ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Roger Morris Bennett
D. Kilpatrick for the applicant
Applicant
- and -
Christine Lynn Bonatsos
Monique Rae Bennett for the Respondent
Respondent
HEARD: July 15, 2013; September 23, 2013; December 13,2013
TEMPLETON J.
AMENDED RULING
[1] The parties were involved in a brief long-distance relationship in 2009. Their daughter Laura was born on April 22, 2010. Mr. Bennett, the Applicant, lives in the United States (the State of New York). Ms. Bonatsos, the Respondent, lives in London, Ontario. Laura lives with her mother in London.
[2] Since the commencement of proceedings by Mr. Bennett on July 23, 2010 counsel for the parties have litigated numerous issues. The process thus far has been highly contentious and tortured. Indeed, there are no less than seven interim orders to date. There have been issues with respect to custody, access, production, and contempt, proof of income and child support. Costs have escalated over time. The six volumes of materials comprising the Continuing Record of the Court are over a foot high.
[3] Because of the delay and acrimony, I ordered that the parties attend for a Special Appointment on September 23, 2013 and scheduled the Settlement Conference and Trial Management Conference to be heard at that time as well. I further ordered counsel to make their submissions in writing. On September 23, 2013 I heard supplementary oral argument.
[4] Over the objection of counsel for Ms. Bonatsos, I allowed counsel for Mr. Bennett an extension of time to provide his client’s American income tax information. I received those materials and supplementary written submissions from his counsel on December 13, 2013.
[5] In order to ensure clarity in the litigation to date, it would be beneficial to review the interim orders currently in place with respect to each issue:
a) Custody:
February 15, 2011
→ Ms. Bonatsos was granted interim custody of the child Laura, on consent.
→ Mr. Bennett’s claim for custody was dismissed without costs, on consent.
b) Access:
February 15, 2011
→ Mr. Bennett was granted access to the child at Merrymount Children’s Centre in London for Easter weekend.
June 29, 2011
→ Mr. Bennett was granted supervised access to the child at Merrymount Children’s Centre in London on August 9 and 10, 2011 for two hours each day and two further visits in late September, October or November 2011.
October 21, 2011
→ Mr. Bennett was granted supervised access to the child at Merrymount Children’s Centre in London on October 26 and 27, 2011 for two hours each day.
July 15, 2013
→ Mr. Bennett was granted unsupervised access on a gradually expanding basis in London leading to unsupervised access in his home in the United States.
c) Child Support
February 15, 2011
→ Mr. Bennett was ordered to pay $529 per month for the support of the child in accordance with the Guidelines on the basis of an annual income of $57,000. This order was without prejudice to proof of his actual income.
June 29, 2011
→ Mr. Bennett was ordered to pay retroactive child support for the months October, November, and December 2010 in the amount of $529 per month (total $1587). This order was without prejudice to the claim for child support commencing May 1, 2010 (the child’s birth).
July 26, 2012
→ Mr. Bennett was ordered to pay the amount of $1587 (as previously ordered on June 29, 2011) no later than 4:30 p.m. July 27, 2012.
d) Section 7 Expenses
June 29, 2011
→ Mr. Bennett was ordered to pay his proper contribution toward the after tax cost of daycare in accordance with s. 7(1)(a) of the Guidelines.
→ Both parties were ordered to pay their proper contribution toward other special and extraordinary expenses pursuant to s. 7 incurred for the benefit of the child.
→ Both parties were ordered to share the child’s s. 7 expenses proportionately including the net after tax day care expenses retroactive to October 1, 2010. For this purpose, Mr. Bennett’s income was $52,239.
→ Ms. Bonatsos’ claim for contribution toward the cost of the child’s layette was dismissed.
e) Costs:
June 29, 2011
→ The costs claims by Ms. Bonatsos for:
a) $3218.40 - legal costs; (para 10)
b) $3000.00 - legal costs; (para 11)
c) $3500.00 – legal costs; (para 12) were reserved to the trial judge;
→ Ms. Bonatsos’ claim for costs in the amount of $3500 (para 13) was dismissed.
→ Mr. Bennett was ordered to pay costs in the amount of $1500 and provided 6 months to pay this amount and other amounts payable under the order.
October 21, 2011
→ Ms. Bonatsos was ordered to pay $1500 to Mr. Bennett forthwith.
February 7, 2012
→ Mr. Bennett was ordered to pay all amounts owing under the order of June 29, 2011 within 7 days but for the payment of costs in the amount of $1500, which was to be paid by February 10, 2012.
→ The motion for security for costs was adjourned sine die on 4 days’ notice; as was costs for the motion.
August 17, 2012
→ Both parties were ordered to prepare written submissions with respect to:
a) Costs arising out of the delay of satisfaction of prior Court orders;
b) Costs of all motions;
c) Security for costs;
July 15, 2013
→ The issue of costs with respect to access was adjourned to the trial judge.
f) Production/Disclosure
June 29, 2011
→ Mr. Bennett was ordered to satisfy all productions #1-17 listed in Schedule ‘A’ to the order within 30 days.
February 7, 2012
→ Mr. Bennett was ordered to produce and deliver the benefit book by courier within 48 hours. The book was to include reference to dependents, if in the original version.
→ Mr. Bennett was ordered to produce and deliver the depreciation information as requested by February 10, 2012.
August 17, 2012
→ The parties were ordered to prepare written submissions regarding the relevance of an opinion concerning the depreciation information and the necessity of an opinion concerning the depreciation information.
g) Contempt
February 7, 2012
→ Ms. Bonatsos’ motion for contempt was adjourned to a date to be set.
[6] The issues to be decided at this stage of the proceedings are:
a) The quantum of Mr. Bennett’s annual income;
b) The quantum of child support payable by Mr. Bennett pursuant to the Guidelines;
c) The annual income of each of the parties to determine the proportionate contribution of each party to the child’s expenses entitled to be claimed under section 7 of the Guidelines;
d) Disposition of the Respondent’s claim for retroactive orders with respect to child support and s. 7 expenses.
e) The Respondent’s motion for contempt;
f) The Respondent’s motion for security for costs; and
g) Costs payable by either party, if any, with respect all motions and claims to date.
A. Mr. Bennett’s income
[7] Section 20(1) of the Child Support Guidelines provides that where a parent is a non-resident of Canada, the parent’s annual income is determined as though the parent were a resident of Canada.[^1]
[8] In determining annual income, a court is to consider the amount of income set out under the heading “Total Income” in the T1, General form issued by the Canada Revenue Agency. It is then adjusted in accordance with Schedule III of the Guidelines. The court may also take into account his/her pattern of income, non-recurring losses, reasonableness of expenses and, as indicated, higher tax rates the payor may be obliged to pay.
[9] The fact that a payor resides in another country and earns income in another currency raises a number of issues that must be dealt with in order to comply with section 20(1) of the Guidelines. In this case, three issues need to be addressed and are dealt with below.
(i) Definition of Income
[10] In the United States, three “wage” amounts are entered onto a form called a W-2 Wage and Tax Statement. This form is similar to the Canadian “T-4” statement received by Canadian employees and is created for the purpose of reporting to the government income generated during the previous calendar year.
[11] The parties obtained expert opinions with respect to which of the three wage amounts ought to be used in satisfaction of the requirement that Mr. Bennett’s income be treated as though he were a resident of Canada.
[12] Box 1 on the W-2 Wage and Tax Statement reports the total taxable wages earned for federal income tax purposes. The amount in Box 1 does not include, however, any pre-tax benefits such as savings contributions, health insurance or other types of pre-tax benefits received by the wage earner. Box 3 on the W-2 Statement reports the total amount of wages which is subject to a Social Security tax. Box 5 on the W-2 Statement reports the total amount of wages subject to a Medicare tax.
[13] The differences in the amounts reported on the W-2 Statement are based on those portions of Mr. Bennett’s income to which different considerations are to be applied.
[14] The breakdown of gross income for differential tax rate purposes does not exist in Canada. Line 150 of the Canadian Income Tax Return requires the disclosure of the payor’s gross income from all sources and includes taxable benefits.
[15] In this case therefore, the court is required to use the statement from Mr. Bennett’s employer showing his year-to-date earnings and his statement showing his gross rental income (subject to allowable deductions) in order to determine his annual income for child support purposes. This is the amount reflected in Box 3 and in Box 5 of his W-2 Wage and Tax Statement[^2].
(ii) Appropriate Deductions
[16] With respect to the issue of allowable deductions, it is important to note that section 11 of Schedule III to the Guidelines requires the Court to include a parent’s deductions for an allowable cost allowance with respect to real property. Mr. Bennett has properly conceded that a deduction for depreciation is not an allowable deduction under the Guidelines.
[17] Further, the Ontario Court of Appeal in Eager v. Graves (2002), 2002 45104 (ON CA), 29 R.F.L. (5th) 313 has found that reductions in rental income for “hard costs” relating to rental income would be appropriate for the purpose of calculating child support but not all deductions are necessarily allowable. In Eager, the court determined that a deduction for the costs of mortgage interest, property taxes and insurance relating to the rental property would be appropriate. It is unclear in Eager, however, whether the tenant was responsible for the payment of the costs relating to heat, hydro and water for the rented unit.
[18] In my view, the cost of utilities (heat and hydro), water and sewer would also be appropriate deductions if the owner is paying these costs. These services are essential to the successful rental of the property and generation of rental income. Where the costs are included in the rental income from the tenant, as in this case, a deduction for these essential services is appropriate. Where the tenant is paying for these services in addition to rent, however, a deduction would not be appropriate.
[19] For all of these reasons, I have calculated Mr. Bennett’s annual income on the basis of his year-to-date income plus rental income (less costs of insurance, mortgage interest, taxes, utilities, and water).
[20] In the result, I find that Mr. Bennett’s income has been as follows for child support purposes:
2010: 60,590 (year to date: Dec. 24/2010)
32,322 (rents received)
43 (interest)
1,612 (insurance)
19,007 (mortgage interest)
2,791 (taxes)
3,166 (utilities)
1,200 (water + sewer)
$ 65,179 USD
2011: 61,098 (year to date: Dec.23/2011)
32,322 (rent received)
32 (interest)
1,602 (insurance)
17,501 (mortgage interest)
3,032 (taxes)
4,214 (utilities)
1,204 (water + sewer)_
$ 65,899 USD
2012: 61,294 (year to date: Dec. 21/2012)
- 32,322 (rent received)
29 (interest)
1,602 (insurance)
14,329 (mortgage interest)
3,052 (taxes)
4,152 (utilities)
590 (water + sewer)
$ 69,920 USD
(iii) Exchange Rate
[21] I did not receive any submissions from counsel in this regard and yet it is a significant factor that cannot be overlooked. The application of an exchange rate can enure to the benefit of either the child or the payor and must be taken into account in order to comply with section 20 (1) of the Guidelines. It is particularly important when assessing the prorated contribution of each party with respect to section 7 expenses of the child.
[22] The above-noted annual income has been calculated in U.S. dollars. As I have just indicated, the application of Section 20(1) of the Guidelines obliges a calculation of Mr. Bennett’s income in Canadian dollars. The highest and lowest exchange rates for each year are available on the Bank of Canada website. I find that it is reasonable to use an average of the highest and lowest rates for each calendar year to calculate the appropriate exchange rate to be applied to Mr. Bennett’s income in order to convert it from American to Canadian currency.
[23] In 2010, the Bank of Canada website indicates that the lowest rate of exchange was $.9218 USD for $1 CDN and the highest rate was $1.0069 (USD). The average rate of exchange for 2010 was therefore $.96 USD for $1 CDN. In 2011, the average rate of exchange was $1 USD for $1 CDN (highest: 1.0630; the lowest: .9383). In 2012, the average rate of exchange was again $1 USD for $1 CDN (highest: 1.0371; lowest: .9576).
Conclusion
[24] I have applied these average rates of exchange for each year to Mr. Bennett’s income and therefore find that his income for child support purposes was
2010: $62,571 (CDN);
2011: $65,899 (CDN); and
2012: $69,920 (CDN).
[25] To determine his income for 2013 and thereafter, Mr. Bennett is to apply the same formula as set out above.
B. Child Support
(i) Quantum
[26] On the basis of the annual income determined above, I find that Mr. Bennett’s child support obligation in 2010 was $570 per month; in 2011, it was $602 per month; and in 2012, it was $638 per month.
(ii) Retroactivity
[27] The Supreme Court of Canada has outlined the factors that a court should take in to account with respect to retroactive applications.[^3] These factors are: the reason why support was not sought earlier; the conduct of the payor parent; the circumstances of the child; and, any hardship occasioned by an order that is retroactive. None of these factors take priority over the other. When ordered, an award for support should generally be retroactive to the date when the recipient gave the payor effective notice of his or her intention to seek support. That date represents a fair balance between certainty and flexibility^4.
[28] Ms. Bonatsos prepared and claimed support for Laura in her Answer dated August 20, 2010. Taking into account the evidence before me and the factors set out above, I find that it is appropriate that the child support order be retroactive to when the claim was made by Ms. Bonatsos. It is also appropriate, however, that sufficient time be provided to Mr. Bennett to pay any arrears that may arise from the retroactive nature of the order. There is no doubt that a retroactive award will cause a financial hardship for him that must be redressed.
Conclusion
[29] An order shall therefore issue with respect to child support for Laura as follows:
(a) Commencing September 1, 2010 and payable on the first day of each month thereafter, Mr. Bennett will pay $570 per month for the support of the child in accordance with the Guidelines and on the basis of an annual income of $62,571 (CDN) which income was calculated using the average currency exchange rate of .960 for 2010 and applied to Mr. Bennett’s income of $65,179 (USD);
(b) Commencing January 1, 2011 and payable on the first day of each month thereafter, Mr. Bennett will pay $602 per month for the support of the child in accordance with the Guidelines and on the basis of an annual income of $65,899 (CDN) which income was calculated using the average currency exchange rate of 1.0 for 2011 and applied to Mr. Bennett’s income of $65,899 (USD);
(c) Commencing January 1, 2012 and payable on the first day of each month thereafter, Mr. Bennett will pay $638 per month for the support of the child in accordance with the Guidelines and on the basis of an annual income of $69,920 (CDN) which income was calculated using the average currency exchange rate of 1.0 for 2011 and applied to Mr. Bennett’s income of $69,920 (USD);
(d) Any and all support payments made by Mr. Bennett since September 1, 2010 shall be applied to his credit;
(e) Any and all arrears that may be owing as a result of this order shall be paid on the first day of each month in the amount of $100 per month commencing April 1, 2014 until September 1, 2014 at which time the monthly payment shall increase to $150 per month until the arrears are paid in full;
(f) The amount of monthly child support that ought to have been paid in the year 2013 and ought to be paid in the year 2014 and thereafter will be calculated in accordance with the formula prescribed herein. For clarity, that formula is as follows:
(i) Mr. Bennett’s income will consist of his year-to-date income from employment + interest income + rental income (less deductions for the cost of mortgage interest, insurance, property taxes, utilities, water and sewer);
(ii) The average currency exchange rate[^5] for the year as determined by the Bank of Canada will be applied to the income determined above to convert Mr. Bennett’s income from US funds to Canadian funds;
(iii) The monthly amount of child support owing will then be calculated in accordance with the Guidelines.
C. Section 7 Expenses
[30] Section 7(1) of the Guidelines states that a court may provide for an amount to cover all or any portion of expenses listed in that section. The factors to take into account are that (a) the expense be necessary in relation to the child’s best interests; and (b) the expense be reasonable in relation to (i) the means of the parents and the child and, (ii) the spending habits of the parents in respect of the child during cohabitation. The two primary factors are therefore the necessity and reasonableness of the expense.
(i) Tax credits and benefits
[31] Section 7(3) of the Guidelines provides that in determining the amount of the expense to be paid, the court is obliged to take into account any subsidies, benefits or income tax deductions or credits that are available relating to the expense and any eligibility to claim for these benefits.
[32] In Canada, the cost of childcare qualifies as an income tax deduction to a yearly maximum of $7000. A tax payor may also claim $500 annually for expenses relating to the child’s fitness and $500 annually for expenses relating to the arts for the child.
Conclusion
[33] In calculating the costs pursuant to section 7 to which Mr. Bennett must contribute these three tax deductions or benefits must be applied.
(ii) The universal childcare benefit
[34] The Guidelines are clear that in determining the amount of a section 7 expense, the court shall not take into account any universal child care benefit or any eligibility to claim that benefit[^6]. But section 3.1(b) of Schedule III to the Guidelines directs that to calculate income for the purpose of determining an amount under section 7, the court is to make an adjustment in respect of universal child care benefits and “(b) include benefits that are not included to determine the parent’s total income in the T1 General form issued by the Canada Revenue Agency and that are received by the parent for a child for whom special or extraordinary expenses are being requested.”
[35] In this case, Ms. Bonatsos is claiming contribution for section 7 expenses. Section 3.1 (b) is therefore applicable. The universal childcare benefit she receives is to be included in a calculation of her income for section 7 purposes. It is not included for the purpose of determining the expense itself.
Conclusion
[36] I note that Ms. Bonatsos declared the child tax benefit in each of her Tax Returns. Her income for the purpose of apportionment of a section 7 expense to each of the parties is therefore as declared on Line 150 of each of her Returns.
(iv) Apportionment of the expenses
[37] On the basis of the evidence before me, I find that for the purpose of calculating the contribution of each party to the s. 7 expenses, the following are the incomes of the parties:
2010 2011 2012
Mr. Bennett $62,571 $65,899 $69,920
Ms. Bonatsos $ 857 $22,983[^7] $93,962
Conclusion
[38] Mr. Bennett’s contribution toward the s. 7 expenses for Laura in 2010 is therefore fixed at 99% commencing September 1, 2010; 74% for the year 2011 commencing January 1, 2011; and 43% for the year 2012 commencing January 1, 2012. Ms. Bonatsos is liable to pay the balance.
(v) The expenses
[39] The cost of childcare is an appropriate expense to be shared on a proportionate basis pursuant to section 7 of the Guidelines. Mr. Bennett submits that the cost of childcare claimed by Ms. Bonatsos is too high. I disagree. An average monthly cost of $1365 (over a twelve month period of time) for fulltime childcare in London, Ontario is not unreasonable.
[40] The allowable pre-tax childcare expenses are fixed as follows:
(a) 2010: $655;
(b) 2011: $1408; and
(c) 2012: $16391.
[41] I have disallowed however, three amounts claimed by Ms. Bonatsos as section 7 expenses. Those claims are (a) the costs of Kindermusik which can be claimed in its entirety as a Children’s Art credit which was introduced by the Canadian government in the tax year 2011 and would not qualify in any event as necessary to the child’s best interests at this age; (b) the childcare cost of $260 for which a receipt dated April 5, 2011 was produced but for which expense there are absolutely no details provided including the name of the payee or when and why childcare services were necessary given other childcare arrangements and expenses; and (c) the childcare cost of $260 for which a receipt dated May 5, 2011 was produced but for which expense there are absolutely no details provided including the name of the payee or when and why childcare services were necessary given other childcare arrangements and expenses.
[42] Although I have identified the allowable pre-tax expenses above, Mr. Bennett’s actual contribution must be calculated on the basis of the after-tax cost of the section 7 expenses.
[43] In each calendar year, a tax payor is entitled to claim a deduction of up to $7000 for childcare. It is not clear why Ms. Bonatsos did not claim a deduction in her tax return for 2010. It is therefore necessary for the parties to adjust the amounts set out in paragraph 39 above to account for the tax deduction available to Ms. Bonatsos prior to fixing the amount actually payable by Mr. Bennett to the expense of childcare after application on a pro-rated basis.
[44] Although I have not dealt with the childcare expense for the year 2013 or thereafter, I expect the parties to apply the factors and the formula set out above in determining their income and thereafter their respective contributions on a pro-rated basis to the after-tax expense.
[45] The childcare expense which is approved pursuant to section 7 of the Guidelines must relate only to those costs for childcare that are incurred while Ms. Bonatsos is at work.
D. The Motion for Contempt
[46] On January 18, 2011 Ms. Bonatsos sought an order finding Mr. Bennett in contempt for failing to meet the time frame ordered by Mr. Justice Henderson on June 30, 2011 for the production of listed documents. Mr. Bennett was to produce the documentation falling within 17 categories within 30 days of that order.
[47] In her Motion, Ms. Bonatsos submits that Mr. Bennett failed to produce (a) a complete copy of his benefit booklet from work; (b) a copy of any and all life insurance policies available to him through his employment or that he owned; and (c) proof of the amount claimed by him for depreciation as a deduction from his income. Ms. Bonatsos further submitted that Mr. Bennett failed to comply with Rule 13 with respect to the disclosure of financial information.
[48] The evidence is clear that Ms. Bonatsos had to make numerous requests for the production of the information sought. That said, the following factors are relevant to the outcome of the Motion in this case; (a) Mr. Bennett resides in the United States; (b) the documents sought were in relation to issues that are collateral to the main issues of custody, access and child support; and (c) Ms. Bonatsos has been unable to demonstrate any prejudice to her with respect to the main issues by virtue of the delay other than mounting legal costs incurred to continuously seek production.
[49] I agree with counsel for Mr. Bennett that disclosure of the depreciation information was unnecessary and that the information was irrelevant to the court given that he is not entitled to deduct any value pertaining to depreciation from his income under Canadian law.
[50] In addition, given that Ms. Bonatsos was apparently initially opposed to an amendment of the child’s registration of birth to include an identification of Mr. Bennett as the father of the child, it is difficult to empathize with her frustration with the delay in production of proof of benefits available for the child when access to the benefit would require that Mr. Bennett be identified as the child’s father.
[51] I agree with the submissions of counsel that a finding of contempt should be reserved for those serious breaches that justify serious consequences[^8]. I find that taking into account Mr. Bennett’s compliance with respect to production of most if not all of the documentation sought since the order; this is not one of those breaches. In other words, I am not satisfied that Mr. Bennett’s failure to produce all of the documentation within the time frame ordered merits the consequences sought by Ms. Bonatsos. Even if I were wrong in this regard, I am satisfied that Mr. Bennett has purged his contempt and that no further sanction is necessary.
[52] The effort made by Ms. Bonatsos to obtain the disclosure over time is a matter relating to the issue of costs.
Conclusion
[53] For these reasons, the Motion for Contempt is dismissed.
E. The Motion for Security for Costs
[54] Ms. Bonatsos seeks an order requiring Mr. Bennett to pay $15,000 as security for costs on the basis that he lives outside of Canada and has a history of non-payment of support and court orders. Mr. Bennett is opposed to the order.
[55] Rule 24 (13) states that a judge may make an order for security for costs that is just based on one or more of five factors listed in that section.
[56] A main purpose of an order for security for costs is to prevent a party from blithely pursuing another person through the courts without regard to the merits of the case or the costs likely to be incurred[^9].
[57] In this case, Mr. Bennett’s claims are not without merit. I further note that there is no evidence that he is impecunious and that he does not have an unpaid costs order as of this date. Further, I find that the best interests of the child require that her financial support from Mr. Bennett be a priority for both parties.
Conclusion
[58] For these reasons, the request for security for costs is dismissed.
F. Costs
[59] Over the course of this proceeding, both of the parties have been ordered to pay costs to the other by the Court[^10]. Those costs have been paid as of this date. Further, Mr. Bennett has paid the transaction fee he was ordered to pay.
[60] The real concern with respect to this issue has been Mr. Bennett’s conduct in delaying production and Ms. Bonatsos conduct in delaying disclosure with respect to her income. In my view, neither of these parties comes before the court with clean hands in this regard.
[61] Endorsements in the Continuing Record indicate that until February 15, 2011 the adjournments in the matter were on consent of both parties. On February 15, 2011 the court conducted a Case Conference and a consent order was obtained.
[62] It is also clear, however, that Ms. Bonatsos has had to pursue Mr. Bennett on multiple occasions and the conclusion of this proceeding has been delayed due to the necessity of adjournments.
[63] On the basis of all of the evidence before me, I am satisfied that costs ought to be awarded to Ms. Bonatsos but neither on the basis nor to the scale claimed by Ms. Bonatsos. On the other hand, the motions for contempt and security for costs brought by Ms. Bonatsos have been dismissed and, in the ordinary course, Mr. Bennett would be entitled to costs.
[64] I have reviewed the file in its entirety including all of the motions, the materials in support thereof, the endorsements and the orders. I have also considered the submissions of counsel to the court both in writing and orally. It is my opinion that taking into account the conduct and positions of that parties from time to time, the success achieved to date, the overwhelming priority of child support and section 7 expenses in this case, neither party ought to be awarded any costs at this stage of the proceedings.
Conclusion
[65] No costs are payable by either party to the other as of this date.
Order
[66] An order shall issue forthwith in accordance with this Ruling.
[67] In addition, Mr. Bennett will (a) maintain the child Laura as a beneficiary of all medical, dental and health insurance or benefits available to him through his employment at no cost and Ms. Bonatsos will forthwith sign all documents necessary to implement this order; and (b) obtain and maintain a life insurance policy for so long as he is obliged to pay support in the amount of $100,000 and will name Christine Bonatsos as the irrevocable beneficiary of the policy in trust for the child. Mr. Bennett will provide proof on May 1, 2014 and on May 1of each year thereafter that the life insurance is in place and in good standing and that the medical, dental and health benefits are in place and in good standing if these latter benefits are available to him through his employment at no cost.
[68] The parties will arrange a Trial Management Conference date for May 2014 before me. The matter will be set down for trial thereafter if the parties are unable to settle all outstanding issues.
“Justice L. Templeton”
Justice Lynda Templeton
Date: February 19, 2014
COURT FILE NO.: F1228/10
DATE: 20140219
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Roger Morris Bennett
Applicant
- and -
Christine Lynn Bonatsos
Respondent
REASONS FOR JUDGMENT
TEMPLETON J.
Released: February 19, 2014
[^1]: Section 20(2) of the Guidelines provides that where a parent is (a) a non-resident of Canada; and (b) resides in a country that has effective rates of income tax that are significantly higher than those applicable in the province in which the other parent resides, the non-resident parent’s annual income is the amount which the court determines to be appropriate taking the higher rates into consideration. There is no evidence that the tax rate applied to Mr. Bennett’s income is significantly higher than that applied to income in Ontario.
[^2]: The expert report filed by Mr. Bennett has indicated that the amount in Box 3 and Box 5 is the amount to be used for support calculation purposes.
[^3]: D.B.S. v. S.R.G. et al. 2006 SCC 37, [2006] S.C.J. 37
[^5]: calculated using the highest rate for the year and the lowest rate for the year
[^6]: Section 7(4)
[^7]: I am not prepared to exclude the income generated by the redemption of an RRSP in this year. A reduction of capital is relevant to the issue of spousal support but in this case, where there is no information as to the total amount of the RRSP in question, the purpose for which it was redeemed or the source of the funds in the RRSP, it would be unfair to ignore the income generated from the redemption. Ms. Bonatsos had no other source of income to support the child independent of Mr. Bennett’s support. It is reasonable to infer that some of these funds, if not all, would have been used for her own support in addition to the child’s. Even I were to allow the RRSP to be excluded from Ms. Bonatsos’ total income, the issue of whether income ought to be imputed to her in all of the circumstances would then have to be addressed. For these reasons, the request of counsel for Ms. Bonatsos that the RRSP redemption be excluded from her client’s income in 2011 is denied.
[^8]: Fisher v. Fisher 2003 2119 (ON SC), [2003] O.J. No. 976
[^9]: McGraw v. Samra 2004 ONCJ 164, [2004] O.J. No. 3610
[^10]: See orders of June 29, 2011 and October 21, 2011 respectively