Court File and Parties

COURT FILE NO.: FC-12-1157

DATE: 2012/11/26

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: GERARDINE DOYLE, Applicant

AND

BRIAN DOYLE, Respondent

BEFORE: J. Mackinnon J.

COUNSEL: H. Hunter Phillips, for the Applicant

Diana Carr, for the Respondent

HEARD IN OTTAWA: November 15, 2012

ENDORSEMENT

[1] The applicant moves for interim child support for two children and for interim spousal support for herself. The parties agree that the order to be made will commence effective July 1, 2012 without prejudice to the subsequent determination of the issue of retroactivity prior to that date, and with credit to be given to the respondent for amounts already paid from that date forward. The respondent moves for an order for sale of the matrimonial home owned by him. The parties agree that the determination of this issue will be without prejudice to the respondent’s right to claim occupation rent at a future date if so advised.

[2] The applicant agrees to make the disclosure requested at paras. (j), (k) and (l) in the respondent’s notice of motion on an ongoing basis. She also agrees to request production from her sister of the records requested with respect to RESP accounts held by her sister in favour of the parties’ children. Both parents agree that they will contribute in proportion to income towards tutoring costs incurred for their son as and when they are incurred, with proper notice and receipts to be provided.

[3] It is also agreed for the purpose of the motions that the respondent’s annual income is $161,000 and that he will pay child support for the younger child in accordance with the table amount for that income.

[4] All of these terms shall be included in my order.

[5] The first issue between the parties relates to the applicant’s income. She is an architect but was out of work at the date of separation (July 2011). During the first part of 2012 she obtained a small project for which she was paid $18,750. Effective July 1, 2012 she obtained a 6‑month contract which will pay her $42,500 to the end of 2012. That contract may be renewed but to date, has not been.

[6] The two issues in relation to the applicant’s income are these. Should the support issues be determined treating her income for 2012 as the $61,250 which she actually earned, or at the annual rate of the six‑month contract which is $85,000. The second issue is the amount of business expenses to be deducted from her earnings in 2012.

[7] The applicant submits that her actual 2012 income should be used. The respondent submits that because the order sought is agreed to commence as of July 1^st, the annual rate of income from that date forward should be used. The circumstances in this case are unusual. Not only is this an interim award, it is in effect a time limited interim award given that the commencement date will be July 1, 2012 and that there is a high probability of a further adjustment being required effective January 1, 2013 having regard to the uncertainties surrounding the applicant’s income. I am of the view that the actual 2012 income should be used for the purpose of child support and section 7 expenses for both parents. Actual annual income is the basis of the Child Support Guidelines. The fact that the mother has been earning at a significantly higher rate for the second half of 2012 is not a factor that, in my view, should increase her proportionate contribution to Kerry’s post‑secondary expenses for this fall term.

[8] Although unusual, it is manageable to use different income figures for spousal support. For the six‑month period from July 1^st to the end of 2012 as part of an interim award it makes sense to look at the actual cash flow abilities of the spouses. This is especially so in this case where it appears that both parties are operating at a deficit. I accept the business expenses as claimed by the applicant for the purposes of this motion. She has not been cross‑examined on them. It is clear that the lower amount proposed by the respondent related only to the amount earned by the applicant in the first half of the year. In addition, I do not find that the terms of her contract are such that the other contracting party covers these expenses for her. Under the contract, she is provided with use of office space and telephone and Internet access when she is on its premises. I do order the applicant to produce copies of reimbursements received by her pursuant to paragraph 2(b) of her contract, within 30 days of the end of the contractual period.

[9] Accordingly I would determine the proportion of section 7 expenses on the basis of the mother’s income being $35,203 for 2012. I would determine the applicant’s entitlement to spousal support for the period in question based on her having a monthly income after related business expenses of $4,913.

[10] The next issue relates to whether the respondent should pay any child support for Kerry during the four summer months when she is not in attendance at university in Halifax. The mother asks that he do so. The father disagrees because historically Kerry has worked the entire period at a summer camp and does not actually reside with either parent. The applicant maintains that Kerry was with her for 43 days during the summer of 2012 and that she drove Kerry back and forth 25 times between Ottawa and camp. In my view, this still does not entitle the applicant to the amount of support for Kerry that she is requesting. Rather, it equates to more like a month and a half of residency. Accordingly, I order that the respondent pay Table support to the applicant for two children for 1.5 months and for one child for 10.5 months of the year, but leveled out into the same monthly amount each month.

[11] The applicant claims that Kerry’s post‑secondary education costs total $27,925 per annum. The respondent claims that they are only $23,400. Having reviewed and compared these, I accept the applicant’s calculation. Her list is more complete and includes cell phone for 12 months, not eight, books for two semesters not one, dental expenses, an activity fee and some shipping costs.

[12] Each parent shall pay their proportion of these expenses: the applicant by way of direct payment and the respondent by way of monthly payment to her. After the information with respect to the RESP account for Kerry is available, the issue of respective parental contributions to her post‑secondary education expenses shall be revisited.

[13] The parties disagreed with respect to some of the credits claimed by the respondent. The applicant says the credit should be $10,499.57 whereas the respondent claims $14,233. No credit should be given for the amounts paid for renovations or legal fees. Nor should credit be given for the respondent’s share of the cost of a joint life insurance policy or his own line of credit. Both parties paid the interest on the joint line of credit in August. The applicant paid first. On the assumption that the payment made by the respondent was credited against principal not interest he shall be given a credit for it in the equalization payment calculation. If, on the other hand, it means that the applicant will have a month “holiday” in making the interest payment then it should be credited against support. I leave the specific amount of the credit to counsel to calculate in accordance with these directions.

[14] It will be readily apparent to counsel that I have not particularized any amount for support. I do not have a SSAG calculation that conforms to the conclusions reached in these reasons. I would ask counsel to forward this to me for my consideration.

[15] The respondent is the registered owner of the matrimonial home. He wants to sell it. He submits that it is too expensive for the parties to continue to carry or for the applicant to afford on her own. I agree with the respondent that given the parties’ financial circumstances, the home should be sold. Were it not for the fact that the applicant has pleaded a constructive trust claim in relation to the house, I would have ordered the sale. There is no valid reason to postpone the sale on account of the best interests of the younger child. In my view, the applicant’s desire to offer to purchase the home after the equalization payment is established is not, on its own, a sufficient reason to prevent the sale. Were that the only consideration I would have allowed the applicant a period of time to complete disclosure and to make an offer to purchase to the respondent, failing acceptance of which, the house would be listed for sale. Without intending to comment on the merits of her claim, I do suggest that the applicant give careful consideration to whether or not it is probable that she will establish a proprietary interest as opposed to a monetary interest if she is successful in her claim for unjust enrichment.

[16] I expect that there will be a change in circumstances affecting spousal support commencing January 1, 2013 that will need to be addressed. I will remain seized for that purpose. However, the amounts of support and section 7 expenses that will be ordered will continue to be paid until a subsequent order is made.

J. Mackinnon J.

Date: November 26, 2012