CITATION: Berube v. Berube, 2013 ONSC 2938

COURT FILE NO.: 11-45891

DATE: May 24, 2013

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Eugene Berube, Applicant

A N D:

Beverley Berube, Respondent

BEFORE: The Honourable Mr. Justice Robert J. Nightingale

COUNSEL: Michael Wannop, for the Applicant

Glenda McLeod, for the Respondent

HEARD: April 26, 2013

E N D O R S E M E N T

[1] The Respondent mother brings this motion for interim child and spousal support including retroactive support payable by the Applicant father.

[2] The Application was issued in October 2011 and the Answer was delivered in December 2011 with an amended Answer in August 2012.

[3] Questioning of the parties on their affidavits and financial statements has not yet taken place.

Factual Background

[4] The Respondent, age 38, and the Applicant, age 40, commenced cohabitation in 2003, were married in August 2006 and separated in September 2009.

[5] They have one child Jack born February 5, 2008. The Respondent has one child from a previous relationship Rebecca Butler born December 21, 1995 who has always lived with the parties since 2003.

[6] The Applicant presently resides in the matrimonial home at 142 Farrier Drive Kitchener and the Respondent resides in a rental property at 178 Bridge Street West Waterloo owned by the Applicant. The Applicant also owns a cottage property.

[7] The parties entered into an interim arrangement in October 2009 which provided for shared joint custody of the child Jack, Rebecca to reside with the Respondent, the Applicant to fund the parties debts and monthly expenses and the Applicant to pay child support for both children the amount of $100 per week.

[8] However, in July 2012 Jack began residing alternating between the parties’ respective residences on a week-about basis which appears to be working well.

[9] In addition, the child Rebecca in May 2012 decided to move back into the matrimonial home and reside primarily with the Applicant.

[10] The Applicant stopped payment of child support in November 2010 but apparently has been maintaining all of the family’s debt payments.

The Applicant’s Income

[11] The Applicant is a full-time teacher who earned the following employment amounts:

a) 2010: $93,761

b) 2011: $94,662

c) 2012: $94,736

[12] In addition, the Applicant receives rental income from the basement apartment in the matrimonial home and the basement unit of the rental property which in 2010 appears to be in the area of $19,000 gross. The Applicant deducted his expenses for income tax purposes reducing the net rental income to zero dollars. The Respondent suggests that approximately $9300 of the annual expenses claimed were referable to the care and upkeep costs of the matrimonial home which would be incurred in any event by the Applicant whether the basement apartment there was rented out. She accordingly suggests that this $9300 amount should be imputed back into the Applicant’s income raising it to approximately $103,000 in 2010 and presumably to similar amounts in 2011 in 2012.

[13] The Applicant submits that the rental expenses are proper business deductions and that he has been paying for all the expenses on all three properties without contribution from the Respondent since the date of separation which he suggests are approximately $1300 per month for the Bridge Street rental property, $1500 per month for the matrimonial home and $800 per month for the cottage inclusive of mortgage payments, taxes, insurance and all utilities.

[14] His evidence is that he pays for the vast majority of both children’s expenses including purchasing of their clothing, haircuts, swimming lessons, medication expenses and YMCA memberships.

Respondent’s Income

[15] The Respondent was injured into motor vehicle accidents in 2006 and 2008. She alleged she suffered extensive injuries to her back neck and shoulders as a result of the 2002 accident which resulted in her inability to maintain full or part-time employment but no supporting medical records were provided in evidence. She admitted that she continued to work until January 2007 when she was terminated from her last job and has received education and training as an aesthetician.

[16] She receives CPP disability benefits of approximately $1100 per month and income replacement benefits from her motor vehicle insurer of approximately $350 per month tax-free. This total of approximately $17,400 per year for support purposes should be grossed up somewhat on the income replacement benefits amount but it would not be significant.

[17] The Applicant suggests that the Respondent’s income cannot be accurately assessed suggesting that she is receiving income not reported for tax purposes for her hairstyling business and because there are serious questions regarding her ability to work. He says he has not received her bank records since separation that would show her cash income from her hairstyling.

[18] He is not alleging nor is there any evidence at this stage that the Respondent is deliberately choosing not to work as much as reasonably possible to provide for her own support and contribute towards the support of the children.

[19] The Applicant alleged that he was told by Rebecca’s biological father Jason Butler that he paid $12,000 in child support for Rebecca in 2012 to the Respondent.

[20] The Respondent explained that she received “some monies” from him but which did not amount to $12,000 for arrears of child support owing back to 1998. Unfortunately, she did not disclose the actual amount received or the time period to which it applied.

[21] The Applicant also suggested that the Respondent’s lifestyle belied her stated income in that she has taken over 10 Caribbean vacations in the past three years. The Respondent unfortunately only denied that she took 10 Caribbean vacations and even though her Counsel admitted she had taken some, she declined to say how many she had since separation. The only issue of relevance of those would be whether the Respondent had significant other sources of income that were not being disclosed.

[22] The Respondent admitted she did receive an approximate $220,000 settlement of her 2002 car accident case in January 2008 before the parties’ separation. She admitted that she loaned the Applicant about $114,000 to provide for the purchase of the cottage property and then spent another $30,000 or $40,000 for furnishings which are still in the matrimonial home. She said that when they separated, she had approximately $50,000 left and now has nothing left as well as no savings but significant credit card debts.

Child Support

[23] The Respondent is asking for child support under the Child Support Guidelines retroactive to November 2010, the date the Applicant stopped paying support under the interim agreement of October 2009.

[24] The Applicant indicated that he has agreed to pay $603 per month based on the Child Support Guidelines for child support for Jack but could not continue to pay all the expenses of the three properties, service the debts and pay spousal support. He was served with the Respondent’s Answer in December 2011 and conceded at the hearing of the motion that his child support obligations should commence now but retroactive to at least that time. I find that his support obligations on this interim interim basis for the children should commence January 1, 2012 as noted below.

[25] As indicated above Jack is now spending equal time with his parents and Rebecca resides with the Applicant.

[26] The parties do not appear to dispute that for interim interim child support purposes, the income of the Applicant should be his known employment income which the Applicant admits is $94,736.

[27] The Respondent’s annual income is known to be $17,656 at this time.

[28] I was provided with Divorcemate calculations by the Applicant for child support based on his annual guideline income however of $93,333 which is his gross employment income of $94,736 less a tax deduction for union, professional or like dues of $1403. I was not provided with any authority allowing the Applicant to do that but for the sake of expediency, without presently having corrected calculations and given that the judge hearing any interim motion after questioning or at trial can make the appropriate adjustments, I accept that figure for the purposes of this interim interim motion.

[29] The child support accordingly payable by the Applicant to the Respondent for the children is $603 per month which will commence July 1, 2012, the date Jack commenced residing equal time with the parties and with Rebecca residing full-time with the Applicant.

[30] In addition, the Applicant shall pay to the Respondent interim interim child support for the children from January 1, 2012 based on his annual income of $93,333 (subject to potential future adjustment) in the amount of $1334 per month for January, February, March, and April, 2012.

[31] For the months of May and June 2012, the Applicant is to pay interim interim child support to the Respondent for the children based on his annual income of $93,333 (subject to potential future adjustment), and her annual income of $17,400, Rebecca residing full-time with the Applicant and Jack residing with the Respondent during those two months. I will leave it to the parties to make that calculation under the Child Support Guidelines. If there is a need for further direction on that, I can be spoken to.

[32] The Applicant has indicated that the Respondent and the children have always been named as beneficiaries on his health, dental and medical benefits available to him through his place of employment and an order will be issued to that effect that he continue to do so on an interim interim basis.. The Applicant will also take all necessary steps to process any claims for health, medical and dental care expenses incurred by the Respondent for herself and the children through his employer’s coverage and promptly forward the benefits received for payment of those expenses to the Respondent.

[33] The issue of the retroactivity of child support, including the quantum, since November 2010 or any other date will be left to the judge hearing the interim motion, if any, after questioning of the parties or to the trial judge who will have the benefit of all the evidence for the purpose of determining the Applicant’s actual rental income for child support purposes.

Spousal Support

[34] Although the Respondent is not actually incurring any rental or utility cost expenses for the rental unit in which he presently resides, I am satisfied that she has established a prima facie case of entitlement for interim interim support from the Applicant based on the evidence I have before me, including the length of their cohabitation, her medical condition and disability from working and her financial dependency on the Applicant during their cohabitation and since.

[35] Her financial statement does not reveal any extraordinary expenses that are out of line. Although an in-depth analysis of the parties’ circumstances is better left to trial, in considering the Respondent’s needs and the Applicant’s ability to pay which he obviously has, it is appropriate to consider the range of spousal support suggested by the Spousal Support Advisory Guidelines.

[36] The Applicant’s Divorcemate calculation applying the SSAG’s based on his annual guideline income of $93,333 and the Respondent’s guideline income of $17,656 and child support of $603 per month produces monthly spousal payments in the low – $715, mid – $971, and high – $1276 ranges.

[37] Given the assumption that the Respondent would be the sole recipient of all tax benefits for CCTB, UCCB and HST, on interim interim basis, spousal support will be set at $971 per month commencing on May 1, 2013.

[38] The issue of retroactive spousal support including the quantum can be determined by the either the judge hearing the motion for interim support after questioning or the trial judge.

Other Matters

[39] The Respondent indicated in her affidavit that she was experiencing problems gaining access to the fuse box and utilities which are located in the basement apartment of her rental property. She does not have access it and to that end, needs the cooperation of the Applicant to ensure her access to that rented apartment. The Applicant will provide a key to those premises to the Respondent and shall take all reasonable steps to provide written authority to the Respondent as his agent to access the utilities in the basement apartment including authorizing and directing the tenant to permit her entry therein when reasonably required.

[40] If either party is requesting costs of this motion, I am prepared to receive written submissions on costs from them within 10 days of the date of this decision restricted to three pages in length.

May 24, 2013 _________________________________

The Honourable Mr. Justice R.J. Nightingale