SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: D1194/12

DATE: 2013-04-26

RE: Andrew Webb, applicant

AND: Julie-Ann Pearce, respondent

BEFORE: Mr Justice Ramsay

COUNSEL:
Ms Jennifer L. Cooper for the respondent, moving party

Mr Jerry J. Chaimowitz for the applicant, responding

HEARD: 2013-04-24 at Hamilton

ENDORSEMENT

[1] The parties lived together from 2002 to 2011. They were married in 2005. They have one child, a son, born December 28, 2005. The wife asks for interim child support, s.7 expenses and spousal support.

[2] Both parties want me to make a retroactive order. In these circumstances I think it appropriate to make an order retroactive to the date of separation, and to give the husband credit for voluntary payments made since separation. The husband has paid $50,000 voluntarily since the date of separation, which is November 15, 2011.

Calculation of the husband’s income

[3] The husband is an officer in the RCAF. He is based in England. He is paid in Canadian dollars and he pays Canadian income tax as a resident of New Brunswick. He earns a salary and an air crew bonus, both of which are included in his line 150 income. He also earns a living allowance to compensate for the cost of living in the UK. He would not be given this allowance if he were posted in Canada.

[4] The husband is not taxed on this amount. The husband says that this amount should not be included in his income. The wife says that it should be included. She cites McGouran v. Connelly, [2006] O.J. No. 998 (CA) in support of her argument.

[5] I take from that case, and from s.20 of the Guidelines, that the court does not adjust income to take into account cost of living in different countries, and that the court cannot impute a lower amount of income than is actually earned. I agree with the husband’s submission, however, that this particular allowance is not income for the purposes of the Child Support Guidelines.

[6] S.16 of the Guidelines provides as follows:

16. Subject to sections 17 to 20, a spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III.

[7] The allowance in question does not meet this definition. It is not analogous to undeclared income. Undeclared income should be declared under “Total income.” The allowance compensates the husband for living in England, where, as a condition of his Canadian government employment, he is required to live. It does not result in any benefit to him. The same Canadian government has calculated the required amount and does not consider it to be income under its own law. It is not a question of imputing to the husband less income than he makes. This allowance is not income in the first place.

[8] Accordingly, I find the husband’s income to be $123,391.87 for 2012, resulting in a table child support amount of $1063 per month. The husband is content to pay this amount retroactive to November 15, 2011, even though his 2011 income is somewhat less.

Section 7 expenses

[9] The child of the marriage was born 2005. By age two and a half he was diagnosed with Expressive Language Disorder. In 2008 he was diagnosed with Pervasive Developmental Disorder Not Otherwise Specified. The diagnosing psychologist, Dr McDonnell, explained that this diagnosis applies to a patient with mild symptoms on the autism scale. On the standard diagnostic test for autism, the child was rated above the cut off for Autism Spectrum Disorder on the communication scale and below the cut off on the reciprocal social interaction scale. Both scales combined produced a score in the range for Autism Spectrum Disorder, below the range of scores for classic autism. The paediatrician, however, noted in 2009 that the child, then age 4, had made remarkable gains since 2008. From his report:

Dr Paul McDonnell’s assessment was that his expressive language was under 12 months with fine motor development at 39 months, receptive language was age appropriate at 36, cognitive at 36 and there were some delays in gross motor development as well as in personal social development. So the best fit was felt to be autistic spectrum disorder although he was more in keeping with a diagnosis of PDD NOS rather than autism. Since then, he has made remarkable gains. Now at the age of close to four, Keagan attends daycare and gets along really well with other children. He is still receiving 20 hours of intervention through autism program. Toilet training is complete. Speech is in full sentences. He still struggles with clarity on and off but this is not a big issue. Mom states that this is also improving. Play skills are age appropriate. Keagan was very friendly and interactive today through the whole assessment. Behaviour is not an issue. He eats well, sleeps well and is certainly doing very well. I must say, that by today’s assessment, I would not have labelled him autistic.

As you know, there are a proportion of children who do get labeled as autistic spectrum disorder but behave like Keagan. This population are provided the label in order to give the child the best opportunity for developmental interventions, since we know that they work. So this is the category that Keagan originally fit into. Julie is no longer comfortable with the label and I certainly understand her point of view. So she would like to leave the autism program and continue to receive speech and language services and early interventions services, all of which she is already getting. … I think Keagan can be taken off the ABA services so that it can be made available to some other child. Julie was agreeable to this …

[10] The wife did not provide the court with the paediatrician’s report. In 2012, after the start of the litigation, another psychologist retained by the wife diagnosed Autism Spectrum Disorder and ADHD. His observations and recommendations make it clear that whatever label is attached to this little boy, his developmental delays are not the most serious. His intelligence was measured in the average range. At this point, it cannot be said that the child is autistic. At most he may be living with Autism Spectrum Disorder, and even that diagnosis is questionable.

[11] The mother claims a contribution to the following s.7 expenses.

Tuition for Burlington Christian Academy
$11,266

Educational Assistant
$13,600

Speech language pathology
$ 4,500

Extracurricular sports and activities
$ 1,350

Transportation and child care
$ 6,420

Summer tutoring
$ 1,350

Summer camp
$ 1,350

Total
$39,836

[12] As a whole the expenses strike me as wildly unrealistic for this family.

[13] In particular, the wife proposes to spend almost $25,000 for a private school and an EA when she could have the same education, with an EA, for free from the school board. No doubt the public schools have bigger classrooms, but that is hardly a concern when your child has an EA assigned specifically to him or to him and a small number of other children. The husband agreed to put the child in the Christian school initially, but at that time the other expenses were not contemplated, in particular the EA, who costs more than the school tuition. The husband was not consulted about these other expenses.

[14] Transportation is not an extraordinary expense. Child care is an extraordinary expense, but $6,420 a year to the child’s own grandparents, with whom he lives, strikes me as excessive. The amounts for extracurricular sports, summer tutoring and summer camp also strike me as excessive when taken as a whole, in particular for a seven-year-old. There may well be some scope for help with speech language pathology, since this is the child’s main identified problem. I note that the wife is actually trained in ABA/IBI, which is a therapy for children with autism symptoms. There is no doubt some need for extraordinary expenses for this particular child. At this point, in the context of a motion for interim support, I think the best I can do is arrive at a global figure that the family can afford and apportion to the father his fair share, (about 70%) taking into account his income and the wife’s, which is about $58,000 a year. The wife can then spend it as she deems fit, choosing priorities in accordance with her views of the child’s needs. A reasonable amount for the father to pay in my view is $550, which is, after all, more than 50% of table child support.

Spousal support

[15] As I have noted, the husband earns about $123,000 a year and the wife about $58,000. She educated herself during the marriage, but devoted herself to the care of the child as primary caregiver. The parties each got $50,000 from the sale of the matrimonial home and the wife will get a share of the husband’s pension one way or another. If it is split, she will get $136,000 in due course. The wife interrupted her earning career to devote herself to the care of the child. She also upgraded her education by getting a degree in social work. The parties agree that spousal support is payable, but not how much.

[16] I do not need to decide in view of my treatment of the remaining question.

Interim set off of spousal support against the prospective equalization payment

[17] The husband proposes that spousal support be set off on an interim basis against an equalization payment that may be forthcoming from the wife. The draft net family property statement prepared by the wife last summer makes no mention of the husband’s pension, and concludes with about $40,000 owing by the wife to the husband. It appears that if the husband’s pension is split, that conclusion will stand, but if it is not split and is instead treated as an asset of the husband, he will owe about $100,000 to the wife. Counsel for the wife insists that since equalization has not been determined I should not make any order that speculates as to what it might be, or how the pension will be treated. On the other hand, the husband argues that he should not be paying out money to the wife when she, in fact, owes him money. His proposed solution is that I order a specified monthly amount “to be set off, on a without prejudice basis, against the equalization payment owed by the respondent to the applicant to a maximum credit of $35,000 until the exact equalization is determined at trial or agreed to by the parties.” This strikes me as a bit convoluted, and perhaps difficult to apply. I think that I should first assess the wife’s need for interim support. At trial, there may well be a compensatory component to spousal support. At this point I cannot assess compensation when I know that an equalization payment is coming, but I do not know who will make it or how much it will be.

[18] Between her salary and either voluntary payments or child support as the case may be, the wife has just under $80,000 a year to live on. She lives with her parents. She claims a shortfall of $6,000 a month. I conclude that she wants to have such an amount to spend. She cannot actually be spending it and it is not actually necessary. The basis of the wife’s argument as to need is her exaggerated budget and her unreasonable view of what is necessary to manage her son’s relatively mild problems.

[19] The settlement conference has been scheduled for the second week of May, about three weeks away. I am at a bit of a loss as to why the motion was necessary at this point. In any event, given the wife’s income and the child support, the wife will not suffer hardship during what should be a relatively short period before the conclusion of the litigation.

[20] Since the wife may very well owe the husband money, and in any event since the equalization will affect spousal support, I think it fairer in the interim to accept the husband’s alternative position, and leave spousal support to the trial judge.

Conclusion

[21] The husband has paid the wife $50,000 since separation, heedless of the tax consequences to himself. Of that amount, $27,421 will be attributed to retroactive child support and s.7 expenses.

[22] I order the Applicant to pay child support to the respondent fixed at $1063 per month for one child based on an income of $123,391.87 per annum and to pay s.7 expenses fixed at $550 a month commencing November 15, 2011. Arrears are fixed at zero in view of voluntary payments already made. The motion for interim spousal support is dismissed. The parties may make written submissions to costs within 15 days.

J.A. Ramsay J.

Date: 2013-04-26