COURT FILE NO.: FS-13-391541
DATE: 20141007
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANITA ROSSI
Applicant
– and –
CRAYNE SPANIER
Respondent
Ravital Khardas, for the Applicant
Crayne Spanier, Respondent, appearing in person
HEARD: July 14, 15, 16, 17, 18, 2014
harvison young j.:
[1] Anita Rossi and Crayne Spanier, now in their early 50s, separated in 2011 after 23 years of marriage. They are both musicians. During their marriage, their principal source of income came from The Anita Rossi Band, which became quite successful, performing primarily at weddings and corporate events. Ms. Rossi was the lead singer, and Mr. Spanier was the keyboard player. He also managed the band. Since their separation, there have been fewer and fewer gigs, which has affected the incomes of both parties. The central dispute between the parties is determining Mr. Spanier’s income for the purpose of support, and determining whether or what income should be attributed to Ms. Rossi.
[2] Ms. Rossi has multiple sclerosis (“MS”) which was first diagnosed in 1999 (although in retrospect, symptoms had been present since about 1987). While it did not prevent her from performing and enjoying an active and successful musical career for many years after her initial diagnosis, there is no dispute that it has become significantly worse recently.
[3] The only issue before the court in the course of this five day trial was the quantum of spousal support payable by Mr. Spanier to Ms. Rossi. In her application, reiterated in opening submissions, Ms. Rossi sought spousal support in the amount of approximately $1800 per month, based on a guideline income amount of $59,254. In her closing submissions, Ms. Khardas advised that she had revised the amount sought to $1,403, based on an imputed income of $43,544 for support purposes.
[4] Mr. Spanier’s position was that the appropriate income upon which to base the spousal support payable should be his 2013 net business income of $27,693, yielding spousal support in the amount of $700 per month. He submitted that the fairest way of fixing his income for support purposes is to average his net income from the past three years. The difference between the two positions, as will be discussed below, resulted from the changing or transitional nature of Mr. Spanier’s income since the separation, as well as some dispute concerning expenses.
[5] The parties agreed that the affidavits filed would form their respective evidence in chief. Both parties supplemented their affidavit evidence with viva voce evidence. At the outset, I note that while Mr. Spanier was unrepresented, he had obtained some legal assistance with some document preparation. He had clearly done an amount of work to prepare for this trial, demonstrating a remarkable mastery of the rules of procedure and evidence for someone with no legal training. He also demonstrated a detailed and thorough knowledge of the evidence and documentation in the case.
[6] There are a number of related factors in this case that complicate the task of determining the appropriate level of spousal support. I will discuss these in further detail below, but it will be useful to set out those issues at the outset.
[7] The parties negotiated and executed a separation agreement dated February 23, 2012 (“the Agreement”) that resolved all issues between them, subject to a material change provision. Mr. Spanier concedes that the deterioration in Ms. Rossi’s health since that date constitutes material change as provided for in the Agreement. Ms. Rossi’s application to vary is dated November 19, 2013.
[8] Neither child support nor spousal support was payable pursuant to the Agreement. There are two children of the marriage. Aja, now 23, has been away at university in Montreal since 2010. Jaden, now 20, lived with his father until last fall (2013) when he began college. Aja will be returning to Toronto to live at home in the fall, as a result of academic and personal difficulties. She will be living at home with Mr. Spanier, and at the time of trial it was unclear whether she would be working or when or if she is returning to university.
[9] Mr. Spanier’s evidence at trial was that he has been supporting both children (to the extent that their expenses exceed the funds from their RESP and OSAP proceeds) since the separation and that he therefore has less income available for support. Ms. Rossi’s argument on this point is that both children’s university and living expenses are entirely covered by the RESPs that the couple had amassed during the marriage, in combination with their OSAP awards and savings from summer jobs.
[10] In the course of 2012, Ms. Rossi received a total of approximately $370,000 in capital sums. Approximately $222,000 of these monies were paid by Mr. Spanier to buy out Ms. Rossi’s interest in the matrimonial home. This amount was net of a small equalization payment owing from Ms. Rossi to Mr. Spanier. Mr. Spanier paid roughly $74,000 of purchase price in a series of instalments. The remaining balance of the purchase price was made up of $130,000 of RRSPs which were “rolled over” to Ms. Rossi’s account.
[11] Shortly after this transfer, Ms. Rossi and Mr. Spanier each received additional amounts of approximately $148,000[^1] which were proceeds from an investment (“the Olemanco investment”).
[12] In addition to these amounts, Ms. Rossi received some amounts, approximately $32,375, before the Agreement was executed. While these amounts were not clearly characterized in the Agreement, I have not included them as capital amounts received by her as there is no real issue that she required these funds to live on.
[13] In sum, Ms. Rossi received approximately $371,000 in capital amounts in 2012. At the time she filed her application to vary dated November 19, 2013, her financial statement showed assets of about $284,773.03 including RRSPs. Her financial statement filed May 29, 2014 in preparation for trial showed total RRSPs remaining of $199,000 and total value of all property in the amount of $205,924.51.
[14] Mr. Spanier accepts his obligation to pay spousal support, but objects to the amount claimed by Ms. Rossi, submitting that an amount in the range of $700 per month would be appropriate for three reasons.
[15] First, he submits that his income does not support a higher amount, particularly in light of the fact that he continues to support the children. Second, he submits that Ms. Rossi’s present need arises to some extent out of her dissipation of a large proportion of the capital amounts she has received and that this should be taken into account. His evidence was that, sometime around 2007, Ms. Rossi developed a gambling addiction and that this was a major factor contributing to the breakup of the marriage. Ms. Rossi admits that she has in the past received treatment in relation to gambling but denied that this had anything to do with the breakup of the marriage, and denied that she continues to gamble or that this has had any effect on the reduction of her capital assets.
[16] Finally, Mr. Spanier also submitted that Ms. Rossi’s financial statements do not give any indication of the interest income from her investments, and submits that even if she is unable to work, some income should be attributed to her with respect to income which could reasonably be earned on the capital sums she has received.
[17] Ms. Rossi states that to the extent that she has spent some of the capital amounts received, it has been appropriate and largely to cover her living expenses and the cost of setting up a new apartment.
[18] The central issues, then, are what amounts of income are attributable to Ms. Rossi and Mr. Spanier respectively.
Ms. Rossi’s Need and Income
[19] There is no dispute that Ms. Rossi has significant need. There is also no dispute that her need, which Mr. Spanier accepts to be in the range of $5000 per month, is much greater than any ability to pay on the part of Mr. Spanier, and that she will continue to be required to live on her capital, whatever amount he is ordered to pay.
[20] Mr. Spanier, however, does take issue with aspects of her expenses and spending habits, which he submits exacerbate the problem and the speed with which her capital is being dissipated. The material filed by Ms. Rossi permits an examination of the capital amounts she received in the course of the implementation of the Agreement in light of the net value she reports in her affidavit of November 19, 2013 ($284,773.03) and then when compared with her stated net value as sworn in her May 29, 2014 affidavit ($205,924.51).
[21] Given that there is no dispute that Ms. Rossi’s legitimate need outstrips whatever Mr. Spanier’s support obligation at its highest might be, there is a sense in which any recklessness or dissipation of capital on her part is irrelevant to the issues in this trial. However, Mr. Spanier submits that some interest income should be attributed to her: Schifman v. Schifman, 2014 ONSC 3374, [2014] O.J. No. 2690. His key point is that while he acknowledges her need and accepts his obligations, he should not be held accountable for her reckless dissipation of her capital. He notes that she does not report any income from her capital at all in her financial statements.
[22] Mr. Spanier also does not dispute the fact that Ms. Rossi would like to continue to work. The parties agreed to fix the amount of $6,965 as the amount of Ms. Rossi’s income, but it was clear in the course of the trial that while Mr. Spanier was content to use this amount with respect to Ms. Rossi’s income from performance related matters, his view was that more should be attributed to her with respect to investment income.
[23] Mr. Spanier submits that, in addition to her gambling problem, Ms. Rossi has a history of making poor or reckless financial decisions, quite apart from the gambling. He submits that she has overblown her legitimate expenses to mask the fact that she is continuing to gamble and/or dissipate funds at a rapid rate.
[24] As indicated above, Ms. Rossi received about $370,000 capital amounts in 2012 as a result of the Agreement and the Olemanco investment return.
[25] Thus, Ms. Rossi has spent approximately $170,000 of her capital within two years. During some of this time, particularly after the transfer of the RRSP in the amount of about $130,000 to Ms. Rossi, it appears that her RRSPs had appreciated significantly. However, there was no documentation on this other than the total amounts she reported in her financial statements. Mr. Spanier submits that if these statements were indeed accurate and the RRSPs had appreciated significantly, then the real amounts spent would be greater.
[26] On behalf of Ms. Rossi, Ms. Khardas submitted that Ms. Rossi’s spending was reasonable on the basis of her expenses of $5290 per month (to which Mr. Spanier did agree, although he also stated that they exceeded the family’s monthly expenses when they were together) as well as a number of one-time expenses, including legal bills. These expenses, according to Ms. Rossi, included setting up her apartment when she moved out ($25,000); $10,000 down payment on the Genesis as well as $315 monthly payments; $5,000 for the second-hand Elantra; $20,000 for the loan to Visual FX; $20,000 for the cost of getting out of the condo deal.
[27] Ms. Khardas also submitted that even if Ms. Rossi has had poor spending habits, it is irrelevant for the purposes of this litigation because it is clear her need outstrips any award which will be made for the payment of spousal support and she seeks only an award based on a fair assessment of Mr. Spanier’s income as well as the appropriate attribution of income to her.
The admissibility of the Facebook receipts
[28] An issue arose at the beginning of the trial relating to the admissibility of certain Facebook receipts which I will address at this point.
[29] Mr. Spanier cross-examined Ms. Rossi on a number of issues related to her spending and the question of whether she was gambling.
[30] A number of entries on Ms. Rossi’s Visa statement denoted “Facebook” with invoice numbers beside them. On the morning of the commencement of trial, Mr. Spanier advised that he had entered these invoice codes on Facebook, along with the last four digits of Ms. Rossi’s credit card number (which appears at the top of all the disclosed statements). Facebook then returned details of the purchase which, in this case, included the name of the game for which the purchases were incurred, which was “Slotboom.” Ms. Khardas objected to the admission of this evidence on a few grounds. First, she objected that this was too late, being the beginning of trial. On this point, Mr. Spanier responded that Ms. Rossi had not produced her 2013 bank statements or Visa bills until June 30, 2014, which was only two weeks earlier.
[31] I advised Ms. Khardas that I would grant a brief adjournment so that she could review these documents and make further submissions. A half hour was sufficient. In closing submissions, she argued that these invoices should not be admitted because they amounted to the unauthorized use of Ms. Rossi’s private credit card information and thus are unwarranted violations of her privacy interests. Neither party referred me to any law on this issue.
[32] Having considered the issue, I conclude that these invoices are properly admissible. There is no question that they are relevant in these circumstances where Mr. Spanier alleges that Ms. Rossi has been dissipating her assets and that a gambling addiction is at least part of the problem. Moreover, there is no surprise to the applicant that this is an issue; it has been a live issue from the time the application was commenced.
[33] Second, Ms. Rossi would clearly have been obliged to produce these invoices had she been asked to produce them. I am satisfied that, had she produced her bank and Visa statements earlier, Mr. Spanier would have asked for these earlier. By the time she did produce the statements, the parties were enmeshed in preparations for trial and attempts to settle the matter.
[34] Third, there is no suggestion that Mr. Spanier did anything with the credit card and Facebook data beyond what related directly to this litigation.
[35] There is, in any event, no general power at common law to exclude evidence on the grounds that it was wrongfully obtained: see Alan W. Bryant, Sidney N. Lederman & Michelle K. Fuerst, Sopinka’s The Law of Evidence in Canada, 4th ed. (Markham, Ont.: LexisNexis, 2014), at p. 563, section 9.3:
The rationale for the general inclusionary rule is that the trier of fact should have the benefit of all relevant evidence, irrespective of how it was obtained. If illegal or improper acts committed in the acquisition of evidence do not affect its probative value, they should not distract the court from its primary task of fact finding. Furthermore, the law of evidence should not be used as a means of disciplining the police or others. The person aggrieved can resort, at least theoretically, to other proceedings, criminal or civil, to obtain recourse against the wrongdoer
[36] I note that it has been well established that the Charter has no application to a dispute between private parties in which no agency of government is a party: RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, at paras. 26 to 41. While there are arguments that Charter values should be applied to the common law, this not such a case, as I have indicated, because Mr. Spanier used only information that had been properly disclosed to him by Ms. Rossi in order to obtain the invoice details. Moreover, these were details which she would have been obliged to produce in any event had he had the bank and Visa statements earlier.
[37] Turning now to the Facebook invoices themselves, Mr. Spanier focused on a number of entries. . When he asked her what these were, she stated that they were games that were helpful for memory at an average cost of $5 per day. When he put the Facebook invoices to her that showed a game entitled “Slotboom,” she conceded that it was an online slot machine, but maintained that it was skill based. Later in the cross examination, she maintained that although she had done some online gambling at that time, she had not done so for the past year. This testimony was undermined by a number of the Facebook invoices. For example, Visa charges on April 29-30, 2013 show twelve separate transactions for the slot game between 7.43 pm and 12,28 am for a total of $434.04.
[38] The only bank and Visa statements produced by Ms. Rossi were for the calendar year of 2013. They were not produced in their entirety until June 30, 2014. There was, accordingly, no way to test her assertion that she has not gambled in 2014 with any documents before the court at this trial.
[39] In the course of his cross-examination of Ms. Rossi, Mr. Spanier also asked Ms. Rossi about a number of cash withdrawals which took place within a very short time. She had admitted that she had driven to Niagara Falls from about June 25 to 26, 2013 with Aja and Aja’s friend. She admitted they had gone to the casino but stated that they had just walked through and had not gambled at all. When Mr. Spanier put the corresponding bank statement to her showing that some $950 cash withdrawals had been made over the same period, she initially stated that they would have spent this money on food and lodging, etc. Later in her evidence, however, she testified that she had been tired and decided to stay in the room, giving both her Visa and bank statement to her daughter and suggesting that Aja must have taken the money out. In short, I find that her evidence was inconsistent and self- serving on this issue.
[40] Throughout 2013, the Visa statements show numerous other “Facebook” entries, although none amount to as much money in such a short period as those for the month April, 2013referred to above. The bank statements also show recurring instances of large cash withdrawals within very short periods of time.
[41] I find as a fact that Ms. Rossi has continued to gamble despite her assertion to the contrary.
The attribution of investment income to Ms. Rossi
[42] In considering the question of dissipation of capital, and the reasons for that, Mr. Spanier focused on two periods: between the signing of the Agreement and the commencement of this application in November 2013; and between the commencement of this application and Ms. Rossi’s May 24, 2014 affidavit and statement of her assets as updated.
The period between the signing of the separation agreement (February 2012) and the commencement of this application (November 2013)
[43] Mr. Spanier’s position at trial was that the evidence shows that, in addition to her gambling addiction, Ms. Rossi was financially irresponsible and made a number of decisions that have had serious effects on her financial situation which should not be visited upon him. In particular, he asserts that some investment income should be attributed to her with respect to income that she might have earned had she not continued to recklessly deplete her capital.
[44] The first such decision was her 2012 “loan” to Visual FX, whose principal is her friend Mr. Dennison, in the amount of $20,000. This does not appear to have been documented in any way and her evidence was vague as to the terms of this loan, or when it would be repaid. Shortly thereafter, she purchased a new car, which Mr. Dennison regularly drove, and another cheaper used car which she regularly drove. Ms. Rossi testified that she purchased the car for client meetings, although she did admit that Mr. Dennison drove her around in it. I found her evidence in relation to the car to be inconsistent, vague and somewhat evasive and I do not accept it. Not a great deal turns on this, except for the fact that, very early on after the distribution of funds related to the Agreement and the Owemanco investment, Ms. Rossi was making very questionable financial decisions. It also bears on her credibility and reliability as a witness.
[45] Another illustration was a decision to purchase a co-op condo, apparently without much research, and then discovering that the building did not have an elevator or permit dogs, both of which were deal-breaking issues as far as she was concerned. She then opted out of the deal at a cost to her of about $20,000.
[46] In addition, I find that the expenses claimed by Ms. Rossi were in some respects overblown. She claimed in her financial statement to have incurred $4000 over a year in travel expenses for Aja back and forth between Montreal and Toronto, but acknowledged in the course of her cross examination that Aja did not return home often, that she generally came by bus, and that the travel costs generally amounted to about $400 per year. In addition, she claimed that her medical expenses amount to about $700 per month, but in cross examination it became evident that there was or had been some insurance coverage that was not adequately accounted for. While there was some suggestion that coverage may have lapsed, or deductibles were due, there was no clear explanation of what coverage there was, reimbursements received, or deductibles paid.
[47] In short, I do not find Ms. Rossi to have been a reliable historian in accounting for her expenses. I have great sympathy for her medical challenges and the effects, including cognitive, that they have had on her, but my overall impression is that her expenses have been inflated in retrospect in an attempt to explain where the money has gone.
[48] As I have indicated, there is a sense in which this does not matter for spousal support purposes because Ms. Rossi has a clearly demonstrated need for support. It is relevant, however, for the purposes of considering whether any investment income should be attributed to her in light of income that she could have received had she managed her resources more prudently.
November 2013 until May 24, 2014
[49] Mr. Spanier states that even accepting Ms. Rossi’s monthly expenses at $5,290 as she claims, her spending as set out in her affidavit were much more than that. Between late November 2013 and May 29, 2014, a period of seven months, she spent a total of $148,129.37. This was comprised of $89,611.11 from her RRSP, $2,147 from her TFSA, $27,000 from a chequing account and a further $29,371.26 from her spousal RRSP.
[50] She has made some imprudent financial decisions. Of some concern is the absence of any evidence that she has sought or obtained any professional arms-length financial advice and/or management. Quite apart from the concerns about Ms. Rossi’s gambling, it is very clear that she has been depleting her assets at an obviously unsustainable rate.
[51] In her closing submissions, Ms. Khardas submitted that the spending and dissipation issue is not relevant as Ms. Rossi is not asking for spousal support in accordance with the parties’ respective incomes. She also submits that Ms. Rossi should not be required to encroach on her capital more than is necessary. That, of course, is the nub of Mr. Spanier’s argument, which is that she has been dissipating capital more that she needs to and he is concerned that this not result in unfair levels of support.
[52] I conclude that some income must be attributed to Ms. Rossi as investment income. Mr. Spanier submitted that given her income situation, she could collapse some of her RRSPs without generating tax consequences in a manner that would then generate some income. I note that Ms. Rossi did not report any investment income, and led no evidence on this issue. Her financial documentation does not provide any information as to the current performance of her RRSPs. Apart from submissions that taxes would have been withheld from the RRSPs she has cashed in, there was no evidence as to current tax liabilities.
[53] $200,000 conservatively invested could be expected to generate, at present, approximately 3% per annum or $6,000.
[54] Of course, given the fact that Ms. Rossi will be likely be required to encroach on her capital, and would have been required to do so even if she had been a prudent money manager, the income will decrease with the capital over time. There was no actuarial evidence before the court on this point, so the amounts to be attributed for imputed investment income must be approximate. However, I do think that it is appropriate that investment income be attributed to her in the amount of $2000 per annum at this point to reflect both the fact that some returns should be attributed but that the amount will decrease. This also underlines her responsibility to manage her financial affairs.
[55] In my view, it is fair and appropriate to attribute the amount of $2000 per annum to Ms. Rossi in light of the significant amounts of her capital that seem to have been spent and are not explained or documented by her actual reasonable living expenses.
Ms. Rossi’s Health
[56] It is common ground that Ms. Rossi’s health has deteriorated significantly since the separation and since the Agreement was signed in February 2012, and that this deterioration constituted a material change within the meaning of the Agreement.
[57] According to Ms. Rossi’s evidence, supported by letters from her physicians which were admitted as evidence, she suffers both cognitive and physical effects from the MS. The reports states that on a day-to-day basis, Ms. Rossi has difficulty with short-term memory. She is forgetful and requires the use of notes and reminders. She has intermittent vertigo. She also suffers from weakness of her legs and difficulty with balance. She utilizes a cane and is becoming more dependent on it. She has burning pain in her legs. She has “good days and bad days” and her symptoms are exacerbated by stress.
[58] According to her treating neurologist, Dr. Hohol:
because of her depression, cognitive impairment, fatigue, pain, impaired balance, weakness, sensory symptoms, bladder dysfunction that she is not able to work in any capacity and it is highly unlikely this will change in the future.
[59] I accept the evidence that Ms. Rossi has tried to contribute to her own financial support by continuing, as much as possible, to perform. I also accept her evidence, with which Mr. Spanier also agreed, that she would like to perform more, and that she has not turned down any offers to perform. According to Mr. Spanier, she sings beautifully. She clearly loves to sing and perform and this has been a central part of her life. She testified that when she does perform, however, she “is in bed for the next three days.”
[60] Ms. Rossi has recently made efforts to earn some income by setting up a web page and advertising, in essence, providing mentoring and such services to young musicians. To date, however, this has not produced any income.
[61] In summary, the unfortunate reality is that Ms. Rossi’s income from performing on stage will likely continue to decline. Hopefully she will earn some returns from her plans to mentor young musicians, something for which she is clearly enthusiastic. In my view, the amount she proposed as attributed income from performing or related income in the amount of $6,965 is reasonable.
[62] In addition to that, for the reasons I have set out above, I would add the amount of $2000 as imputed investment income for a total of $8,965. This is the amount of income to be attributed to Ms. Rossi for the purposes of the determination of spousal support.
Mr. Spanier’s Income for Support Purposes
[63] Mr. Spanier submits that his income available for spousal support, as reflected in his 2013 income tax return, is derived from a few sources.
[64] The largest component in the last couple of years has come from Viscofan, a company for which Mr. Spanier has done deliveries for many years. He testified that during the years that The Anita Rossi Band was most successful, he worked fewer hours, but that in the past few years he has assumed additional hours when his opportunities for gigs have diminished along with the fortunes of The Anita Rossi Band. He invoiced Viscofan for $26,316 in 2013. In addition to this, he earned income from performing in 2013 totaling $9805.04 for a total gross income of about $36,000. Although for tax purposes he had deducted $24,487.71 from his gross business income as business expenses, the parties agreed that for the purposes of this litigation his business expenses would be fixed at $8,000. He submits that his net business income and the amount available for support, based on his 2013 income, was $26,143.12.
[65] In this respect, the parties’ numbers are very close.
[66] However, Ms. Rossi takes issue both with Mr. Spanier’s available income and with his expenses. With respect to his income, she points out that he has recently begun to rent out the basement of the house at an amount of $750 per month which will augment his income on a go-forward basis. She also points to the fact that in 2014, he obtained a couple of other performance-related contracts, and in particular for event management with “Humour Me” to take place later this year for which he expects to receive $12,000. Accordingly, her position, at least at the beginning of the trial, was that the projected income amounts with respect to rent and “Humour Me” should be added to his 2013 income to produce a significantly higher amount. In her opening statement, she submitted that his annual guidelines income should be set at $59,000 which generated a high DivorceMate calculation amount of $1,853 per month. In her closing, Ms. Khardas submitted that an analysis of Mr. Spanier’s bank statements supports an inference that the income he had available for spousal support was significantly higher than he claimed. I will address both issues in turn.
[67] In addressing his income since separation and the demise of The Anita Rossi Band, Mr. Spanier somewhat euphemistically referred to this period as “transitional.” He expressed the view that income from events such as the “Humour Me” event is not predictable: there is no basis for assuming that any of it will be repeated as they are all “one shot” sorts of events which have come to him largely out of the kindness of friends who want to help. While this caution is warranted to some extent, his income to date has been higher than last year and there is some basis for hoping that that there will be some growth. I do agree with him, however, that the more time he spends on event planning/management sorts of activities, the less time he will have available for deliveries with Viscofan. For this reason, it is not appropriate to simply add the event planning income projected for 2014 to the delivery income he received in 2013.
[68] With respect to the rental income of $750 per month, this is a realistic continuing source of income that should be included on a continuing basis. I would therefore calculate the income he has available for support purposes by considering his 2013 income (Viscofan as well as the 2013 performing income) plus his rental income. After the automatic gross ups are applied pursuant to DivorceMate, this results in an income available for support in the amount of $47,100.
[69] I found Mr. Spanier to be a reliable and truthful witness who demonstrated an impressive mastery of the records and details in this case and who was unshaken in cross-examination. I also found him to be forthright about his income and prospects. On one hand, he appears to be an effective manager with strong interpersonal and organizational skills, and a hard worker. On the other hand, he is now in his early 50s and his formal education does not extend past high school. I do not find any basis to support the applicant’s opening submission that Mr. Spanier is deliberately under-employed. Rather, this is a very sad case where Ms. Rossi’s illness along with the separation and possibly other factors (such as the passage of time) have dramatically affected the “golden goose” in the form of The Anita Rossi Band that provided this family with its livelihood for many years.
[70] Ms. Khardas submitted that Mr. Spanier’s bank accounts showed significantly more money had come into his accounts, and his expenses were much higher, than his stated income could have supported. He agreed that he had incurred expenses in the amount of $79,000 in 2013. He did not agree that there were additional “transfers” into his accounts in the amount of $12,000 that he had not explained.
[71] I do not accept the applicant’s submissions on this point. First, while Mr. Spanier had not incurred additional debt in 2013, he has at time extended his line of credit to the maximum and he has eroded his own capital to cover his expenses, cashing in both tax free savings plans as well as his portion of the Owemanco investment return.
[72] He testified that he pays only the interest on his home equity loan. In short, he too is encroaching on capital. He stated that his priority has been to cover the deficits between the children’s OSAP and RESP funds and their expenses so that they do not graduate with debt. I accept his evidence on this point. He stated that he recognizes that his current situation may not be sustainable, but that he hopes that by renting out the basement apartment he may be able to keep the house. Mr. Spanier has also shown himself to be a very good manager of money. This is evidenced most strongly by the fact that during their marriage, they managed to purchase and almost pay off their home, put aside significant sums for their children’s education as well as RRSPs. Ms. Rossi complained during her evidence that she had no idea what bank accounts she had or what money they had while they were married as he did everything, but the reality is that she ultimately benefited from this, as have the children during their university years. Both children have entrusted the management of their post-secondary expenses to their father. Their RESP funds and their OSAP awards are deposited with him and he pays their expenses and provides them with allowances. This results, as the banking records amply demonstrated, in a significant amount of transferring of funds back and forth between accounts. I do not accept Ms. Khardas’ submission that the children’s expenses have been fully covered by their OSAP, RESPs and their summer/part-time income (which, at least in the case of Aja while in Montreal, has been very limited). Both children have been living away from home to attend university. I am satisfied that Mr. Spanier has been regularly bridging this gap, and his evidence on this point satisfies me that there has indeed been such a gap.
[73] I note that, as Mr. Spanier acknowledges, Ms. Rossi also gives the children some money from time to time, but apparently more in the nature of discretionary money such as birthday presents.
[74] Mr. Spanier was clearly puzzled by Ms. Khardas’ suggestion that he had additional monies in the form of the $12,000 that she refers to as the “transfers.” Having carefully reviewed the evidence and Ms. Khardas’ submissions, I do not accept that there were additional monies as she asserts. Rather, as Mr. Spanier submits, these were monies that were double counted. As he was managing the children’s money and expenses, there were a significant number of transfers from the children’s RESPs as well as their OSAP awards into and out of his accounts.
[75] While Ms. Khardas in the course of the trial took issue with some of Mr. Spanier’s evidence with respect to the children’s expenses, suggesting for example that he might have tried harder to save some expenses (such as rent on apartments during the summer months), her central submission was that given his expenses, his income must be higher because he would otherwise have had more debt. As I have already indicated, I am satisfied with Mr. Spanier’s explanation that he has, in fact, been encroaching on capital.
[76] In summary, I conclude that the fairest and most appropriate manner of setting Mr. Spanier’s income, given all the challenges of this situation and the “transitional” nature of his circumstances, is to rely on his self-employment income earned in 2013, as well as the rental income from the basement apartment. These yield, at this point, the best estimates of his income on a continuing basis and reflect my view that if Mr. Spanier’s entertainment industry income increases, his Viscofan income will decrease.
[77] The amounts of his income for 2013 within these categories was agreed upon in the course of closing submissions. As Ms. Khardas’ DivorceMate calculations indicated, Mr. Rossi’s 2013 income, excluding rent, totaled $30,108. According to DivorceMate, this yielded an income available for support amount of $35,075.
[78] As I have indicated, the amount of rent should be added to that amount, yielding a 2013 income in the amount of $39,108 which yields an income available for support amount of $47,100.
[79] Ms. Rossi’s income for the purpose of calculating support, is to be set at $8,965, as I have set out above.
[80] The applicant’s revised claim, made during her closing submissions, was based on a guidelines income in the amount of $43,544.00, and income attributed to Ms. Rossi in the amount of $6,965.00, yielding amounts of spousal support in the amounts of $1,143.00, $1,1334.00 and $1,403 representing the low, mid and high levels respectively. There are, however, a few problems with this calculation.
[81] First, the calculations are based on the parameters that specify that the children live with Ms. Rossi. This is not the case and, of course, inflates the amount payable by Mr. Spanier as spousal support. If the “summer/child in household” parameter is applied to reflect the reality that the children live with Mr. Spanier at least four months of the year, the amounts yielded on the applicant’s amounts would have been $1,035, $1,208, and $1,380 at the low, mid, and high levels respectively.
[82] Second, as I have explained, it does not include the $2000 income to be attributed to Ms. Rossi for investment income.
[83] The revised DivorceMate calculations are based on setting Mr. Spanier’s income available for support at $47,100 (as agreed by the parties) and Ms. Rossi’s income at $8,965. The DivorceMate formula used specifies that the adult children live with Mr. Spanier in the summers. These calculations yield amounts of $1,086, $1,267, and $1378 as the low, mid, and high levels. I note that the SSAGs are, in fact, guidelines. According to the Ontario Court of Appeal in Fisher v. Fisher 2008 ONCA 11, 88 O.R. (3d) 241, the SSAG are only advisory, not binding, and do not apply in atypical cases. The Court writes at para. 97:
the Guidelines cannot be used as a software tool or a formula that calculates a specific amount of support for a set period of time. They must be considered in context and applied in their entirety, including specific consideration of any applicable variables, and, where necessary, restructuring.
The Court recognized that it remains important to keep the circumstances of each case in mind when applying the SSAG amounts, at para. 96:
The reasonableness of an award produced by the Guidelines must be balanced in light of the circumstances of the individual case, including the particular financial history of the parties during the marriage and their likely future circumstances.
[84] In this case, none of the parameters reflects the situation perfectly. Here, the children are adults but, as I have indicated, Mr. Spanier continues to contribute significantly to the support of the children, not only during the summers but while they are away at university. In addition, Aja is, at least temporarily, living at home and it is not presently clear that she will be able to support herself for some time. It does appear that she is likely to be living at home for the next year. In conclusion, taking the SSAGs into account, as well as all the circumstances which I have outlined into account, I find that the appropriate level of spousal support payable by Mr. Spanier to Ms. Rossi in the circumstances is $1,000 per month.
[85] The support order is retroactive to the date of the application, which is November 19, 2013.
[86] In addition, as requested in the application by Ms. Rossi, a divorce order shall issue.
[87] If the parties are unable to agree as to costs, they may file brief submissions in writing with the court within 30 days of today’s date.
Harvison Young J.
Released: October 7, 2014
COURT FILE NO.: FS-13-391541
DATE: 20141007
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANITA ROSSI
Applicant
– and –
CRAYNE SPANIER
Respondent
REASONS FOR JUDGMENT
Harvison Young J.
Released: October 7, 2014
[^1]: Ms. Rossi’s evidence was that this amount was $140,000. Mr. Spanier was that it was $148,000. Where there is conflicting evidence as to the numbers, I prefer the evidence of Mr. Spanier unless I specify otherwise because his record-keeping was thorough and his evidence specific and consistent, whereas Ms. Rossi was very vague about such matters.