SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

COURT FILE NO.: FD908/13

DATE: June 28, 2013

RE: Kathleen Elizabeth Tasman, applicant

AND:

Dale Gilford Henderson, respondent

BEFORE: MITROW J.

COUNSEL:
Ken Fraser for the applicant

Zachary Wilson for the respondent

HEARD: June 19, 2013

ENDORSEMENT

[1] The applicant brings an urgent motion for interim spousal support prior to a case conference. Given the length of time necessary to wait for a case conference to be scheduled, I granted leave to the applicant to proceed with her motion. Both parties had filed material and were ready to proceed.

[2] This is very early in the proceeding (the application was issued June 12, 2013) and, accordingly, my order will be on an interim, interim basis to permit the parties to exchange additional financial disclosure. A case conference date has been set for September 17, 2013.

BACKGROUND FACTS

[3] The applicant and respondent are ages 54 and 67, respectively. They have no children together. They began to cohabit July 2007, were married to each other in March 2008 and separated at the beginning of June 2013.

[4] The parties had a previous separation and according to the applicant this occurred from approximately June 2012 to early September 2012.

[5] The applicant is originally from Connecticut, U.S.A., having lived there until she moved in with the respondent in 2007 in his residence. It is the applicant’s evidence that she left friends and family behind in Connecticut and that she gave up a job as a flight attendant on a private jet earning $85,000 annually plus benefits.

[6] The applicant describes limited employment while in Ontario. Her employment included part-time work as a restaurant server and also as a receptionist. From January 2013 to April 2013, the applicant deposes that she provided in-home nanny service to a couple caring for a young child. The applicant describes working four to five days per week, for approximately ten hours a day, earning $13 per hour. It is the applicant’s evidence she earned $4,100 from this source ending in April 2013.

[7] The applicant describes having undergone “very significant back surgery” in April 2013 because of ongoing back pain. She describes the surgery involving spinal fusion and insertion of titanium rods, pins and artificial discs. The applicant states that, although she is recovering well, she does presently endure restrictions regarding her mobility, her ability to stand for extended periods, her ability to walk a long distance and her ability to lift. It is the applicant’s evidence that she is eight weeks into a three to four month period of recovery.

[8] The applicant filed no medical reports or any other medical evidence.

[9] Regarding the applicant’s ability to work, it is her evidence that she ceased working as an in-home nanny on April 12, 2013 and thereafter had her surgery. The applicant’s evidence is that she has been asked by the same couple to return to work providing in-home nanny services on a part-time basis for now while the applicant is recovering and that the applicant has been asked to start this part-time work in July 2013. The applicant deposes that she does not have a vehicle (because the respondent would not give her a vehicle to drive) and that if the applicant had a vehicle, then she could begin working providing the nanny services on a part-time basis in July “as long as my back could handle it.”

[10] The issue of the vehicle has been resolved, as counsel advised that the respondent will transfer ownership of his Camry motor vehicle to the applicant.

[11] The applicant’s material suggests that, since coming to Ontario, she has been completely dependent financially on the respondent.

[12] While the applicant describes a somewhat lavish lifestyle funded by the respondent, it is the respondent’s evidence that the applicant overspent money during the marriage, that she has an alcohol dependency that required residential treatment and that the applicant “often told” the respondent that she could return to her $85,000 job as a flight attendant. The applicant agrees that she did attend for residential treatment as alleged by the respondent, but the applicant disputes the extent of the altercations alleged by the respondent as having been caused by the applicant’s alcohol use.

[13] The applicant points to the respondent’s loan application with a financial institution in 2011 disclosing a net worth of slightly over $3 million.

[14] The respondent’s 2010, 2011 and 2012 income tax returns show the following line 150 income (rounded):

• 2010 $87,295

• 2011 $116,359

• 2012 $60,480

[15] Since late 2010, the respondent’s T4 income was derived from his position as an elected municipal councillor. In 2012, this T4 income was just over $23,000. The respondent also received Old Age Security pension and CPP pension.

[16] The respondent argues that his lifestyle with the applicant was funded substantially by withdrawals from his RRSP during the marriage. The respondent’s 2010, 2011 and 2012 income tax returns show RRSP income for those years, respectively, in the amount of $74,000, $80,600 and $21,000.

[17] The respondent submits that the $3 million net worth statement he prepared in 2011 for the financial institution needs to be viewed in the context that he showed the matrimonial home to be worth $1 million, whereas a recent appraisal showed the matrimonial home value at $720,000. Also, some of the properties shown in that financial statement have since been sold and the respondent further submits that the $500,000 shown in that statement has been depleted such that the respondent only has $38,327.54 “in available RRSPs to withdraw.” During argument on the motion, the respondent submitted that his $500,000 RRSPs, as disclosed in the statement he prepared for the financial institution, had been reduced significantly and that his ability to generate RRSP income, at the rate of $21,000 annually (being the amount withdrawn in 2012) is clearly short-lived. The respondent, in his sworn financial statement, discloses a negative net family property. (I note the negative values that the respondent attributes to his shares in London City Music Hall Inc. as at date of separation (negative $462,387) and as at date of marriage (negative $194,560). The net result decreases his net family property by close to $270,000. The respondent will need to explain how shares in a corporation can be worth less than zero.)

[18] I find that the respondent’s financial disclosure does not support the submissions made on his behalf regarding his RRSPs.

[19] The respondent’s sworn financial statement filed on the motion shows a date of separation value of $477,972.18 for his self-directed RRSPs. This amount comes from the April 2013 RRSP statement appended to the respondent’s material. This statement shows cash assets (within the self-directed RRSP) totalling $38,327.54, which is the exact amount referred to in the respondent’s affidavit as being “available” to be withdrawn. The RRSP statement also shows “fixed income assets” valued at over $430,000. The respondent does not explain why his ability to access RRSP funds is limited to the cash portion of his RRSP portfolio. Clearly, the market value of the RRSPs at the date of separation is very similar to the $500,000 reported by the respondent to the financial institution in 2011.

[20] The respondent has disclosed an ownership interest in eight corporations, five of which he owns together with his son and daughter. Up-to-date income disclosure needs to be provided for all the corporations to verify the respondent’s assertions that he receives no money or income from the corporations and that all of the corporations, except one, are no longer operating.

[21] The respondent discloses his income in his sworn financial statement at $39,473 annually (rounded), consisting of his municipal T4 income, CPP and OAS. Curiously, the respondent’s sworn financial statement omits reference to the tax-free income from the municipality of $10,917 that the respondent did disclose in a draft unsigned financial statement that was prepared by his previous lawyer during negotiations in 2012 while the parties were separated. This draft financial statement was attached as an exhibit to the applicant’s initial affidavit (where the applicant, at paragraph 20, specifically mentions the tax free income). The respondent, in his responding affidavit, does refer to his draft unsigned financial statement but fails to explain why this apparent tax-free component of his salary is not included in his sworn financial statement and why this income is not available for spousal support. I draw an adverse inference against the respondent for his failure to explain this. I therefore consider this income for the purpose of my decision, including the fact that this income is tax-free and should be grossed-up.

[22] In his affidavit material, the respondent, in essence, pleads poverty, saying he has only modest income, apart from RRSP income, and that he has limited ability to support the applicant. His affidavit evidence is that the carrying costs of the matrimonial home alone total $3,217 per month. He describes the matrimonial home as consisting of 11 rooms (including 4 bedrooms) and being located on over 48 acres of wooded property.

[23] The respondent asserts that the matrimonial home should be sold, that he can no longer afford to carry it and the matrimonial home requires repairs to get it ready for sale. He asserts fears that the state of the matrimonial home will decline if the applicant remains in the matrimonial home.

[24] In her reply evidence, the applicant deposes it is not her intention to remain permanently in the matrimonial home. She states she wishes to reside in the matrimonial home until she is capable of moving out and she disputes allegations that she will cause damage to the matrimonial home or that she will not otherwise properly maintain it. The applicant states she is not physically able to move at this time and that she needs to remain in the matrimonial home on a temporary basis until she has healed and can afford to move elsewhere.

DECISION

[25] Although the applicant’s motion seeks $2,500 per month interim spousal support, the applicant during argument on the motion refined her request to a range of $1,500 to $1,750 per month and submitted it should be at the high end of that range.

[26] Although the applicant provided no calculations pursuant to the Spousal Support Advisory Guidelines (SSAG), the respondent provided a number of calculations.

[27] The respondent included a scenario that is based on his 2012 income (which included $21,000 RRSP income) and assumes no income for the applicant. The “without child formula” SSAG ranges for this scenario (which are based on the gross income difference) range from a low of $453 per month to a high of $604 per month. The respondent submits, correctly, that the SSAGs themselves point out that on an interim basis, and where there is a short marriage with no children, that the SSAGs may generate amounts that are not sufficient to provide adequate spousal support and may need to be adjusted. I find that the case at bar is clearly one of those circumstances. The respondent then submits that, taking this into account, the range of spousal support on an interim basis should be from $600 to $800 per month.

[28] The respondent’s submissions and SSAG calculations fail to take two factors into account. Firstly, there is the tax-free component of the income that the respondent receives, as discussed above. Secondly, on an interim, interim basis, the respondent does not need to limit himself to RRSP withdrawals on the basis of an annualized amount of $21,000, being what he took in 2012. The respondent had taken larger RRSP withdrawals in the two previous years and he still has a substantial self-directed RRSP that would allow him, if necessary, to take a larger amount than $21,000 annualized to meet any interim, interim support obligation.

[29] Although the applicant seeks an order requiring the respondent to continue carrying all the expenses of the matrimonial home, there is no claim advanced for interim exclusive possession of the matrimonial home.

[30] It is also clear on the evidence that the applicant feels she is in a position to return to part-time employment acting as a nanny to start sometime in July. The applicant in her materials seemed to blame her inability to accept this offer of employment because she had no car. However, that is now remedied. While the applicant does state she will carry out the part-time nanny duties as long as her back is able to withstand that, the applicant also has failed to file any medical evidence to suggest that she could not work on a part-time basis while convalescing from surgery.

[31] I agree with the respondent’s submission that some incentive must be built into the order so that the applicant takes appropriate steps to maximize her employment income and also takes steps to seek alternate accommodation (as she has said she intends to do). That can be accomplished by time limiting the order I make.

[32] It is appropriate to provide the applicant with sufficient spousal support to allow the applicant to meet her living expenses and to allow her to use income earned to make plans to move from the matrimonial home and to obtain suitable accommodation.

[33] Accordingly, I find that the respondent should pay $1,500 per month spousal support commencing June 1, 2013.

[34] The support should then continue until December 1, 2013. This will allow the applicant sufficient time to return to her employment and to make arrangements to secure alternate accommodation. It would be expected that during this time the parties will act expeditiously to complete their financial disclosure and take all necessary steps to facilitate the sale of the matrimonial home. The applicant would also be expected to provide a medical report if she is alleging any impairment in her ability to work past the three to four month period of convalescence that she deposed to. The parties would also be expected to make all reasonable efforts to resolve the matter of ongoing interim spousal support starting January 1, 2014.

[35] It is to be noted that the order below does not include any order for interim exclusive possession of the matrimonial home, which means that there is nothing to prohibit the respondent from having access to the matrimonial home.

[36] The respondent, however, should remain responsible for all of the matrimonial home maintenance and carrying costs and the order will include that obligation.

ORDER

[37] An order will issue as follows for the reasons set out above:

1. The respondent shall pay interim, interim spousal support to the applicant in the amount of $1,500 per month commencing June 1, 2013 up to and including December 1, 2013;

2. Absent agreement by the parties, the respondent’s obligation to pay interim spousal support, if any, for the period commencing January 1, 2014 shall be determined on motion of either party, returnable after the case conference has been held;

3. On an interim, interim basis the respondent shall be solely responsible for paying all expenses in relation to the matrimonial home, including all mortgage payments (first and second mortgages), property taxes, property insurance, electricity, heat, and upkeep and maintenance.

[38] If the parties are unable to agree on costs, then the parties shall make brief written submissions on costs limited to three pages each, plus copies of any offers, to be forwarded to the trial coordinator by no later than July 31, 2013.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: June 28, 2013