SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

COURT FILE NO.: F927/12
DATE: June 26, 2013

RE: SANDY MARLENE TUPHOLME, applicant

AND:

ERNEST CARLYLE TUPHOLME, respondent

BEFORE: VOGELSANG J.

COUNSEL:
Norman M. Aitken for the applicant
Iain D.D. Sneddon for the respondent

HEARD: May 31, 2013

ENDORSEMENT

[1] Ms. Tupholme, the applicant, commenced a motion on February 14, 2013 in which she sought interim spousal support commencing March 1, 2013, an order that the former matrimonial home situate at 3551 Catherine Street in Dorchester be listed for sale, various orders related to the conduct of the proposed sale, an order compelling completion of previously ordered disclosure and costs.

[2] Mr. Tupholme responded with his own motion four days later, in which he seeks child support, exclusive possession of the matrimonial home, a declaration that he is the person entitled to receive any applicable Child Tax Benefit with respect to the parties’ children and costs.

[3] The parties married in September, 1990 and separated, apparently on their wedding anniversary, 21 years later. Following the separation, Angela and Collin, born September 2, 1991 and October 28, 1993 respectively, continued to live with their father at the Catherine Street property in Dorchester. The youngest child, Alicia, resided with both her parents in a shared custody arrangement for around six months until March 15, 2012 when she began to live with Mr. Tupholme. Alicia turned 18 years of age a few days ago.

[4] Collin, now 19, is attending at Georgian College in Barrie taking a heating and electrical technical course. There is considerable conflict in the affidavit evidence about the amount of time Ms. Tupholme spends with the girls. Ms. Tupholme maximizes the time and activities she enjoys with her daughters, while Mr. Tupholme tends to minimize her involvement and any financial expenditures she might make for the girls’ benefit. Similarly, there is disagreement between the applicant and respondent about how much time Collin actually resides with Mr. Tupholme. It is not necessary for me to deal with this conflicted evidence because I am not satisfied that Ms. Tupholme’s income could warrant a child support payment pursuant to the Federal Child Support Guidelines, SOR 97/175.

CHILD TAX BENEFIT

[5] The parties are able to agree on only one issue. After separation, Ms. Tupholme received the Child Tax Benefit for the children. As the children have lived with Mr. Tupholme for a substantial time, he should now be entitled to whatever benefit there is. Ms. Tupholme is directed to execute whatever document is required by the Canada Revenue Agency and to use her best efforts to arrange a transfer of the benefit to Mr. Tupholme for the 12 month period beginning July 1, 2013 (what I understand to be the beginning of the next benefit year).

PAINTING INCOME – UNDECLARED CASH?

[6] Ms. Tupholme asserts that her income from her house painting business (begun in 2009) was limited to a net of only $2,100 in 2011 (gross about $7,000) and an estimate of net $2,220 in 2012 (gross of $8,000). She denies Mr. Tupholme’s accusation that she is paid in unreported cash income for many jobs. She says that her parents gave her money to pay for the emergency furnace repairs and bathroom renovation she had to complete in her new residence – which her parents recently purchased for her – refuting the respondent’s conclusion that she must have had access to more cash than she claims. This is not the sort of issue which should be decided without the benefit of a trial and a full examination and cross-examination of witnesses. For the purposes of this motion, it has not been established to my satisfaction that Ms. Tupholme benefits from undeclared cash income.

IMPUTATION OF INCOME

[7] Mr. Tupholme seeks to impute income to Ms. Tupholme of $20,000 annually, both for the purposes of child support and for reference to the Spousal Support Advisory Guidelines. He relies on s. 19(1)(a) of the Child Support Guidelines. Certainly it now appears accepted that support income analysis from the Guidelines can be applied in issues of spousal support both at interim motions and at trial: Bargout v. Bargout, [2013] O.J. No. 2 (Sup. Ct.), and specifically in cases of imputed income: see Stevens v. Stevens, 2012 ONSC 706, [2012] O.J. No. 511 (Sup. Ct.) and Savonarota v. Savonarota, [2011] O.J. No. 3785 (Sup. Ct.), where there was discussion of the necessity of a support payor taking reasonable steps to obtain employment commensurate with age, health, education, skills, poor work history and job availability. There is almost a complete absence of evidence before me from which I could conclude that Ms. Tupholme is underemployed. All I have is her affidavit evidence that she started the painting business in 2009 as a partnership, that she recently made contact with small contractors to generate more business and that she thinks she will eventually grow the enterprise and become self-sufficient. For his part, all Mr. Tupholme can offer is that Ms. Tupholme had a number of past part-time bookkeeping jobs when the children were attending school. Again, a full examination of the relevant factual background can only be possible at trial. It should be unnecessary to point out that the trial judge will be in a much better position to make a retroactive support order if it is appropriate to do so after a full hearing: Elliot v. Elliot (1993), 1993 3429 (ON CA), 15 O.R. (3d) 265, 48 R.F.L. (3d) 237 (Ont. C.A.); leave to appeal to S.C.C. refused 18 O.R. (3d) xvi (note).

[8] In Drygala v. Pauli (2002), 2002 41868 (ON CA), 61 O.R. (3d) 711 (C.A.) the Court of Appeal emphasized the need for a rational evidential basis underlying the selection of any figure as an amount of imputed income. Even if I were satisfied that Ms. Tupholme is underemployed for the purposes of these interim child and spousal support motions, I would be unable to exercise my discretion reasonably on this evidence. By contrast, see the nature of the required full discussion of the relevant factors by Greer J. in Dang v. Hornby (2006), 2006 12973 (ON SC), 33 R.F.L. (6th) 113 (Ont. Sup. Ct.).

[9] In the result, the income available to Ms. Tupholme for support purposes is $2,200. This annual sum does not approach the minimum threshold required by the Child Support Guidelines. Mr. Tupholme’s claim for interim child support is dismissed.

SPOUSAL SUPPORT

[10] Mr. Sneddon concedes that Ms. Tupholme is entitled to interim spousal support. At issue is quantum.

[11] There is significant discrepancy in the DIVORCEmate software calculations put before me by counsel. Mr. Aitken produced a range of spousal support where Mr. Tupholme’s income is about $79,350 after deduction of union dues and Ms. Tupholme’s is $2,220. Mr. Aitken’s “custodial payor” formula range is $1,805 (low) - $2,105 (mid) and $2,406 (high). Mr. Sneddon frankly admitted he could not explain why his ranges were $1,209 - $1,411 - $1,612. For the purposes of this motion, I am prepared to accept Mr. Aitken’s DIVORCEmate figures for the SSAG calculations, as I produced my own calculations, which were only a few dollars higher than those of Mr. Aitken – which, unfortunately, I cannot explain either.

[12] Mr. Aitken sought monthly interim spousal support in the mid-range amount of $2,105 commencing March 1, 2013 and I agree that is an appropriate amount. Indeed, I would have been prepared to make an award between the mid and high ranges on these facts, taking into account: the considerable length of this marriage; the real economic disadvantages occasioned to Ms. Tupholme by her duties in the marriage; Mr. Tupholme’s voluntary assumption of the income-producing role; Ms. Tupholme’s limited immediate prospects beyond a slow progression of her return from her business; the significant disparity between their incomes, and her forced reliance on debt to keep going: E.D. v. D.D., 2012 ONSC 6689, [2012] O.J. No. 5586. An order for spousal support will go in these terms.

EQUALIZATION

[13] The parties are far apart and unable to resolve the issues surrounding the former matrimonial home. Ms. Tupholme states that her expected payment from Mr. Tupholme to equalize their net family properties at the date of separation is approximately $42,500 – which includes Mr. Tupholme’s defined contribution pension value from UA787 Pension Plan of about $111,600, but excludes her interest in the home. She wishes the house sold immediately and fixes her likely recovery at $71,500 (with a sale price of $280,000 and deduction of real estate commission, legal fees and payment of the outstanding encumbrances). She says in her March 7, 2013 affidavit that the respondent, who has possessed the home since November, 2011, indicated to her that he did not want the matrimonial home to be sold until the Spring of 2012. She accuses him of delay in making the necessary arrangements for fresh mortgage financing and concludes that Mr. Tupholme is unable to obtain a loan.

[14] For his part, Mr. Tupholme rather cleverly avoids a direct denial concerning the allegation that he told Ms. Tupholme that a sale of the home should await the Spring of 2012. In his March 12, 2013 affidavit he only says “I never wanted to sell the matrimonial home.” He goes on to blame Ms. Tupholme for making a “tactical move” in refusing to accept an at-source deferred pension division as he offers. On that basis, I can only conclude that the requirement in s. 9 of the Family Law Act, R.S.O. 1990, c. F.3 for immediate payment of the equalization entitlement would render Mr. Tupholme unable to achieve his new mortgage financing if the pension value were included in the calculus.

[15] Mr. Tupholme implies that the applicant’s refusal to accept a transfer of a portion of his pension entitlement on a deferred basis is unacceptable because “she has never provided a good reason why transferring [the] pension should not occur.” Mr. Sneddon in effect repeated that argument in his submissions but could provide no authority for the proposition that a presumption now exists favouring transfers from a pension plan as contemplated by the new s. 10.1 of the Family Law Act and s. 26 of Ont. Reg. 287/11 (implementing the changes to the Pension Benefits Act, R.S.O. 1990 c. P.8 (as amended). I realize such an order was made in O’Kane v. O’Kane, 2013 CarswellOnt 2894 (Ont. Sup. Ct.) where Fitzpatrick J. directed the equalization payment owing to the wife be assigned to her from the husband’s pension benefit plan, provided it not exceed 50 percent of the value of the pension benefit imputed for family law purposes. In that case, however, the husband had fled to Alberta, did not defend the action and the trial judge found that resort to the husband’s pension was the only method by which the wife could realize her entitlement to an equalization payment

[16] In my view, Mr. Tupholme should not be able to force his wife to accept a deferred payment of a share of his pension to ease his own liquidity position in the face of the clear words of s. 9(1) of the Family Law Act. Also, in my view, there is no statutory onus on a spouse entitled to an equalizing payment to show that the new pension division mechanism brought into force by the Family Law Statute Amendment Act, 2009 S.O. 2009, c. 11, s. 26 should not be called into play in favour of immediate payment.

SALE

[17] Mr. Aitken argues forcefully for an order directing the immediate sale of the former matrimonial home, pressing the difficult position in which Ms. Tupholme finds herself. He says her money in the equity in the Dorchester residence is tied up, preventing her from paying her parents back some of the funds they have advanced. He says her desire to “get on with her life” is legitimate, as is her wish to effect a clean break after separation. Mr. Aitken characterized Mr. Tupholme’s renewed stated desire to purchase Ms. Tupholme’s interest as just an example of his delay which would only cause continued prejudice to his client. Certainly the authorities recognize that obvious financial necessity can require a sale. In Gainer v. Gainer (2006), 2006 12969 (ON SC), 24 R.F.L. (6th) 18, [2006] O.J. No. 1631 (Ont. Sup. Ct.), M.G.J. Quigley J. said at para. 19:

19 While a sale of a matrimonial home after many years of residence will inevitably cause considerable stress and anxiety to spouses who have lived in comfort for many years in such a single family abode, it may simply not be economically viable to permit a spouse to continue to reside in a matrimonial home where the economic circumstances of the parties are such that access by one or the other of the spouses to the matrimonial home capital is an economic necessity.

[18] Mr. Sneddon resists the order for sale and emphasizes the wishes of the children as manifested in the statements made by them in the reproduced e-mails sent to Mr. Tupholme. I have grave concerns about the tone and contents of the e-mail entreaties and the unfortunate obvious involvement of the children in the litigation, even leaving aside the impropriety of including unsworn prose statements of third parties in affidavit evidence employed on a motion: LiSanti v. LiSanti (1990), 1990 4229 (ON CJ), 24 R.F.L. (3d) 174, [1990] O.J. No. 3092 (Prov. Div.).

[19] There is good reason, as well, to question the weight to be attached to the very brief statement submitted by the adolescent psychiatrist, Dr. Marilyn Thorpe, concerning Alicia’s circumstances. As Ms. Tupholme deposes in her March 7, 2013 affidavit, Dr. Thorpe’s letter is dated almost 13 months ago and seems to relate more to Alicia’s desire to reside with her father. It is not timely and, although directed to Alicia’s psychiatric interests and her psychotherapy for depression, does not disclose that her therapy is now over. In addition, it is disturbing that Alicia apparently has been made to fear that her parents face bankruptcy and that Mr. Tupholme will have to live in a trailer park to house her. It is my unfortunate conclusion that Mr. Tupholme is attempting to turn the child into an advocate for his cause, which is both self-serving and misguided.

[20] Mr. Tupholme included a very terse note by a Dr. Richard Owen and a social work case manager from the London Health Sciences Centre dated February 22, 2013 simply stating that “a change in Angela’s [the eldest child] home situation could have a significant impact on the state of her mental health,” without any further explanation or clarification. Ms. Tupholme responds with the fact that Angela lived with her parents in London for two years and apparently thrived. I cannot treat this “report” as much of a basis for viewing Angela’s needs as trumping a sale.

[21] I can see nothing cogent or compelling about the circumstances of any of the children which would detract from Ms. Tupholme’s prima facie right to call for a sale of the jointly-owned home. They are older children. Indeed, Alicia is planning to begin a specialized post-secondary veterinary-related course in Ridgetown in the Fall. The prospect of some quite normally anticipated disruption and upset to Mr. Tupholme and the children is not sufficient to deny a sale: Black v. Black, [2008] O.J. No. 617 (Sup. Ct.).

[22] An order will go in the usual form for the listing of the former matrimonial home for sale at a price of $289,000 (or such lower amount as may be agreed by the parties after consultation with their broker). If Mr. Tupholme and Ms. Tupholme, after consultation with their counsel, are unable to agree on a broker to list the property or a timetable for completion of an agreed list of any needed repairs and who will perform the work, I may be spoken to. Without any clear indication that Mr. Tupholme will not cooperate in the sale, I am not disposed to make the orders Mr. Aitken seeks giving sole control of the sale to Ms. Tupholme. I am hopeful that the imposition of the interim spousal support award and the removal of the uncertainty surrounding the sale of the residence will enable the parties to come to a quick and final resolution of any remaining issues.

EXCLUSIVE POSSESSION

[23] As a result of my determination of the sale issue, there is no justification for an order for exclusive possession. Mr. Tupholme’s claim is dismissed: Goldman v. Kudeyla (2011), 2011 ONSC 2718, 5 R.F.L. (7th) 149 (Ont. Sup. Ct.).

COSTS

[24] Counsel may make submissions with respect to costs in letter form addressed to me in the care of the trial coordinator within 30 days. I want to know particulars of offers to settle, if any, and when they were made. Submissions must be brief.

“Justice Henry Vogelsang”

Justice Henry Vogelsang

Date: June 26, 2013