CITATION: Cowie v. Dorman, 2015 ONSC 1858
COURT FILE NO.: 933/13
DATE: March 25, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Laurie Cowie
Applicant
– and –
Kevin Dorman
Respondent
Caroline Gerbac, for the Applicant
HEARD: March 6, 2015, at Perth
RULING ON MOTION
PEDLAR, J
[1] This is a motion and cross-motion to deal with the issue of child and spousal support as well as a claim for repayment by the respondent herein to the applicant of some monies forwarded to him in the form of a cheque made payable to both parties as well as a claim for increased expense to the applicant of alternate financing because the respondent would not sign the title documents required for her to get a mortgage in a timely fashion.
[2] To deal with the issue of child and spousal support, it is essential to determine the incomes of the parties in this matter for the purpose of this motion. I make the following findings as to their respective incomes.
[3] Based on the documentation filed at Tab 4 of the respondent’s affidavit sworn February 20th, 2015, I find his annual income to be $81,222.00 basic pay. There are two recent pay stubs reflecting that amount, both dated in January of 2015, and a letter from his employer dated February 12th, 2014, confirming that was his income for the year 2014. I recognize that I do not have a notice of assessment to confirm that income and this interim variation may need to be amended to comply with any evidence that shows his income to be different once that information is disclosed in a more complete way with the filing of his income tax returns and notices of assessment for 2014.
[4] The applicant’s income is conceded to be $21,000.00 by the applicant for the purpose of this motion and the filing by the applicant of a DivorceMate calculation relating to spousal support. It must be noted that in that calculation, they attribute an income to the respondent of $88,000.00 based on a previous year’s income. The respondent’s calculations at Tab 16 in Form 15(b) claim that the applicant has an income of $22,532.04 of which $400.00 monthly is employment earnings. The applicant had previously filed notices of assessment for the years, 2011, 2012 and 2013. Those are found at Tab 15 of the Continuing Record. Again, I am in the position of having to make some assumptions and attributed income. For the purpose of this motion only, and subject to any change that may be evident from further disclosure, I will use the respondent’s calculation of the applicant’s income as $22,532.04. The difference between that amount and the $21,000.00 per annum conceded by the applicant on this motion would be a relatively modest difference in support to be paid by the respondent for either child support, where there is a setoff because of the time share of the children with each party, or spousal support.
[5] Based on those assumptions, I accept the respondent’s position that child support is payable by the respondent to the applicant in the $846.73 for the two children named in the motion.
[6] That is an interim without prejudice order relating to the ongoing support without determining any retroactive support that may be due based on actual incomes for the years, 2012, 2013 and 2014. First payment under the new child support order will be effective January 1st, 2015. The question of retroactive payments due, if any, is reserved for final resolution.
[7] With regards to spousal support, again, based on the attributed income set out above, on a without prejudice basis, I find a reasonable amount of spousal support to be $400.00 per month, payable until January 1st, 2019, rather than the original date of 2018, in view of the reduced amount.
[8] It has been six years since the parties separated. They lived together approximately eleven years. It is the responsibility of the applicant to become self-supporting within a reasonable period of time and four more years of support I find to be quite fair in that regard. That spousal support order is also without prejudice on the same terms as the order for child support. If further disclosure shows that incomes were different that attributed, the matter can be reviewed and this order is without prejudice to any resolution of retroactive payments, if any, due. The first payment will be January 1st, 2015. Both support orders are payable to the Director, FRO, and a Support Deduction Order will issue.
[9] With regards to the issue of the advancement by the mortgage company of $9,130.79 of a cheque payable to both parties at the time the applicant arranged the mortgage, it is agreed that with interest, that amount is now $10,875.36. I find that the applicant is entitled to a repayment of that amount in full. The evidence does not disclose any agreement between the parties as to how that money was to be used and the applicant has been left to pay the full amount, having not received any of that money. It is unclear to me, as of the date of this ruling, why specific amounts were paid out to the parties separately and this amount was paid to them jointly.
[10] Nevertheless, I am satisfied that the applicant has been left with the full responsibility for that amount and never received any of that money and she should be entitled to its full amount. The question of how that money is to be repaid is a very live issue. The respondent has made a consumer proposal in order to attempt to avoid bankruptcy. I find that the most reasonable resolution for these parties is that the respondent arrange a transfer from his pension fund into the name of the applicant in the amount of $10,875.36. I realize that the applicant will then not receive that full amount in cash, either without paying income tax on it if it is able to be withdrawn, or it may be deferred so that it can only be withdrawn as a pension at some later date. In view of the way the combination of health concerns and debt negatively affect the respondent’s capacity to make a lump sum payment, I find any other form of payment unrealistic at this time.
[11] If he does end up in bankruptcy, this amount would not be eligible for the protection provided to ongoing support orders as it relates to a property matter.
[12] With regards to the applicant’s claim for $4,800.00 to be repaid to her because of the increased costs of the financing she had to arrange when the respondent refused to sign over title to the property to her for twelve months, I find that the respondent’s explanation confirmed by the exhibit at Tab 2 of his affidavit sworn February 20th, 2015, is reasonable. I find the respondent was not in a position to sign title documents because of his filing of a consumer proposal as confirmed by the Senior Associate from Deloitte Restructuring Inc. That claim for $4,800.00 was an unintended casualty of the serious financial predicament in which the respondent found himself. That claim is dismissed on the evidence available on this motion.
[13] This matter has resulted in a rather mixed ruling in terms of the issues. I would, therefore, reserve costs, if any, of this motion to final resolution. As indicated on March 6th, when the matter was argued, the balance of the issues are adjourned to a settlement conference date to be set by the court at the request of either party. That date should not be set until all financial disclosure is available and the parties have conducted their own resolution discussions and exchange reasonable offers to settle the outstanding issues.
The Honourable Mr. Justice K.E. Pedlar
Released: March 25, 2015
CITATION: Cowie v. Dorman, 2015 ONSC 1858
COURT FILE NO.: 933/13
DATE: March 25, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Laurie Cowie
Applicant
– and –
Kevin Dorman
Respondent
RULING ON MOTION
Pedlar, J.
Released: March 25, 2015