ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-12-0082
DATE: 2013-01-25
B E T W E E N:
Robert Sydney Dilley
John G. Illingworth, for the Applicant
Applicant
- and -
Clementina Maria Ribeirinho Dilley
Mary Ann Currie for Keith Elliot, for the Respondent
Respondent
HEARD: December 20, 2013,
at Thunder Bay, Ontario
J. dep. Wright, J.
Reasons For Judgment
Background
[1] The husband is 70 years of age. The wife is 62. They were married 02 June 1979. They raised four daughters. They separated in August 2009. The husband worked as a geography professor at Lakehead University. He retired about the time of the separation but has taught part-time since then. The wife did not work outside of the home.
Matters Agreed Upon
[2] The parties have agreed that, on an interim basis the husband shall:
a) continue to cover the wife on his extended medical and dental insurance available through his former employer. He shall provide the wife with the plan numbers and other information necessary for her to access that plan.
b) designate the wife as the beneficiary of one half of his Life Income Fund,
c) designate the wife as a beneficiary of his Life Insurance policy with the Royal Bank being policy #552111 in the amount of $54,000
Matrimonial home
[3] The matrimonial home at 1287 Lakeshore Dr., Shuniah, is jointly owned. The house is now standing empty on a large lot in a desirable location. Both want to sell the house. Both want to obtain the most money possible for it.
[4] The house is currently listed on a Multiple Listing Basis for $139,900 a sum that will not quite cover the discharge of mortgage and costs of sale. It seems to be accepted that ordinarily houses of this size in this neighborhood would list for $190,000-$200,000.
[5] Rhonda Greer sales rep for Century 21 testified. In her opinion, even if the house was in good shape it would not list for $190,000-$200,000. She recommended listing the house, as is, for $139,900. Even in good condition there are aspects of the house that detract from its value. Disrepair is a major impediment. It requires new shingles and foundation posts. The floor must be repaired and cracked Windows replaced. The furnace is not working. It is being heated at the present time by large electric space heaters. Contractors are not available. They are busy because of the flood last spring. Natural gas is now available in the neighborhood but this house is heated electrically. The floor plan of the house is not attractive. The bathroom is downstairs and is very small.
[6] Ms. Greer testified that the market is “hot” right now with some properties going for more than the listing price. Not this house. There have been two open-houses. She received an offer of $130,000. She thinks the man might have gone to $140,000 because he was a contractor. This motion spoiled that possibility.
Relief Sought By Wife:
[7] The wife wants the court to order the husband:
a) to obtain the opinion of an accredited appraiser as to value,
b) to obtain an estimate of the reasonable repairs that are necessary to restore the house to reasonable condition for sale,
c) To carry out those repairs subject to a subsequent accounting between the parties,
d) to renew the insurance which is said to expire on December 25,
e) to pay the costs, subject to subsequent accounting between the parties, of maintaining the insurance, mortgage, heat and snow removal, pending sale
f) to do nothing to hinder the wife from entering the property after at least seven days notice,, cleaning it up and “staging” it for viewing,
[8] The husband takes the position that although there may be a deficit if the house is sold at the present time, this cannot be avoided.
[9] The Husband’s pension from the University is tied up in a LIF. I understand that he is able to draw $12,685 per month from it at the present time. This amounts to $152,220 per year. In addition he has CPP of $7,884 and teaching income of $6,000. The husband claims to be paying jointly owed matrimonial debts. The wife suggests that the amount claimed may only be the carrying charges. Given his obligation to the wife for equalization there is not a lot of excess money for repairs. Jobs such as the roof and foundation footings would have to await spring. As already noted, contractors are busy with a backlog of emergency repairs. The usual practice for someone in the wife’s position is to buy the other spouse’s interest using the value the other spouse expects the house will realize, fix the house then sell it for the value she believes it to be actually worth.
[10] That course of action does not seem to be open to her. She claims that she has received no spousal support since the separation and is living on the charity of her family. These repairs would do nothing to ameliorate the adverse effect of the poor floor plan and of the bathroom upon value.
[11] The realtor’s opinion on value was given by a person from a reputable firm who is deeply involved in the day to day working of the local real estate market. She accepted the general range of values that houses in the area might carry but gave explicit reasons for modifying that general value in this case. I see no reason to believe that, in this case, a formal opinion by an accredited land appraiser would make any difference. If the true value exceeds the asking price one might anticipate that the market might reflect this. It does no good, however, to throw roadblocks in the way of a speedy sale. Some times “the first loss is the best loss”.
[12] The husband shall have exclusive possession of the house subject to the wife’s right to enter the property after giving at least seven days notice,, clean it up and “stage” it for viewing,
[13] The house is to remain listed for $139,900 unless the parties agree otherwise.
[14] Neither is to do anything that would hinder a reasonable sale.
[15] All offers are to be communicated to both parties.
[16] In the meantime the husband shall pay the Mortgage, hydro, insurance and snow removal, subject to these sums being the subject of a subsequent accounting.
Spousal Support
[17] The wife needs cash. She has a claim for a substantial equalization payment. The husband takes the position that a significant amount of any spousal support would be “double –dipping” since it would be paid from his pension, a large portion of which is the basis for her property equalization. I understand that the parties have agreed that eventually the husband will transfer the bulk of the equalization payment from his pension funds in a tax-free rollover. In the interim he is prepared to make monthly payments to her. This money will be considered to be advance payments on her equalization claim. I gather that the husband will pay the tax on the withdrawal of the money from his RIF and transfer it to the wife as a tax-free payment of capital.
[18] There are therefore three issues: Should the husband pay spousal support? If so, how much, what is an appropriate figure for interim payments of equalization?
Should the Husband Pay Spousal support?
[19] The wife needs support. She will be receiving interim payments on account of equalization. These are treated as payments of capital. There is law that a spouse should not ordinarily be expected to utilize capital for her support. In this case those payments will be primarily based upon the husband’s pension. While this is treated as a capital asset its purpose is the provision of support and is being used as such by the husband. The wife can be expected to use it for support as well.
How Much Should The Husband Pay For Support
[20] My understanding is that the total pension was valued at $1,609,930. Of this $403,851 was exempt from equalization being attributed to pre-marriage contributions. This represents 25% of the total. If spousal support was based upon the total income generated by this asset then there would be ‘double-dipping’. Income generated by the exempt 25% is not double dipping.
[21] If the total pension generates a monthly income of $12,685 then 25% of this is $3,171. per month. Add to this his CPP of $705 and employment income of $500 then $4,380 is available for calculating spousal support.
[22] Creating a Spousal Support Guideline calculation based upon the husband having income of $4,380 ($52,560) and the wife hiving income of $4,488 (schedule A) we see that the suggested support ranges from $1,501 to $1,751 to $2,001.
What Has He Available With Which To Make Interim Equalization Payments?
[23] If we accept support at $ 1,750 then the husband has monthly:
gross income $13,890, less:
Taxes and deductions (schedule B) $3,996
Support $1,750
Net disposable income $8,144 less
Upkeep of house $1,500
Joint debts $700
Personal living expenses $4,000
Total $6,200
Balance available to pay on interim equalization payment: $1,944. Say $2,000
[24] The wife would then have:
CPP $374
Benefits and credits $ 48
Spousal support $1,750
Interim Equalization $2,000
Taxes and deductions $276
For personal living expenses $3,896
[25] An Interim Order may issue which shall include those terms agreed upon set out above, and directing that:
a) The husband shall have exclusive possession of the house subject to the wife’s right to enter the property after giving at least seven days notice,, clean it up and “stage” it for viewing,
b) The house is to remain listed for $139,900 unless the parties agree otherwise.
c) Neither is to do anything that would hinder a reasonable sale.
d) All offers are to be communicated to both parties.
e) From the proceeds of sale shall be paid the mortgage, sales commission and any other sums the parties may agree upon.
f) The balance of the sale proceeds are to be held in trust by Mr. Illingworth pending the agreement of the parties or further order of the court.
g) The husband is to arrange for insurance on the house,
h) Until further order the husband shall pay the Mortgage, hydro, insurance and snow removal, subject to these sums being the subject of a subsequent accounting.
i) The husband is to continue to pay at least $700 per month on the joint matrimonial debts subject to a subsequent accounting between the parties,
j) The husband is to pay to the wife for her support commencing May 1 2012 the sum of $1,750 per month.
k) The husband is to pay on account of the sum owing by him for equalization the sum of $2,000 a month commencing February 1 2013
[26] I may be spoken to regarding costs or any other issue not disposed of.
The Hon. Mr. Justice J. deP. Wright
Released: January 25, 2013
COURT FILE NO.: FS-12-0082
DATE: 2013-01-25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Robert Sydney Dilley
Applicant
- and –
Clementina Maria Ribeirinho Dilley
Respondent
REASONS FOR JUDGMENT
J. deP. Wright J.
Released: January 25, 2013
/mrm