SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 471/12 Guelph
DATE: 20130131
RE: Jordanna Marie McCormick
Applicant
v.
Christopher John McCormick
Respondent
BEFORE: Conlan J.
COUNSEL: Randy S. Brant, for the Applicant
Anna Towlson, for the Respondent
E N D O R S E M E N T
Conlan J.
Introduction
[1] The primary issue before the Court is the imputation of income for the purposes of child and spousal support.
[2] Two Motions, both brought by the Applicant, were argued before me in Guelph on 29 January 2013. I reserved my decision.
[3] I am thankful to counsel for their helpful submissions and the thorough materials filed.
The Facts
[4] The Applicant (“Ms. McCormick”) is 51 years old. The Respondent (“Mr. McCormick”) is 43 years old.
[5] The parties were married for about 18 years. They separated in 2011. They lived together for approximately six months before their marriage in 1993.
[6] They have one child, a daughter, now 8 years of age. There is a shared custody arrangement.
[7] Ms. McCormick works part-time as a labourer. She was formerly a nurse.
[8] Ms. McCormick has a history of substance abuse and post-traumatic stress disorder.
[9] Mr. McCormick works full-time for the University of Guelph Campus Community Police. He was formerly a Sergeant with the Guelph Police Service.
The Secondary Issues
Striking Documents from the Record
[10] In Ms. McCormick’s second Motion, she asks that two Exhibits to Mr. McCormick’s Affidavit sworn on January 10, 2013 be struck on the ground that they contain settlement discussions.
[11] Exhibit C is a series of correspondence between the lawyers. Counsel for Mr. McCormick submits that the documents should not be struck.
[12] Frankly, I am puzzled as to why it has become a trend to append to affidavits in family law cases correspondence between the lawyers. Generally, the correspondence is rarely determinative and often not even relevant to the decision(s) that the Court must render.
[13] In any event, at least some of the documents at Exhibit C refer to settlement discussions, such as whether Ms. McCormick will receive a lump sum of $20,000.00 as an advance payment towards equalization of net family property or as a credit towards spousal support. Those documents that refer to settlement discussions are privileged and inadmissible.
[14] It is impossible to remove certain documents from Exhibit C while maintaining some sense of the others. Thus, I order that all documents at Exhibit C shall be removed from the Continuing Record.
[15] Exhibit H is a series of e-mails between the parties. They clearly contain settlement discussions on the issue of spousal support. As counsel for Mr. McCormick took no real position on whether they ought to be struck, I order that all documents at Exhibit H shall be removed from the Continuing Record. They are privileged and inadmissible.
Ms. McCormick’s Personal Documents
[16] On consent, I order that Mr. McCormick shall forthwith return to Ms. McCormick all of her personal documents.
Financial Disclosure
[17] On consent, I order that Mr. McCormick, having already filed with the Court his complete 2011 tax return, shall provide to Ms. McCormick his 2011 tax year Notice of Assessment and Re-Assessment, if any, forthwith upon receipt of same.
[18] Counsel for Mr. McCormick requested that the same apply to Ms. McCormick. That is appropriate. So ordered.
Affidavits of Documents
[19] On consent, I order that the parties shall exchange Affidavits of Documents by a deadline agreed to by counsel.
Insurance and Benefits
[20] Ms. McCormick seeks an order that Mr. McCormick maintain health insurance benefits coverage for her and their daughter.
[21] I am advised that the said relief is moot as proof of the same has been provided. If not, I make the order requested.
[22] Ms. McCormick seeks an order that Mr. McCormick designate her as the beneficiary under his life insurance policy. On consent, I make that order.
[23] Counsel for Mr. McCormick asks that the same apply to Ms. McCormick. That is appropriate. So ordered.
Non-Depletion of Assets
[24] Ms. McCormick requests a non-depletion of assets order vis a vis Mr. McCormick. On consent, I make that order.
[25] Counsel for Mr. McCormick asks that the same apply to Ms. McCormick. That is appropriate. So ordered.
Section 7 Expenses for the Child
[26] Ms. McCormick asks for an order that Mr. McCormick be responsible for his proportionate share of the child’s section 7 expenses. On consent, I make that order.
Retroactivity of Child and Spousal Support
[27] Ms. McCormick asks that any child and spousal support ordered payable by Mr. McCormick be retroactive to November 1, 2012, about 13 months after the date of separation in October 2011 and about six weeks before the date of the Applicant’s first Motion that is the subject of these Reasons.
[28] That relief is opposed by Mr. McCormick. He has been making support payments voluntarily. He is concerned about whether Ms. McCormick has squandered money.
[29] This issue was only briefly discussed by counsel during oral submissions. The written argument on behalf of Ms. McCormick includes the request but nothing further.
[30] The request is denied. I see no basis for it.
[31] I order that the child and spousal support ordered payable herein shall commence on January 1, 2013.
The Primary Issue: Child and Spousal Support – The Incomes of the Parties
[32] I thank counsel for the Divorcemate calculations that have been filed.
The Positions of the Parties
[33] Ms. McCormick’s position is that an employment income of $105,000.00 per annum, gross, ought to be attributed to Mr. McCormick, with $7,500.00 as her gross yearly employment income.
[34] Alternatively, Ms. McCormick submits that Mr. McCormick’s gross annual income ought to be imputed at $84,400.00 to $94,000.00 - $70,000.00 employment income plus $14,400.00 to $24,000.00 as income from funds received by Mr. McCormick from family members staying at the matrimonial home where he resides and contributing to the household expenses.
[35] Mr. McCormick submits that his actual current gross annual employment income from University of Guelph Campus Police ought to be used, about $68,000.00. Alternatively, if income is imputed to him, the figure ought to be $90,951.81, his gross annual employment income from Guelph Police Service as reflected in his 2011 income tax return.
[36] Either way, submits Mr. McCormick, the money received from family members towards household expenses ($1,200.00 per month according to counsel for Mr. McCormick during oral submissions) should be ignored.
[37] Regarding Ms. McCormick, the submission is that employment income ought to be attributed to her at $55,129.00 or $31,200.00 gross per annum, the former on the basis of a return to nursing part-time (three shifts per month), and the latter on the basis of full-time employment at Ms. McCormick’s current hourly wage rate of $15.00.
The General Law of Spousal Support
[38] Although Ms. McCormick’s entitlement to spousal support is not contested, a few comments may be instructive.
[39] The current law of spousal support in Canada offers a fairly expansive basis for entitlement. Generally, if there is a significant income disparity between the parties after separation, there will be an entitlement to some spousal support.
[40] The decision of the Supreme Court of Canada in Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813, created a broad basis for compensatory claims for spousal support based on economic disadvantage from the marriage or the conferral of an economic advantage on the other spouse.
[41] In Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 S.C.R. 420, the need basis for spousal support was outlined by the Supreme Court of Canada. A spouse may advance a non-compensatory claim based on need or hardship created by the loss of the marital standard of living.
[42] “Indefinite” spousal support does not mean permanent spousal support. It simply means that the order is without a time limit at the time that it is made. Indefinite support orders remain open to variation as the circumstances of the parties change, and the orders may have review conditions attached to them. In other words, indefinite spousal support means support that is subject to the normal process of variation and review.
[43] Indefinite spousal support orders are more common in long marriages (twenty years or more).
[44] A strong compensatory claim generally favours a spousal support award at the higher end of the ranges regarding both duration and quantum. Similarly, a strong compelling need on behalf of the recipient will generally result in a spousal support award that is longer and higher in amount. There are other factors that affect duration and quantum, and some of these considerations are specified in the Divorce Act: age, number, needs and standard of living of children; needs and ability to pay of the payor; work incentives for the payor; property division and debts; and self-sufficiency incentives.
The Legal Test for Imputation of Income
[45] I thank Mr. Brant for providing me with two leading decisions on this issue: Bak v. Dobell, 2007 ONCA 304, [2007] O.J. No. 1489 (C.A.) and Drygala v. Pauli, 2002 41868 (ON CA).
[46] Counsel agree on a three-step approach. First, is the spouse intentionally underemployed or unemployed? If so, is the intentional underemployment or unemployment required by virtue of the needs of the child or the education or health of the spouse? If no, what income is appropriate to be attributed to the spouse?
[47] I agree. That is precisely the legal test as set out by the Court of Appeal for Ontario in Drygala, supra, at paragraph 23.
[48] Using that approach, I have concluded that neither spouse ought to have income attributed or imputed to him or her.
[49] Regarding Mr. McCormick, he is intentionally underemployed. That is not really disputed. He voluntarily left a higher paying job as a Sergeant with Guelph Police Service.
[50] But his stated reasons for doing so are mainly because of the needs of the child. I accept that. It is reasonable. His Affidavit material, briefly summarized, makes it clear that he wanted to ensure that he could spend sufficient time with his daughter whom he had shared custody of.
[51] Notwithstanding Mr. Brant’s able submissions, I conclude that Ms. McCormick has failed to prove on balance the second part of the test.
[52] Regarding Ms. McCormick, I find that not even the first part of the test has been proven on balance. She is not intentionally underemployed. She is a lady who has been through a lot, including substance abuse and post-traumatic stress disorder. She is not a good candidate to return to a nursing career, and besides, there is no evidence that the said employment is reasonably available to her. She has improved her situation by putting herself in a position to be a heavy equipment operator, but that is recent. There is no evidence that full-time employment in that field is reasonably available to her.
[53] Regarding the funds received by Mr. McCormick from family members staying at the matrimonial home, I am not satisfied that the said money ought to be considered income for support purposes in the context of this interim Motion. The funds are contributions to the up keeping of the matrimonial home, which notion both parties appear to stand behind. In addition, I have insufficient evidence as to the permanency of the said contributions.
Conclusion
[54] Counsel shall do the support calculations using $70,000.00 as the annual gross income for Mr. McCormick and $7,500.00 as the annual gross income for Ms. McCormick.
[55] As requested by counsel for Ms. McCormick, the mid-range figure shall apply. This case is close, however, to the high range.
[56] I order that Mr. McCormick shall pay to the Applicant the calculated child support amount on the first day of each and every month commencing January 1, 2013.
[57] I order that Mr. McCormick shall pay to the Applicant the calculated spousal support amount on the first day of each and every month commencing January 1, 2013.
[58] A Support Deduction Order shall issue.
[59] Temporary Order accordingly.
[60] Best wishes to the parties moving forward. “Most important, maintain your cooperation with regard to your daughter”.
[61] Should counsel not be able to settle the issues of costs, they may contact the Trial Coordinator in Owen Sound to schedule a further Court attendance to deal with that issue, briefly. That contact shall be made within 10 days of the release of these Reasons. Counsel may attend that further Court attendance, if necessary, by teleconference.
Conlan J.
DATE: January 31, 2013
COURT FILE NO.: 471/12 Guelph
DATE: 20130131
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jordanna Marie McCormick
Applicant
Christopher John McCormick
Respondent
BEFORE: Conlan J.
COUNSEL: Randy S. Brant, for the Applicant
Anna Towlson, for the Respondent
ENDORSEMENT
Conlan J.
DATE: January 31, 2013