ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-11-146
DATE: 2013-01-16
B E T W E E N:
Margaret Ottillia Landry
Meghan de Souza, for the Applicant
Applicant
- and -
Gerald Joseph Landry
Unrepresented
Respondent
HEARD: December 13, 2012,
at Thunder Bay, Ontario
J. dep. Wright, J.
Reasons For Judgment
Relief Claimed:
[1] This is a motion for interim spousal support. The applicant wife also asks for an order extending the time for setting the matter down for trial and granting leave to amend her statement of claim to plead a constructive trust.
Background:
[2] The wife is 58 years of age. Her husband is 60. They began cohabiting in 1974, were married in 1984 and separated in 2010. The wife did not finish high school in her youth but acquired a high school equivalency diploma several years ago. She has now been working as a home care worker for a native child care agency for the past few years, the income from which is tax-free. In 2011 she received $10,635.00 tax free from employment and $3,271.00 from Employment Insurance Benefits. The husband was a boilermaker but is now on Workers Compensation as a totally disabled person. His annual income in 2011of $46,024.00 was derived from Workers Compensation payments amounting to $45,854.00 which sum was tax-free and interest and other investment income of $170.00. The husband shares accommodation with a woman who was severely handicapped and in receipt of Worker's Compensation as well but, it is said, at a lower rate of pay because of the long-standing nature of her disability.
Spousal Support Guidelines:
[3] The wife asks that she be awarded support at the high-end of the spousal support guidelines. Printouts of these calculations submitted by her purport to show that payments of $1,526.00 per month as asked would result in the wife having net disposable income slightly in excess of the husband's. I do not understand his obligation to ensure that his wife has an income equal to or greater than his own. His obligation, so far as it is possible, is to try to ensure that the wife does not suffer a fall in her standard of living and if she does, that this decline in the standard of living be shared by the two of them although not necessarily equally.
[4] There are some difficulties with the Spousal Support Guidelines calculation tendered to the court on behalf of the wife. That calculation was based upon the parties income as represented by income in 2011. The husband’s tax-free Workers Compensation benefits of $45,854.00 are said to have been "grossed up" automatically by the program to yield an effective income of $56,849 per year.
[5] On the wife’s side, I understand that in calculating the suggested Spousal Support Guideline amount her lawyer grossed up the wife’s earned income by applying the minimal marginal rate of 30% to her total earned income. Her lawyer disregarded the wife’s Employment Insurance Benefits of $3,271.00 on the ground that she was no longer in receipt of these benefits.
[6] If the Divorcemate program was used to gross-up the husband’s income I believe that given the vagaries of “gross-up” it should be used for the wife as well. I have some doubts that a straight calculation using the marginal rate on the total sum earned is fair to the wife. For one thing I assume her full income of $10,635.00 was used whereas I would assume that an accountant might say that the gross-up should only be calculated on the amount in excess of the total allowed for personal deductions for tax purposes. On the other hand, the Employment Insurance Benefits which were left out of the calculation were meant to represent replacement for income that, but for the unemployment, would have been earned. One might argue that a more accurate reflection of the wife’s income might be obtained by simply extrapolating the $10,636.00 to cover the period of unemployment. Presumably the income that would actually be earned over a period of that duration would exceed the amount of the Employment Insurance Benefits for the same period. However, I shall proceed on the basis of actual receipts in 2011.
[7] Running these figures through Divorcemate seems to produce Annual Guidelines Income for the Husband of $54,647.00 and for the wife of $14,161.00, a sum marginally less than the $14,196.00 arrived at by using the solicitor’s calculation of the wife’s grossed up earned income but ignoring the EI benefits. These produce a range of payments from $1,265.00 to $1,378.00 per month.
Means and Needs:
[8] While the spousal support guidelines are a useful guide, the realities of the situation, being the needs of both parties and the resources available to them, must also be taken into consideration. This analysis is done on the basis of actual income. There is no sense engaging in a fiction that because no tax is payable additional income must be attributed. The fact that this person’s income is worth more to him than to someone who pays tax on the same amount is reflected on a means and needs analysis by the fact that while his income is not “grossed-up” and he appears to have less “means”, he has no tax expense so has less “needs”. In other words, using actual figures for “means and needs” a party may be shown to have less gross income but more disposable income.
Wife:
[9] The wife produces a statement showing current expenses of $19,104.00. Given her resources of $13,906.00 she needs $5,198.00 per year to balance her current budget or $433.16 per month.
[10] Counsel for the wife argues that her current figures represent what is and not what ought to be. She argues that these actual figures should be increased to provide a proper standard of living. I agree. I would increase her budget as follows:
Item
Additional Accepted
Hydro: this is a transfer of responsibility for paying the hydro from the husband to the wife so the wife is not subject to uncertainty.
$120.00
Home repairs
$100.00
groceries
$100.00
Meals outside the home
$100.00
Auto: Gas & oil for car: I have not increased her current budget for gas and oil because I consider the current budget is adequate. The basic amount claimed is quite acceptable ordinarily but the wife has two advantages: she is eligible for tax reduced gasoline and she receives mileage for business travel. The husband argues that this payment is substantial and should be considered as income. I do not agree. Such payments are meant to reimburse the employee for the total actual expenses incurred in operating the car for business purposes, not just gas. But no more.
$0.00
Auto: repairs (see comments above. Some portion of her travel reimbursement represents car maintenance)
$50.00
Dental expenses
$10.00
clothing
$50.00
Entertainment and recreation
$15.00
gifts
$0.00
Debt payment
$30.00
Auto Car Insurance: Another transfer of responsibility. The husband has been paying this but there is no reason why the wife shouldn’t pay it so she knows she has coverage.
$90.00
total
$665.00 or $7,980.00
Increasing the wife’s existing expenses of $19,104.00 by $7,980.00 gives us a need for $27,084.00. With resources of $13,906.00 the wife has a shortfall of $13,178.00 or $1,098.16 per month.
Husband:
[11] The husband produces a statement showing current expenses of $47,094.00. Counsel for the wife challenges some of the husband’s expense items. She submits that reductions should be made to his budget.
Item
Reduction accepted
Home repairs: The husband shares accommodation with another person in her home. He contributes $600.00 a month to the home and claims another $300.00 a month for repairs.
$150.00
Telephone: no explanation was given for this amount of $120.00.
$60.00
Food:
$100.00
Meals outside the home
$150.00
Pet care
$50.00
Dental
$60.00
Eye care
$40.00
Books and newspapers
$40.00
entertainment
$50.00
Gifts
$25.00
Wife’s car insurance: this has been transferred to the wife to pay. Taking it out of the husband’s expenses gives him a corresponding sum with which to reimburse the wife for this expense.
$90.00
Wife’s hydro: see the note regarding car insurance.
$120.00
Total
$935.00 or $11,220.00
Decreasing the husband’s existing expenses of $47,094.00 by $11,220.00 gives him a need for $35,874.00. With resources of $46,024.00 the husband has a surplus of $ 10,150.00 or $845.83 per month.
[12] The difference between the wife’s need of $1,098.00 and the husband’s ability to pay of $845.00 is $253.00. Splitting this between the parties equally would have the husband paying $971.00 per month.
[13] Given the result of the Spousal Support Guideline suggested range I would round this off at $1,020.00 per month.
[14] Order to go:
a) extending the time for setting this action down for trial to 13 December 2013,
b) granting leave to the wife to amend her statement of claim to plead a constructive trust, and
c) directing the husband to pay to the wife for interim spousal support the sum of $1,020.00 commencing 1 December with the husband to receive credit for all sums paid to the wife for her support including hydro and insurance since that date.
[15] I may be spoken to regarding costs and any other issue not dealt with.
The Hon. Mr. Justice J. deP. Wright
Released: January 16, 2013
COURT FILE NO.: FS-11-146
DATE: 2013-01-16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Margaret Ottillia Landry
Applicant
- and –
Gerald Joseph Landry
Defendant
REASONS FOR JUDGMENT
J. deP. Wright J.
Released: January 16, 2013
/mrm