SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FC-12-2272
DATE: 2013-03-27
RE: Shannon Eddy (Smith) – Applicant v. Derek Smith - Respondent
BEFORE: Mr. Justice Paul Kane
COUNSEL: Susan Galarneau, for the Applicant
Larry Segal, for the Respondent
HEARD: February 22, 2013
ENDORSEMENT
RELIEF SOUGHT IN THE MOTIONS
[1] Ms. Eddy presented a motion for ongoing and retroactive interim child and spousal support, disclosure from Mr. Smith and the requirement that he keep in place medical and dental coverage for she and the children together with life insurance with her as named beneficiary.
[2] Mr. Smith sought adjournment of the applicant’s motion until Ms. Eddy provided the disclosure required by the court on November 2, 2012, or in the alternative, an order as to interim spousal and child support and disclosure as articulated in his Notice of Motion.
BACKGROUND
[3] The parties began living together in 1993. They married one another in 1996 and decided to separate in 2010. They continued to live under the same roof until the sale of the matrimonial home in 2011.
THE CHILDREN AND CHILD SUPPORT
[4] The parties have two children, a daughter currently 14 years of age and a son who is 11 years old. Since separation, the children had been alternating five days with each parent until December, 2012. Mr. Smith has been paying child support at the rate of $558/month based on the children spending equal time with each parent.
[5] The children began experiencing difficulty dealing with the transition with their father, his new partner and her two children. Specifically, the children began objecting to spending time with their father. That issue may or may not resolve over time. At the moment, however, the children are not residing 50% or 40% of the time with their father. Mr. Smith makes no mention of this change to the amount of time the children are with him in his February 15, 2013 affidavit.
FINANCIAL CIRCUMSTANCES OF THE PARTIES
[6] Mr. Smith is employed full time as a Federal civil servant with an annual income of $86,600. He resides with his partner and her children about which there is little information.
[7] Mr. Smith alone, or with his partner, purchased a house in the summer of July, 2012 on which there is a $450,000 mortgage. He obtained the signature of his wife on the spousal support agreement to permit him to qualify for the above mortgage and then halted the spousal support he had been paying Ms. Eddy since 2011 after he purchased the house in July, 2012. The amount of that interim spousal support is unknown. He does not deny installing a $25,000 pool on this property since purchasing the home.
[8] With her share of the proceeds of sale of the matrimonial home, Ms. Eddy bought a home on which there is a mortgage of some $190,000.
[9] In opposing spousal support, it is alleged that Ms. Eddy voluntarily resigned full time employment in 2012 which paid her $50,000 annual salary. This is inaccurate speculation. Ms. Eddy lost a contract with Hillel Academy and resigned from seven part time positions she held with other schools in order to begin a one year university course in the fall of September, 2012.
[10] Ms. Eddy has withdrawn some $10,000 from her R.R.S.P. since Mr. Smith stopped paying spousal support to her. Her line of credit is currently some $17,000. She took the children to Cuba in March, 2012 and went to visit relatives in British Columbia in July, 2012.
[11] In the alternative, Mr. Smith submits that if obligated to pay spousal support, this court should impute income to his wife and award interim support at the low end.
[12] Mr. Smith states in his affidavit dated February 14, 2013, paragraph 33:
I am not refusing to pay Spousal Support to the Applicant; however, to date, she has failed and refused to provide the requisite disclosure regarding her employment status and as such, I am unable to consider what the appropriate spousal support amount would be.
[13] Mr. Smith confirms his employment benefits continue to cover his wife and children and that his employment life insurance remains in place. There will be an order to maintain that coverage.
[14] Ms. Eddy began a one year B.Ed. program in September, 2012 to be completed in April or May of 2013. Mr. Smith complains that his wife dropped out of a Master’s program in 2001 but omits to mention that this apparently occurred shortly after Ms. Eddy experienced a miscarriage and then became pregnant two months later. He indicates Ms. Eddy was accepted into a teachers study program for the fall of 2008 but decided not to pursue that program.
[15] Mr. Smith’s employment was interrupted on a few occasions during their marriage, during which he pursued education while on employment insurance and became the stay at home parent for one year in 2001.
[16] Mr. Smith has over the years been a very involved parent. That said, the hours and nature of Ms. Eddy’s employment since the birth of the children has permitted her to be at home during most of the regular work week. Her career or pursuit of teaching qualifications in her field has been interrupted by the fact that this couple had children, a miscarriage and some three interruptions in the employment of Mr. Smith. She has worked regularly during the marriage but it has been part time and for the most part, outside school hours and on weekends. Otherwise, she has been the principal parent at home.
[17] Mr. Smith and Ms. Eddy each have a Bachelor’s degree in music. As stated, Mr. Smith obtained some additional short term qualifications during the marriage.
[18] Ms. Eddy worked during the marriage and since then as a self-employed or contract piano and music teacher. She taught piano to students from her home and has held contract music positions at private schools more recently. Her present income is limited to private piano lessons and what she may be able to earn this coming summer.
[19] Ms. Eddy states that while studying since September, 2012, she has maintained some ten private piano students which produce income of some $200/week, or $10,400/year. That presumes however that private piano lesson to children continues 12 months a year which would be unusual and is denied by the applicant. Ms. Eddy argued that her current annual income should be calculated at the level of $15,000, or $24,000 at the maximum.
ANALYSIS
[20] Ms. Eddy currently seeks sufficient qualifications in her chosen field of music to permit her to secure regular and hopefully full time employment including benefits, namely the same kind of security enjoyed by Mr. Smith. Her current enrolment in the B. of Ed. is a realization of the interrupted program of studies she planned to undertake in 2008. This is not a case of a spouse being intentionally under employed.
[21] Ms. Eddy’s employment career was restricted and thus compromised during the marriage for the sake of the family and choices she and her husband made regarding the children. Her return to school now versus the plan to do so in 2008 relates to timing. It is artificial to accept that she had that opportunity in 2008 and is now intentionally under employed because this couple separated in the interim.
[22] In anticipation that Ms. Eddy will complete her current studies in May, 2013, continues in the interim to teach piano privately, will find some part time employment in the summer months of 2013 before the start of school in September and will be able to find employment starting in September of 2013; I will assume and impute an annual income to her on this interim motion of $20,000.
[23] Using annual income levels respectively of $20,000 and $86,600, this court determines that Mr. Smith shall on an interim basis pay Ms. Eddy each month:
(a) child support monthly, on the first of each month, commencing January 1, 2013, in the amount of $1,252 while the children continue to reside primarily or exclusively with their mother,
(b) if and upon the children residing 50% of the time with each parent, child support as offset, to be paid in the amount of $946 per month.
[24] Divorcemate calculations using annual incomes of $20,000 to the payee, $86,600 to the payor who is also paying child support of $1,252, indicate a low, medium and high of $369, $654 and $979 respectively. On an interim basis Mr. Smith shall pay monthly spousal to Ms. Smith in the amount of $700 per month on the first of each month for the period December 1, 2012 until August 1, 2013, in anticipation that Ms. Eddy will find employment commencing in September, 2013.
[25] Arrears claimed will not otherwise be dealt beyond the payments ordered on this interim motion.
PRODUCTIONS AND DISCLOSURE
[26] Ms. Eddy provided answers to some of the disclosure requested on February 15, 2013. Ms. Eddy is to serve a current form 13.1 financial statement on the respondent no later than April 5, 2013.
[27] Mr. Smith apparently has not responded to the disclosure requests made to him.
[28] Each party shall complete disclosure to the other no later than April 12, 2013, as previously ordered on November 2, 2012.
COSTS
[29] Ms. Eddy has been more successful on this motion and normally would be entitled to her costs on a partial indemnity basis. If the parties cannot agree on costs, brief written submissions thereon should be provided within the next 30 days.
Kane J.
Date: March 27, 2013
COURT FILE NO.: FC-12-2272
DATE: 2013-03-27
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Shannon Eddy (Smith), Applicant
AND
Derek Smith, Respondent
BEFORE: Kane J.
COUNSEL: Susan Galarneau, for the Applicant
Larry Segal, for the Respondent
ENDORSEMENT
Kane J.
Released: March 27, 2013