ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-12-5229
DATE: 2012-08-12
B E T W E E N:
Wendy Kathleen McMillan,
Thomas Carten, for the Applicant
Applicant
- and -
Kenneth Thomas McMillan,
Tyler Johnson, for the Respondent
Respondent
HEARD: July 10, 2013,
at Thunder Bay, Ontario via videoconference
Mr. Justice D. C. Shaw
Decision On Motion
[1] On January 31, 2013, an order was made, on consent, by Fregeau J. at a case conference pursuant to which the respondent, Kenneth Thomas McMillan, was required to pay to the applicant, Wendy Kathleen McMillan, temporary spousal support of $3,400.00 per month. Ms. McMillan was ordered to assume temporary sole responsibility for the mortgage payment on the matrimonial home together with utility, telephone, cable, internet and heating costs.
[2] The order was made on the representation by Mr. McMillan at the case conference that his annual income in 2012 was $99,297.55.
[3] Mr. McMillan did not have his 2012 T-4 at the time of the January 31, 2013 case conference. He subsequently received his 2012 T-4 slip and produced it to Ms. McMillan. The T-4 slip shows income in 2012 of $131,863.00.
[4] Ms. McMillan brings this motion to vary the temporary order of January 31, 2013. She requests that support increase to $5,000.00 per month, based on Mr. McMillan’s 2012 T-4 income. Ms. McMillan alleges that Mr. McMillan misrepresented his income at the case conference.
[5] Mr. McMillan opposes the requested variation. He submits that he did not misrepresent his 2012 income. Although his T-4 shows income for 2012 of $131,863.00, $32,845.00 of that amount represents taxable benefits related to his work at a gold mine in Nunavut, consisting of room and board at his employer’s camp in Nunavut. The sum of $99,297.55 represents what Mr. McMillan received for wages, production bonuses and holiday pay. He submits that the taxable benefits allowed him to work in Nunavut. He works two weeks on in Nunavut and then has two weeks off. He travels between Nunavut and his home in Winnipeg. His net monthly income is between $5,000.00 and $6,000.00.
[6] The parties began cohabiting in 1987. They married in 1990 and separated in December 2011. Ms. McMillan had four children from a previous relationship when she and Mr. McMillan began residing together. They had a child born of their relationship in 1998. The children are now adults and not dependent.
[7] Ms. McMillan remained at home during the marriage to care for the children and to look after the household while Mr. McMillan worked outside the home. He was the sole financial support of the family.
[8] Ms. McMillan is not employed. She has a modest education and little job experience. She has health problems. She resides in the matrimonial home, several miles outside Ear Falls. She has no vehicle or driver’s licence and relies on rides from friends to get to town.
[9] Following separation, Mr. McMillan paid the mortgage on the matrimonial home, which he deposes is $1,905.22 per month. He also paid other expenses and monies directly to Ms. McMillan. He deposes in his affidavit, sworn July 4, 2013, that since the order of January 31, 2013, he has paid a total of $27,418.67, including payments on the mortgage, utility costs, insurance, payments directly to Ms. McMillan and, starting in June 2013, payments to the Family Responsibility Office. He deposes that his actual obligation under the order was $23,800.00. Ms. McMillan has not yet taken over payments of the mortgage as required under the order of January 31, 2013.
[10] Mr. McMillan does not dispute Ms. McMillan’s entitlement to spousal support.
[11] Ms. McMillan filed a Spousal Support Advisory Guideline (SSAG) Divorcemate calculation based on an income of $131,863.00 for Mr. McMillan and zero income for herself. This produces a range of support of a low of $3,956.00, a middle of $4,615.00 and a high of $5,204.00.
[12] Mr. McMillan produces a SSAG Divorcemate calculation, based on an income of $131,800.00 for himself and $2,400.00 for Ms. McMillan. This calculation differs from Ms. McMillan’s calculation in that it adjusts for taxable benefits of $32,845.00. It produces a range of a low of $3,558.00, a middle of $4,152.00 and a high of $4,745.00.
[13] Ms. McMillan’s calculations show that Mr. McMillan would be left with net disposable income (NDI) of $4,857.00 at the low end of the support range, $4,458.00 at the middle, and $4,101.00 at the high end of the range. The corresponding figures for Ms. McMillan’s NDI would be $3,254.00, $3,695.00 and $4,101.00.
[14] Mr. McMillian’s calculations show that he would be left with NDI of $2,351.00 at the low end of the support range, $1,998.00 at the middle, and $1,638.00 at the high end of the range. The corresponding figures for Ms. McMillan’s NDI would be $$3,129.00, $3,526.00 and $3,934.00.
[15] The percent of NDI for each party, based on their respective calculations would be:
(a) under Ms. McMillan’s calculations –
SSAG Low - 59.9% Husband 40% Wife
SSAG Middle - 54.7% Husband 45.3% Wife
SSAG High - 50.0% Husband 50.0% Wife
(b) under Mr. McMillan’s calculations –
SSAG Low - 42.9% Husband 57.1% Wife
SSAG Middle - 36.2% Husband 63.8% Wife
SSAG High - 29.4% Husband 70.6% Wife.
(I note that there is no evidence that Ms. McMillan’s income is $2,400.00 per month. However, if this income was not included in Mr. McMillan’s calculations, the range of support and the NDI calculations would only be affected in a small way.)
Discussion
[16] I am not satisfied that there has been a material change in circumstances since the order of January 31, 2013 to warrant a change in support.
[17] Although more detailed information may emerge later about the taxable benefits of $32,845.00, it appears that they are for living expenses at the gold mine in Nunavut, one of the remotest locations in the country. Without those taxable benefits, Mr. McMillan would not be able to earn the $99,297.55 upon which support is based. I do not regard room and board in Nunavut in the same light as, for example, a company car, an entertainment allowance, or an interest rate subsidy. Mr. McMillan maintains his residence in Winnipeg, with the attendant fixed costs. He no doubt benefits by not having to purchase food for the two weeks out of four that he is in Nunavut. However, the $32,845.00 is taxable in his hands.
[18] It appears from the SSAG Divorcemate calculations produced by Mr. McMillan that although his gross income per month (with the taxable benefits) is $10,983.00 per month, once those taxable benefits are deducted from cash flow, and after he pays income tax and support payments of $3,400.00 per month, he is left with less net disposable income that Ms. McMillan. If spousal support was increased to the $5,000.00 per month requested by Ms. McMillan, it appears that there would be a dramatic difference in their net disposable incomes favouring Ms. McMillan.
[19] If one looks at Ms. McMillan’s SSAG Divorcemate calculations and deducts the $2,737.00 per month taxable benefits (as a cash flow adjustment), from her NDI figures, it again appears that Mr. McMillan would be left with significantly less NDI than Ms. McMillan.
[20] I therefore see no compelling reason to revise the interim support award from the current amount of $3,400.00 per month.
[21] This is a motion for variation of an interim order. Interim motions are summary in nature. They are not meant to be a detailed investigation into the case. They are designed to provide a quick determination pending trial where adjustments can be made on a full evidentiary record.
[22] The motion is dismissed, without prejudice to a retroactive adjustment of spousal support at trial.
[23] Mr. McMillan is presumptively entitled to his costs. However, given the fact that full disclosure of his 2012 income was not available at the time the January 31, 2013 order was made, I am not inclined to order costs against Ms. McMillan. If costs are requested, I will receive written submissions from Mr. McMillan, not to exceed five pages, within 20 days. Ms. McMillan shall have 10 days after service of Mr. McMillan’s submissions to provide her responding submissions, not to exceed five pages.
___”original signed by”
The Hon. Mr. Justice D. C. Shaw
Released: August 12, 2013
COURT FILE NO.: FS-12-5229
DATE: 2012-08-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Wendy Kathleen McMillan
Applicant
- and –
Kenneth Thomas McMillan
Respondent
DECISION ON MOTION
Shaw J.
Released: August 12, 2013
/mls