COURT FILE NO.: FC-12-1503
DATE: 2014/09/09
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
RAHUL KOCHAR Applicant
– and –
AMITA KOCHAR Respondent
Counsel: Carol A. Crawford and Linsey Sherman, for the Applicant Beverley Johnston, for the Respondent
HEARD: August 14, 2014 at Ottawa
REASONS FOR DECISION ON QUANTUM OF SPOUSAL SUPPORT
KERSHMAN J.
[1] The remaining issues on this motion are as follows:
Should the Husband receive some type of credit for his payment of the Wife’s car insurance
What is the quantum of spousal support that should be payable by the Husband to the Wife?
Issue #1: Should the Husband receive some type of credit for his payment of the Wife’s car insurance?
Husband’s Position
[2] The Husband argues that he should be given credit against any spousal support owing for the $146 per month from June 1, 2013 for a total of $1,022 and that from January 1, 2014 to August 31, 2014 he should receive a credit of $1,492 against any spousal support owing.
Wife’s Position
[3] The Wife argues that the car insurance was paid as credits claimed.
Analysis
[4] Since the end of March 2014 the Husband has been paying $200 per month directly to the Wife on consent to be credited to him against spousal support following the release of this decision. This agreement was reached between the parties and was set down in writing.
[5] The Court finds that for 2013 the Husband should receive a credit of $146 per month against any spousal support owing to the Wife for a total of $1,022 for seven months. For 2014, the Husband should receive a credit of $1,492 against any spousal support owing being the amount paid for the Wife’s car insurance up to August 31, 2014.
Issue # 2: What is the quantum of spousal support that should be payable by the Husband to the Wife?
Wife’s Position
[6] The Wife is seeking spousal support at the high‑end of the range being $4,654 per month commencing April 1, 2013 for the following reasons:
It is in the children’s best interest to have a lifestyle similar in the Wife’s home as the Husband’s home. The Husband is currently living in a 9,000 square foot home that was purchased for him by his parents. It was purchased for $2.65 million and continues to undergo existing renovations.
The Husband has not made full financial disclosure and objects to many of the relevant questions asked of him in questioning in July 2014.
The interim spousal support order will likely be in place for a significant period of time as financial disclosure has not yet been completed. The expert retained by the Wife to prepare the report about the Husband’s actual income for support purposes cannot complete it until all the relevant questions have been answered.
The Wife has not received any payments from the Husband on account of equalization. The Court notes that no equalization payment has been ordered to date.
The Wife has not received any regular spousal support payments and therefore she is unable to rent or purchase a home for the children. She hopes to be able to rent or purchase a home less than half the size of the Husband’s residence.
The Wife’s parents do not have any obligation to support the Wife; however, the Husband’s counsel continues to raise it in his materials. The Wife argues that Chapter 9 of the Spousal Support Advisory Guidelines (“SSAG”) allow the Court to adjust the amount of support to an individual case.
The Wife argues that the high‑range of spousal support is ordered when the following factors are present:
a. The Wife’s needs are high;
b. The Husband’s ability to pay is higher due to tax‑free benefits that he receives;
c. The Husband’s co‑habiting with a new partner, which increases his ability to pay; and
d. Standards of living concerns will push spousal support towards the high-end of the scale.
Husband’s Position
[7] The Husband argues that for 2014 the range of spousal support from the low‑end to the high‑end is the same in terms of numbers as the Wife’s. They range from $2,268.00 per month to $4,654.00 per month.
[8] The Husband argues that the parties agree on the inputs used in the DivorceMate calculations for the purpose of calculating interim support in 2014, including the costs of the care for the children. However, the Husband argues that he paid for the children’s daycare costs at preschool for the months of June, July and August 2013 and that these childcare expenses should be reflected in the DivorceMate calculations for that period.
[9] The Court notes that there is a disagreement about who paid how much for these daycare costs. That issue will be left to the trial judge to decide.
[10] The Husband has provided two sets of DivorceMate calculations. The first is for the period of June 1, 2013 to December 2013. The second is for the period from January 2014 to August 2014 inclusive.
[11] The Husband argues that one of the input issues is with respect to the Husband’s payments of the Wife’s car insurance. The Court’s decision dated May 27, 2014 ordered the parties to include as an input the Husband’s payment of the Wife’s car insurance in the amount of $1,752.00.
[12] The Husband argues that including the car insurance in the DivorceMate calculations for either 2013 and/or 2014 do not change the range of the quantum of spousal support. The Husband argues that there is no dispute between the parties that the Husband paid for the Wife’s car insurance directly for the period January 1, 2013 to March 2014 and that since the end of March 2014, the Husband has been paying $200.00 directly to the Wife on consent, to be credited to him against support following the release of this decision.
[13] The Husband asks that the quantum of spousal support be adjusted as follows:
- For 2013:
a. Spousal support should be reduced by $146.00 a month, being the amount paid to the Wife’s car in 2013; or
b. That the Husband receive a credit of $146.00 a month against any spousal support owing to the Wife, being a total of $1,022.00 for seven months.
- For 2014:
a. Spousal support be reduced by $186.50 per month for eight months, being the amounts paid to the Wife’s car insurer and to the Wife directly in 2014; or,
b. That the Husband receive a credit of $1,492.00 against any spousal support owing, being the amount paid for the Wife’s car insurance up to the end of August 31, 2014.
[14] As for the quantum of spousal support the Husband argues that interim spousal support should be set at the maximum of the low-end of the range, which for 2013 would be $2,246.00 per month and for 2014 would be $2,268.00 per month.
[15] The Husband argues that the low‑range is appropriate for the following reasons:
The Husband’s income of $230,971.20 and his ability to pay, as determined by the Court, does not include gifts or benefits provided to him voluntarily by his parents;
The Wife’s needs in the context of the standard of living enjoyed by the parties during the marriage, where the parties resided in a modest home in Barrhaven and in which the Wife continues to reside;
To provide the Wife with incentive to obtain employment and begin contributing to her own support and support of the children. It has been three years since the parties separated and, according to the Husband, the Wife has made no efforts to obtain any employment;
The low‑range gives each party 50% of the net disposable income at approximately $6,000.00 per month; and
The parties share care of the children on an almost equal basis.
Analysis
[16] In the Court’s decision dated May 27, 2014 the Court ordered child support in the amount of $2,935 per month retroactive to June 1, 2013.
[17] The Wife’s sole source of income is child support as well as any spousal support ordered.
[18] She argues that it’s important for the children to have a similar standard of living in her home as they have in the Husband’s home. She is living in the former matrimonial home and has been since the date of separation.
[19] The Husband has moved and, according to the evidence, has moved into a home owned and recently renovated by his parents. The home is 9,000 square feet. The Wife argues that the property is only occupied by the Husband and his new partner. This is contrary to the Husband’s evidence given on the motion that the home is occupied by the Husband, his new partner, the Husband’s parents, as well as the Husband’s grandfather and caregiver. The Court prefers the Husband’s evidence on this point and makes a finding to that effect.
[20] Furthermore, the two children of the marriage will reside there in accordance with the agreement set out between the parties.
[21] The Mother seeks to move into accommodation not exactly comparable but similar to the Husband’s new home.
[22] The evidence before the Court is that the Wife is looking to either rent or purchase a home between Ottawa and Manotick in a sale range between $500,000 and $800,000 or a monthly rental value of $2,500 to $3,500 per month. She hopes to obtain a residence between 3,500 and 4,000 square feet. The Court notes that the Wife lives alone except when she has the two children.
[23] The Court has reviewed the Wife’s budget which shows her expenses at approximately $12,735 per month. This was based on the Husband’s imputed income of $500,000 prior to the Court’s finding of his income being much lower. The former range based on her DivorceMate calculations was $8,102 to $12,735.
[24] The Wife’s new spousal support calculations are based on his current income as found by the Court and they range between $2,666 and $4,654 per month.
[25] The Husband argues that the Wife should receive spousal support at the low-end of the range of $2,666 per month. If the Court accepts the Husband’s calculations, he should be paying $5,601 in combined support, i.e.: $2,935 + $2,666. If the Court accepts the Wife’s calculations, he should be paying $7,589 i.e.: $2,935 + $4,654.
[26] The Court agrees with the Husband’s position that the Wife has contributed little towards the family expenses even though: 1) she is not working; 2) she is not going to school; 3) she has the benefit of a full-time nanny; 4) the children are in school; and 5) the children live week about with each parent.
[27] The Court agrees with the Husband that the Wife’s expectation, in terms of what her lifestyle should be, is unrealistic, particularly, since she is not contributing anything towards the family expenses.
[28] Notwithstanding that fact, the Court is aware of the fact that the Wife does require spousal support.
[29] Accordingly, the Court finds that the mid-range of spousal support shall be payable, which is $4,211 per month. Notwithstanding the fact that there was an argument by the Husband’s counsel that there was a differentiation in calculations for 2013 and 2014, the Court sets the spousal support at $4,211 payable from June 1, 2013 on an interim without prejudice basis. The total amount of spousal support payable from June 1, 2013 to September 1, 2014 inclusive is $4,211 x 16 = $67,376. Any credits for car insurance together with any other credits previously ordered shall be deducted from this amount. The net amount shall be payable as follows:
¼ by October 1, 2014;
¼ by November 1, 2014;
¼ by December 1, 2014; and,
¼ by January 1, 2015.
[30] Interim without prejudice spousal support shall be paid monthly by the Husband to the Wife in the amount of $4,211 commencing October 1, 2014.
Costs
[31] The parties can now look to Paragraph 95 of the decision dated May 27, 2014 to deal with the issue of costs.
[32] Order accordingly.
Mr. Justice Stanley J. Kershman
Released: September 9, 2014
COURT FILE NO.: FC-12-1503 DATE: 2014/09/09 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: RAHUL KOCHAR Applicant – and – AMITA KOCHAR Respondent
REASONS FOR decision on quantum of spousal sUpport
Kershman J.
Released: September 9, 2014