ] The Respondent Husband comes to court seeking reduction having paid while he had income. Although the Applicant Wife cannot afford a reduction whatsoever, the Respondent Husband needs a break to reorganize but also an expectation to keep him moving forward.

[ 13 ] As this file moves toward settlement conference, the emerging circumstances of employment can be developed and assessed for a more reliable SSAG based calculation.

[ 14 ] Temporary Order to Issue requiring the Respondent Husband to pay spousal support on July 1 and August 1, 2012 of $400, on September 1 and October 1, 2012 of $600, on November 1 and December 1, 2012 of $800 and from January 1, 2013 and each month thereafter until further order or agreement of $1,000.

[ 15 ] The Respondent Husband shall produce front and back copies of processed payments on the loan due February 2013 within 15 days of processing.

[ 16 ] The Respondent Husband shall report monthly revenues that exceed his projections by more than 10% and income from any source other than his commission income within 15 days of month end.

[ 17 ] Support Deduction Order to issue. To avoid administrative delay this court recommends the parties arrange for direct payment of July and August payment now owing and report the payment to FRO.

[ 18 ] Costs may be addressed at the settlement conference or, on the behest of either party, by written submission of no more than 2 pages (together with offers and bill of costs) within 15 days of release, through the judicial secretaries, 10 days for the response and further two days for reply.

EBERHARD, J.

Date: August 13, 2012