Court File and Parties

Court File No.: 06-FL-450-1
Date: 2012/09/07
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CAROL ANN SUTCLIFFE BENSON, Applicant

AND

MAYNARD GEORGE BENSON, Respondent

BEFORE: McNamara J.

COUNSEL:
Lisa Sharp, for the Applicant
Philip W. Augustine, for the Respondent

HEARD: August 29, 2012

ENDORSEMENT

[ 1 ] On this motion the applicant seeks the imputation of income to the respondent, an order for retroactive spousal support and varying the spousal support order of Mackinnon J. after trial, a re-calculation of the equalization ordered by Mackinnon J., and an order that the respondent continue to provide the current level of medical benefits to the applicant.

[ 2 ] The respondent seeks an order dismissing the motion and incidental orders flowing from that disposition.

[ 3 ] The applicant’s counsel conceded in argument that relevant to all areas of the relief sought by the applicant is an allegation that the respondent never made the equalization payment of $165,192.12 ordered by Mackinnon J. at trial. Instead, it is alleged, the respondent filed for bankruptcy within months of the decision in an attempt to avoid the equalization payment.

[ 4 ] The applicant also concedes that near the end of the bankruptcy proceedings a motion was brought in this court regarding the bankruptcy and its effect, if any, on the equalization issue. Ray J. of this court found it was Mackinnon J.’s intention to impress the respondent’s pension with a trust in favour of the applicant to the extent of any unpaid equalization. On that motion a key issue was what, if any, equalization remained unpaid.

[ 5 ] Ray J. at para. 21(c) of his endorsement dealt with that issue as follows:

(c) a reference be conducted by the Master after the Respondent’s discharge in bankruptcy in order to determine the unpaid value of the Respondent’s net equalization payment as found by Mackinnon J. that up to 50% of any pension payments payable by OMERS to the Respondent shall be paid to the Applicant commencing October 15, 2012 until the amount found payable on the reference, without interest, is paid in full. The amount shall be grossed up to take into account the taxable nature of the pension payments and to ensure that the amount found payable on the reference will be paid from the OMERS net of taxes;

[ 6 ] That directed reference was never arranged by either of the parties. Clearly it must be done. Whether equalization has taken place is central to, for example, the issue of whether or not the respondent’s pension has in large measure been equalized. The judgment of Mackinnon J. provided that the pension be dealt with as property and equalized. If that has occurred, as the respondent alleges will be demonstrated on the reference, then the respondent would seem to have a persuasive argument that any spousal support claim the applicant wishes to advance will be considered on the basis that the applicant has already received a large portion of the pension and that part of the pension is not to be included in the respondent’s income for future support purposes.

[ 7 ] During the course of the motion I also recommended to the parties that mediation on this point with an experienced family law mediator who could examine the equalization issue and others that flow from it, might be worth considering as a more timely and less costly option.

[ 8 ] It is also clear from the lengthy and detailed materials filed on this motion that there are significant factual issues between the parties, related to matters such as whether or not there should be an imputation of income to either party at various points in time. These factual issues will require, in my view, findings of credibility that are not possible on the basis of written materials before the court.

[ 9 ] The applicant’s counsel requested an order for interim spousal support and an order that the respondent continue to provide the prior level of medical benefits pending the outcome of the reference/mediation.

[ 10 ] In terms of interim spousal support the applicant argues that her affidavit evidence demonstrates she is in dire need, the respondent has the ability to pay, and in consequence a reasonable amount of spousal support ought to be awarded pending a determination of this matter. The order of Mackinnon J. provided that spousal support was to terminate on September 1, 2012, but subject to the right of the applicant to apply for a variation order that could continue support if there were changed circumstances. The applicant also argues that the order for spousal support, including the termination date, was, again, based on Mackinnon J.’s assumption that by that date a significant portion of the equalization would have been paid with perhaps some modest balance outstanding.

[ 11 ] The respondent argues that whether or not full equalization has been paid, it is academic to the support issue because once the reference has taken place, any sum of money found to be outstanding is secured, pursuant to the order of Ray J., by the respondent’s pension. In those circumstances there would only be roughly 23% of the respondent’s pension included in income for purposes of calculating any ongoing spousal support, and if that is so there will be no spousal support payable.

[ 12 ] In my view, based on a careful reading of the materials, it is arguable that Mackinnon J.’s decision as to the termination of spousal support was made on the assumption that a significant portion of equalization had been paid. In those circumstances spousal support ought to continue at its present level until that issue is determined. To avoid prejudice to the respondent, in the event it be determined that there is as of September 1, 2012, no entitlement to ongoing spousal support, in those circumstances the respondent would be entitled to a credit for any spousal support paid pursuant to this interim order.

[ 13 ] In terms of medical benefits, the applicant and the respondent both appear to have significant health issues. Until very recently the applicant was fully covered under the respondent’s medical benefits plan as was ordered by Mackinnon J. That coverage ended and was replaced with a less generous plan several months ago.

[ 14 ] It is the position of the applicant that this was further to a course of conduct by the respondent over the years whereby the respondent continuously threatened to remove the applicant from his plan. The respondent’s position is the city changed its position vis-à-vis providing coverage to an ex-spouse, and he got the best coverage he could to assist the applicant while he was still liable for support.

[ 15 ] I have directed spousal support to continue on an interim basis as indicated above. Corollary to that the respondent will provide the same level of medical coverage during the period of the interim spousal support order. The respondent will attempt to obtain input from his former employer on the issue of why their position vis-à-vis coverage for former spouses apparently changed subsequent to the date of trial. Any amount of monies owing from the respondent to the applicant under this heading from the date the plan changed forward can be calculated as part of the reference/mediation.

[ 16 ] If the parties are unable to agree on the question of costs, I will receive brief written submissions.

McNamara J.

Released: September 7, 2012

ONTARIO SUPERIOR COURT OF JUSTICE RE: CAROL ANN SUTCLIFFE BENSON, Applicant AND MAYNARD GEORGE BENSON, Respondent, BEFORE: McNamara J. COUNSEL: Lisa Sharp, for the Applicant Philip W. Augustine, for the Respondent ENDORSEMENT McNamara J.

Released: September 7, 2012