ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-12-0332
DATE: 2013-08-12
B E T W E E N:
Freida Marlene Strutzenberger
Kevin W. Brothers, for the Applicants
Applicant
- and -
Peter Alexander Strutzenberger
Lydia Stam, for the Respondent
Respondent
HEARD: July 11, 2013
at Thunder Bay, Ontario
Mr. Justice D.C. Shaw
Decison On Motion
[1] The applicant, Freida Marlene Strutzenberger, brings a motion for interim spousal support, commencing July 1, 2013.
[2] The parties were married in 1977. They separated January 2, 2012.
[3] The parties equally own the common shares in P&M Logging Ltd. The respondent, Peter Alexander Strutzenberger, is the president of the company. Ms. Strutzenberger is the Secretary and Treasurer.
[4] P&M was incorporated in 1995, carrying on business out of White River repairing logging machinery. In January 2006, Mr. Strutzenberger relocated the business to Fort McMurray Alberta because of the downturn in the logging industry in White River. He is the only employee of the company. He spends approximately two thirds of the month working in Fort McMurray. When he is not working in Fort McMurray Mr. Strutzenberger returns to the matrimonial home in White River. The home has recently been listed for sale. Ms. Strutzenberger resides in Red Rock.
[5] Ms. Strutzenberger had been working as the bookkeeper for P & M until May of 2012. She was working at Nipigon District Memorial Hospital on a part-time basis from September 2012 until April 2013. She deposes that her contract at the hospital was scheduled to end on May 31, 2013 but she had to leave early because of the stress of dealing with the marriage break-down. She is presently unemployed.
[6] Mr. Strutzenberger has been paying support of $1500 per month to Ms. Strutzenberger since July 2012. He deposes that Ms. Strutzenberger has a university education and was employed at various positions during the marriage. He submits that there is no reason why Ms. Strutzenberger cannot relocate from Red Rock to find employment.
[7] The parties have each filed affidavits which go into some detail about the monies earned by P&M and about assets and monies that each are alleged to have removed from P&M since separation.
[8] The present financial picture of P&M and of the present income of Mr. Strutzenberger is unclear.
[9] In his Financial Statement sworn November 28, 2012, Mr. Strutzenberger shows his annual income as $74,543.28. This is the total income shown on his 2011 income tax return, which was based on taxable dividends of $73,956.25 and “other employment income” of $587.00.
[10] Mr. Strutzenberger’s 2009 income tax return shows taxable dividends of $35,206.25. His 2010 income tax return shows taxable dividends of $32,706.25. Mr. Strutzenberger has not filed his 2012 income tax return on this motion.
[11] Historically, the parties split the income of P & M by each declaring dividends from the company. The income tax returns of Ms. Strutzenberger show the following taxable dividends:
• 2009 - $32,737.92
• 2010 - $30,163.29
• 2012 - $107,293.75
Ms. Strutzenberger has not filed her 2011 income tax return on this motion.
[12] In a letter dated May 29, 2013 from the accountants for P&M, BDO Canada LLP, it is stated that Mr. Strutzenberger’s income for 2012 is an ineligible dividend of $88,165, grossed up 25% to $110,206.25 and that Ms. Strutzenberger’s 2012 income from the corporation is an ineligible dividend of $85,835 grossed up 25% to $107,293.75. The letter indicates that Mr. Strutzenberger’s 2011 income from the corporation was $59,165, grossed up to $73,956.25, and that his 2010 income was $26,165, grossed up to $32,706.25.
[13] The dividends have been prepared based on the prior year’s shareholder advances in the corporation.
[14] As of the date of the hearing of the motion, BDO had not prepared the 2012 financial statements for P&M and were awaiting the year end information to complete financial statements. On the hearing of the motion, I was advised by counsel that the 2012 financial statements should be available in approximately two weeks. I was also advised that the parties have scheduled questioning for August 20, 2013.
[15] Ms. Strutzenberger submits that I should find that the present income of Mr. Strutzenberger for spousal support purposes is double his stated income of $74,543,28 shown in his November 28, 2012 Financial Statement, namely $150,000. She provides Spousal Support Advisory Guidelines (SSAG) Divorcemate calculations based on an income of $150,000 for Mr. Strutzenberger and no income for Ms. Strutzenberger. This produces a suggested range of support of $4,688 at the low end, $5,469 in the middle and $6,101 at the high end of the range. This is a marriage of 34 years. Ms. Strutzenberger submits that support should be at the high end of the range.
[16] In my opinion, there is not sufficient information before me to make an interim order that should be in place until the trial of this matter. Rather, in view of the fact that the 2012 financial statements are about to be released and the parties are going to have questioning on August 20, 2013, I am on the view that on the limited evidence before me, including the financial situation of P&M, the income of Mr. Strutzenberger and the issue of whether it is reasonable to expect Ms. Strutzenberger to contribute to her own support, an interim, interim order should be made for support for the months of July, August, September and October 2013, with the parties to return to court after production of the 2012 corporate financial statements and after questioning, to argue the issue of spousal support pending trial.
[17] To set Mr. Strutzenberger’s income at $150,000 on the information I have would be speculation, I do not know what P&M earned in 2012, I do not know how much income Mr. Strutzenberger received from the company in 2013. I do not know what the shareholder advances have been during 2012. There is also an issue of significant outstanding balances on the company’s HST accounts for 2012, 2011 and the first half of 2012, plus significant outstanding income tax arrears for 2009, 2010 and 2011. Each of the parties blames the other for these outstanding balances. These failures to pay HST and income tax may have unrealistically inflated the monies available to the shareholders for advances. There is also an issue of what, if any, capital assets and monies of P&M each of the parties took before Wright, J made a consent order on December 14, 2012, prohibiting the parties from selling any assets of P&M.
[18] There is also the issue of whether it is reasonable to expect Ms. Strutzenberger to contribute to her own support in light of her education, experience and health and in light of employment opportunities in Red Rock and whether she should seek employment opportunities elsewhere.
[19] The most recent information available about the income generated by P&M is that there were actual dividends in 2012 of $174,000, based on shareholder advances in the prior year. As noted above it is not clear whether:
a) there were similar advances in 2012
b) whether advances may have been affected by non-payment of HST and income taxes
c) what monies and assess were removed from the company by the parties
d) and what became of those assets and monies
However, given the figure of $174,000 and the uncertainties noted, I am of the opinion that an interim, interim order should go requiring Mr. Strutzenberger to pay Ms. Strutzenberger monthly spousal support of $4,000.00 effective July 1, 2013 and on the first day of each of August, September and October 2013. These monies shall be paid directly to Ms. Strutzenberger, not through the Family Responsibility Office, because of the limited time for which the order is in effect. Mr. Strutzenberger shall be credited for any prior voluntary payments made to Ms. Strutzenberger in July and August. This interim, interim order is without prejudice to the position of either party on the issue of future support. Further, this interim, interim order is without prejudice to the judge hearing a motion for interim support pending trial, or the judge hearing the trial, to retroactively adjust support for July, August, September and October 2013 on the basis of a more complete evidentiary record.
[20] In the circumstances of this case I am not inclined to award costs on this motion. If parties wish to make submissions on costs, they shall provide written submissions, not exceeding five pages, within 20 days.
___”original signed by”
The Hon. Mr. Justice D.C. Shaw
Released: August 12, 2013
COURT FILE NO.: FS-12-0332
DATE: 2013-08-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
FREIDA MARLENE STRUTZENBERGER
Applicant
- and –
PETER ALEXANDER STRUTZENBERGER
Respondent
DECISION ON MOTION
Shaw J.
Released: August 12, 2013
/mls