SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-11-374004
DATE: 20120921
RE: CAMERON v. CAMERON
BEFORE: WHITAKER, J.
COUNSEL:
H. Niman, for the Applicant
D.S. Jarvis, for the Respondent
HEARD: September 20, 2012
ENDORSEMENT
Overview
1 . This is a motion and cross motion.
2 . The applicant seeks interim spousal support, arrears, responses to the Request for Information, answers to undertakings, an order to preclude depletion of property, an order precluding the respondent from entering the matrimonial home and costs.
3 . The respondent does not contest an order for interim support, but disagrees with the proposed amount.
4 . The respondent opposes an order for arrears, asks that a payment made on August 21, 2012 be taken into account in future litigation, that the issue of Divorce be severed from the corollary issues and costs.
Interim Support
5 . The marriage lasted 39 years.
6 . The parties had a traditional marriage.
7 . The applicant suggests a valuation date of April 15, 2010. The respondent suggests September 13, 2004.
8 . The respondent was and remains the principal and owner of a family business.
9 . The applicant was responsible for all household and domestic responsibilities and worked at the family business.
10 . Since the beginning of this litigation, the respondent has stated his annual income as approximately $180,000.
11 . The respondent now suggests that his annual income is $360,000.
12 . On August 31, 2012, the respondent obtained a Calculation of Income Report from Duff &Phelps for the years 2008 to 2011.
13 . The Report dealt with two scenarios. In both scenarios, the respondent’s income for Guideline purposes was determined to be $608,664. The SSAG Guidelines provide for a monthly payment of $25,187 for this level of income where the division of net disposable income is about 50%. There is no hard cap.
14 . Applying the guidelines at a 50% split of NDI, the respondent suggests a monthly payment of $14,824 for an income of $360,000 and in the alternative, $19,389 for $360,000 plus gross up for unreported corporate earnings.
15 . In my view the base income to be used for purposes of the monthly calculation should include a figure for gross up which represents the true value of funds available to the respondent. This calculation should not be driven by cash flow but rather a determination of the amount of funds available and at the disposal of the respondent.
16 . As suggested by the applicant, the appropriate monthly payment is $25,187.
Retroactivity
17 . With respect to retroactivity, the test is not prejudice and there has already been significant delay in moving this matter forward. The respondent has yet to provide an evaluation of the family business.
18 . Arrears shall be paid from January 1, 2012.
Other Issues
19 . The $25,000 payment to the applicant of August 21, 1012 shall be taken into account at a later date dealing with support or property.
20 . Requests for Information, and answers to undertakings shall be provided by the respondent as requested by the applicant, within 30 days.
21 . Having regard to the respondent’s conduct in relation to an earlier attempt to sell matrimonial property, the order to preclude depletion is granted.
22 . The respondent has agreed to maintain the applicant’s insurance plan or to pay for a replacement plan if necessary. With this agreement, the Divorce is severed from the corollary issues.
23 . No order regarding access to the matrimonial property is needed.
24 . Costs submissions of less than three pages not including a Bill of Costs may be made within two weeks.
25 . Order accordingly.
Whitaker J.