ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-12-1131-00
DATE: 20140326
B E T W E E N:
DAVE ANTHONY COWELL
Dave Cowell, self-represented
Applicant
- and -
MICHELLE ALISON HASTICK COWELL
G.W. Ridler, for the Respondent
Respondent
HEARD: February 10, 2014
ENDORSEMENT
André J.
[1] The applicant father, who is unrepresented, has brought a motion seeking an order that the respondent mother pay spousal support and his costs in bringing this motion. The respondent mother has brought a cross-motion for an order dismissing the applicant’s motion, an order for Guidelines child support, both table and s. 7 in accordance with the applicant’s 2012 income. The respondent also seeks an order imputing income to the applicant on the ground that he operates an import/export business in which he earns an additional $20,000 which he has not declared.
[2] I must therefore address the following questions:
(1) Should the respondent mother be required to pay the applicant spousal support?
(2) Is the applicant required to pay the respondent s. 7 expenses for the two children of the marriage?
(3) Should the court impute an income to the applicant?
FACTS
[3] The parties met in 1992 and began living together either in 1993 or 1995. They got married on September 3, 2001, separated on September 9, 2009 and divorced on October 29, 2010.
[4] The parties have two children, Sydney, who was born on September 10, 2002 and Dylan, who was born on June 25, 2006. Both children reside with the respondent.
[5] During the early part of the marriage Mr. Cowell worked with the Bell Company. Mrs. Cowell initially worked in the retail industry and later in the insurance and banking industries. The parties purchased a home in 1997. Mrs. Cowell continued her education and obtained her Canadian Securities Licence in 1998. She then gained a senior position at the CIBC. A gifted athlete, Mrs. Cowell, while being sponsored by a number of financial institutions, travelled extensively to a training facility in Louisana. Mrs. Cowell contributed to the costs of maintaining their home and the couple’s living expenses but was unsure how much she contributed to these expenses.
[6] There is a dispute about Mr. Cowell’s contribution to Mrs. Cowell’s education. The former claims that he contributed financially to his wife’s education and also transported her daily to school. Mrs. Cowell disputes this and maintains that she financed her own education. Mr. Cowell also claimed that he took care of the couples’ children while his wife worked long hours.
[7] The two children of the marriage have lived with Mrs. Cowell since the separation. They are both enrolled in a private Christian school in Brampton. Mrs. Cowell has borne all the expenses associated with their education and extra-curricular activities.
[8] On September 29, 2011, the parties signed Minutes of Settlement in which they agreed to:
(1) A temporary access schedule and primary residence of the children of the marriage
(2) Grant Mrs. Cowell exclusive possession of the matrimonial home
(3) A buyout of the matrimonial home by Mrs. Cowell in the amount of $95,560.00.
JUDICIAL HISTORY
[9] On September 11, 2012 the parties signed a consent order granting the applicant father access to the children on a mutually agreeable schedule.
[10] On April 26, 2013, Snowie J. ordered Mr. Cowell to pay temporary monthly child support of $811, commencing May 1, 2013, based on Mr. Cowell’s 2011 income of $54,650. Her Honour did not make any order regarding custody of the children of the marriage.
ANALYSIS
ISSUE NO. 1: Should Mrs. Cowell be required to pay Mr. Cowell spousal support?
[11] An answer to this question involves a consideration of the factors enumerated in s.33 of the Family Law Act and s.15.2(4) of the Divorce Act R.S.C. 1985, c.2. Furthermore, s.15.2(6) of the Divorce Act sets out the objectives of spousal support.
[12] The two Divorce Act sections indicate that:
The factors and objectives the Court must consider in making an order of spousal support are outlined under subsections 15.2(4) and (6) of the Divorce Act:
15.2 (4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
All factors under s. 15.2(4) must be carefully considered by the Court in light of the objectives of spousal support listed in s. 15.2(6). The objectives must be balanced in the context of the facts of the case. The Court must exercise its discretion in order to relieve the adverse consequences and economic disadvantages that results from marriage on its breakdown. No single objective, including economic self sufficiency, is paramount. Kovac v. Kovac 2013 ONSC 4593 (S.C.J.) at para 24.
[13] The exercise of judicial discretion in ordering support mandates an examination of the objectives enumerated in s. 15.2(6) to reverse or ameliorate any adverse economic consequences of a marriage or its breakdown. See Moge v. Moge [1992] 3 S.C.R. 813 at para. 79.
[14] There are three conceptual bases for entitlement to spousal support; compensatory (or equitable distribution between the parties based on the economic consequences of the marriage); contractual (or express or implied agreement between the parties); and non-compensatory (as a result of the needs of a spouse, even if that need does not arise as a result of the roles or sacrifices made during the marriage). Bracklow v. Bracklow, [1999] 1 S.C.R. 420.
[15] On an interim spousal support motion, I am not required to carry out a detailed inquiry into all aspects and details of each party’s past and on present circumstances. Driscoll v. Driscoll, 2009 66373 (ONSC).
[16] In my view a careful review of the affidavit evidence filed on Mr. Cowell’s motion and Mrs. Cowell’s cross-motion justifies the making of an order for spousal support on a compensatory and non-compensatory basis.
[17] There is no doubt that Mrs. Cowell worked very hard to qualify as a Certified Financial Planner. She clearly sacrificed a great deal and showed a great deal of grit and fortitude to achieve her professional goals. The fact that in 2012, she earned an income approximately three times that of Mr. Cowell is a testament to the success that she has achieved, largely because of her discipline and determination.
[18] However, there is no doubt that Mr. Cowell assisted Mrs. Cowell while she pursued her educational and professional goals. He provided some financial support while she attended York University. He took care of the couple’s two children while she worked long hours. He worked full time and covered most of the household expenses while Mrs. Cowell pursued her Olympic goals by travelling to the training facilities in Louisiana. Mrs. Cowell may not be responsible for Mr. Cowell’s failure to pursue any educational goals he may have had but that does not alter the fact that he played a part in his wife’s career accomplishments. In so doing, Mr. Cowell is entitled to compensatory support. See Linton v. Linton (1988), 64 O.R. (2d) 18; Chaloux v. Baillu, 2010 ONSC 1397; Kovac v. Kovac, supra at para. 42.
[19] An assessment of the “condition, means, needs and other circumstances” of Mr. Cowell, also invites an inquiry which transcends any compensation he may be entitled to, on account of the marriage and for its breakdown, into his actual situation at the time of this application.
[20] His line 150 income in the past four years are as follows:
2012 $62,708.69 (T4)
2011 $54,652.69
2010 $54,927.56
2009 $59,056.76
[21] That of Mrs. Cowell are:
2012 $213,000.05 (T4)
2011 $190,000
2010 $173,267.72
2009 $150,150
[22] Mr. Cowell does not have a pension from his employer, neither does he possess any R.R.S.Ps. He used $50,000 of the money he received from Mrs. Cowell’s purchase of his interest in the family home to purchase another home while the rest went to pay his lawyer. He nets $3,000 monthly of which $1,400 goes towards his mortgage while $891 goes towards child support payments. The remaining $709 is used to purchase food, pay utilities, car insurance and other incidental expenses.
[23] In my view, Mr. Cowell has demonstrated that his current situation and needs also justify a spousal support order in his favour.
QUANTUM OF SUPPORT
[24] The respondent has relied on the Spousal Support Advisory Guidelines (SSAG) in suggesting a range of support based on the income of the parties and the length of cohabitation. Based on Mr. Cowell’s income of $62,709, the SSAG indicate that Mrs. Cowell should pay spousal support in the amount of $552 per month at the low end of the range, $644 monthly in the middle range, and $736 at the high end of the range, for a duration of 7 to 14 years from the date of separation, subject to variation and possibly review.
[25] The SSAG have been held to be a useful starting point to determine quantum and duration of spousal support, the avoidance of which could well constitute reversible error. Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241, (Ont. C.A.) at para. 103.
[26] In my view, an appropriate amount of spousal support in the circumstances of this case is an amount in the middle range, or $644 monthly.
ISSUE NO. 2: Is Mr. Cowell required to pay Mrs. Cowell s. 7 expenses for the two children of the marriage?
[27] Mr. Cowell does not dispute that he should contribute to these payments. Rather, he maintains that he simply cannot afford to pay to have his children in a private school and bear the cost of having them involved in a plethora of extra-curricular activities.
[28] The respondent relies on the DivorceMate calculations for the proposition that based on their respective incomes, she is obliged to pay 73 percent of the s. 7 expenses of the children of the marriage compared to 26.7 percent by the applicant. Furthermore, that the Guidelines indicate that based on Mrs. Cowell’s annual income of $190,000 Mrs. Cowell should pay a minimum of $552 monthly spousal support, a midpoint amount of $664 monthly or a maximum amount of $736 monthly. By contrast, the s. 7 expenses Mr. Cowell should pay ranges from a low $758 monthly to a mid-range of $773 and a high of $785 monthly. To that extent, the monthly s. 7 expenses Mr. Cowell is obliged to pay exceeds the amount of spousal support that Mrs. Cowell must pay to him. Accordingly, the court should not make any order obliging Mrs. Cowell to pay Mr. Cowell spousal support.
[29] Contrary to the respondent’s view that a determination of s. 7 special and extraordinary expenses which the applicant must pay is based on a mathematical formula derived from DivorceMate, I must apply the criteria set out in s. 7 of the Guidelines for such a determination.
[30] The section reads:
- (1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:
(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;
(b) that portion of the medical and dental insurance premiums attributable to the child;
(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;
(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;
(e) expenses for post-secondary education; and
(f) extraordinary expenses for extracurricular activities.
[31] The Guidelines define “extraordinary” as follows:
(1.1) For the purposes of paragraphs (1)(d) and (f), the term “extraordinary expenses” means
(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or
(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account
(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,
(ii) the nature and number of the educational programs and extracurricular activities,
(iii) any special needs and talents of the child or children,
(iv) the overall cost of the programs and activities, and
(v) any other similar factor that the court considers relevant.
[32] In Titova v. Titova 2012 ONCA 864, the Ontario Court of Appeal, at para.26, noted that in awarding s. 7 special and extraordinary expenses, a court should determine the following:
(1) Each party’s income
(2) Whether the claimed expenses fall within one of the enumerated categories of s. 7
(3) Whether the claimed expenses are necessary, “in relation to the child’s best interests and are reasonable, in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation?
(4) If the expenses fall under s. 7(1)(d) or (f), whether the expenses are “extraordinary”
(5) what amount, if any, the child should reasonably contribute to the payment of these expenses. The court should then apply any tax deductions or credits
[33] An expense for an extracurricular activity is extraordinary only where it is disproportionate to the usual costs associated with that particular activity. The income of the parties is irrelevant in determining whether an expense is extraordinary. Andres v. Andres [1998] M.J. No. 196, at para. 34.
[34] The special and extraordinary expenses claimed by the respondent are as follows:
(1) $19,355 to cover the children’s education at the Brampton Christian Private School
(2) $2,500 for Dylan’s extracurricular expenses
(3) $6,500 for Sydney’s extracurricular expenses
(4) $2,500 for Dylan’s and Tristan’s summer camp expenses.
[35] Mrs. Cowell deposed in her affidavit dated June 21, 2013, that Sydney is involved in competitive dance, track and field, Taekwondo, soccer, swimming, piano and “attends camp regularly”. She also indicated that Dylan is involved in Taekwondo, competitive soccer, swimming and is a great basketball player. Mrs. Cowell also deposed that Sydney is a very strong track and field competitor and at age 11, broke a Canadian triple jump record.
[36] The applicant’s annual income in 2011 was $54,652.69 while that of the respondent was $190,000. The respondent only decided to send Tristan and Sydney to the Brampton Christian School following separation. Furthermore, the expenses for extracurricular activities and that for summer camp were only incurred following the parties’ separation and divorce.
[37] The expenses claimed by the respondent falls within s. 7(1)(d) and (f) of the Guidelines. The expenses claimed are extraordinary in that they appear to be disproportionate to the usual costs associated with the activities in question. For example, public education is generally free, subject only to a few expenses. One would not typically expect the cost of piano lessons and summer camp to involve the amount claimed by the respondent.
[38] It appears that Mrs. Cowell has involved her daughter in a smorgasbord of activities rather than have her focus on a few where she could really excel. This enrolment comes with a heavy cost which, in my view, may not be considered reasonable “in relation to the means of the spouses and the family’s spending pattern prior to separation”.
[39] The parties did not incur these expenses while they lived together. Second, the applicant’s net monthly income is approximately $3,000 from which he must pay $1,400 towards his mortgage and approximately $900 in child support payments. If he is required to pay an additional $733 monthly in s. 7 expenses, the applicant would have no money for food, utilities, toiletries, property taxes, gas or for any other reasonable expense. In my view, the respondent’s contention that the applicant is required to contribute a monthly amount of $733 towards s. 7 expenses is both unreasonable and untenable.
[40] I am mindful that the decision to award s. 7 expenses regarding entitlement and amount is a discretionary one. MacNeil v. MacNeil 2013 ONSC 7012, at para. 22.
[41] In my view, while the applicant must contribute to any s. 7 expenses incurred by the respondent, requiring him to pay his proportionate share of those expenses would be patently unreasonable given the applicant’s means. Accordingly, Mr. Cowell will be required to contribute $300 monthly to the s. 7 expenses incurred by the respondent.
Issue No. 3: Should the Court impute an income to the Applicant in excess of his claimed income?
[42] In my view, I should not. The onus is on the party requesting the court to impute income to establish the evidentiary basis for such a request. Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689. Counsel for the Respondent has conceded that there is a paucity of evidence to support his contention that Mr. Cowell has an additional undeclared source of income from an import/export business.
COSTS
[43] The applicant is seeking costs in the amount of $200,000 which I have advised him, is totally unrealistic.
[44] The respondent is seeking costs in the amount of $7,500. However, the respondent can only claim limited success in her cross-motion. I did not dismiss the applicant’s motion as she requested, neither did I find that the spousal support which the respondent must pay is fully offset by the s. 7 expenses which the applicant must pay to her.
[45] Mrs. Cowell maintained that the spousal support she may be obligated to pay to Mr. Cowell is more than offset by the s. 7 expenses for Mr. Cowell must pay in this case. I found that even if spousal support payments are partly offset by Mr. Cowell’s share of the s. 7 expenses, Mrs. Cowell is nevertheless obliged to pay spousal support to Mr. Cowell.
CONCLUSION AND ORDER
[46] Based on the above, I order that:
(1) The respondent mother shall have interim custody of Sydney Cowell, born September 10, 2002 and Dylan Cowell, born June 25, 2006.
(2) Commencing March 1, 2014, the applicant father shall pay interim child support to the respondent mother in the amount of $931 per month, and on the first day of each month thereafter.
(3) Commencing March 1, 2014, the respondent mother shall pay interim spousal support to the applicant in the amount of $644 per month less $300 a month which the applicant must contribute to the respondent for s. 7 expenses related to the children of the marriage, for a total of $344 monthly. The issue of retroactive spousal support is reserved to the trial justice.
(4) This order is to be enforced by the Family Responsibility Office.
(5) Each party shall bear his or her costs.
(6) Approval, by the Applicant, as to the form and content of this order, is dispensed with.
André J.
Released: March 26, 2014
COURT FILE NO.: FS-12-1131-00
DATE: 20140326
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DAVE ANTHONY COWELL
Applicant
- and –
MICHELLE ALISON HASTICK COWELL
Respondent
ENDORSEMENT
André J.
Released: March 26, 2014