COURT FILE AND PARTIES
COURT FILE NO.: FC-11-739-1
DATE: 20141218
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: TRACY LYNN HUME, Applicant
AND
MARC JAMES TOMLINSON, Respondent
BEFORE: Madam Justice Toscano Roccamo
COUNSEL: Suzanne Côté, for the Applicant
Barbara Cohen, for the Respondent
HEARD: November 28, 2014
ENDORSEMENT
[1] The Applicant, Tracy Hume, moves for an order requiring the Respondent, Marc Tomlinson, to pay mid to high-end spousal support pursuant to the Spousal Support Advisory Guidelines (SSAG) retroactive to March 1, 2012.
[2] The parties were married on May 30, 1998, and separated on December 27, 2009. The parties were divorced on May 31, 2011. While represented by counsel, the parties entered into a Separation Agreement dated August 29, 2010, eight months after they separated on December 27, 2009.
[3] The Separation Agreement did not specify an amount for spousal support, due to the fact that the Respondent had been laid off from his employment as Vice President of Canadian Operations for CT Canada, a non-profit research and development company on July 1, 2010, and was seeking alternate employment. By the date the Agreement was signed, the Respondent was re-partnered in Edmonton, Alberta with Jacqueline Suzanne Hebert, whom he married in 2012.
[4] The Applicant had not worked since January 2007, over two years before the Separation Agreement was signed, due to health reasons and her assumption of child care responsibilities. She did not resume work until October of 2010.
[5] Although the Separation Agreement did not fix an amount for spousal support, it acknowledged Ms. Hume’s entitlement to spousal support, having regard to a 15 year period of cohabitation, and the role she assumed as a stay-at-home mom to the parties’ children, Stuart and Julia, who were only eight and five years old respectively when the parties separated. The Agreement also set child support at only $297.00 a month while the Respondent was in receipt of unemployment insurance benefits,
[6] The Respondent paid the Applicant $18,950.00 in spousal support within the range of mid to high level SSAG at $2,700.00 per month from January to July 2010, and paid no child support at all until August 2010. He paid the Applicant the sum of $2,021.00 in spousal support in 2011.
[7] Although neither party was employed when the Separation Agreement was signed, no calculations were attached to the Agreement to illustrate the proportionate breakdown of support as and when both child support and spousal support were in play, or upon a material change in circumstances, including either party finding part-time or full-time employment.
[8] The Separation Agreement simply laid out “in a vacuum” a formula for review of spousal support each year coincident with the review of child support. The formula is as follows:
6.5 Spousal support will commence the month after Marc’s employment has begun. At that time, the spousal support will be adjusted to ensure that Tracy is receiving 55% of their respective Net Disposable Incomes after taking into account child support, spousal support, non-discretionary source deductions and taxes.
6.6 Tracy and Marc know that each must contribute to their own support. Tracy’s parenting responsibilities are complicated not only by Marc living in a separate province but also their respective extended families living in different cities than Tracy and the children. Notwithstanding this, Tracy intends to maximize her employment opportunities as are consistent with her parenting responsibilities and long term goal of self-sufficiency.
6.7 While child support is being paid, the parties will review and adjust the amount of spousal support each year coincident with the review of child support. The parties intend that the combination of child and spousal support transferred by Marc to Tracy for each year will equal 55% of the current net disposable incomes (NDI) of the parties. In determining NDI, the parties will use Divorcemate software and will include all source deductions from pay and contributions to special expenses when doing the calculations. If agreeable, the parties will retain Colleen Currie (mediator) to assist with the calculations. [Emphasis added]
[9] Paragraph 6.8 of the Agreement provided that spousal support could be changed in the event of a material change in circumstances, even if the change was foreseen or foreseeable, including: where either parties’ financial circumstances changed including when either obtained part-time or full-time employment; if the child support arrangements changed; if the Applicant remarried; or cohabited with another for more than 36 months; if either parties’ health affected circumstances; or if any other similar change warranted a review of spousal support.
[10] In addition, paragraph 6.10 of the Separation Agreement also provided for the termination of spousal support in December, 2020, or sooner with the death of the parties.
[11] Since 2011, the Respondent has refused to acknowledge any further requirement to pay spousal support based on the fact that his combined payment of table child support and extraordinary expenses under s. 7 of the Child Support Guidelines amounts to a payment of 55% Net Disposable Income as per paragraph 6.7 of the Separation Agreement.
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Madam Justice Toscano Roccamo
Date: December 18, 2014
COURT FILE NO.: FC-11-739-1
DATE: 20141218
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Tracy Hume, Applicant
AND
Marc Tomlinson, Respondent
BEFORE: Madam Justice Toscano Roccamo
COUNSEL: Suzanne Côté, for the Applicant
Barbara Cohen, for the Respondent
ENDORSEMENT
Toscano Roccamo J.
Released: December 18, 2014