Trebinski v Trebinski, 2015 ONSC 2894
COURT FILE NO.: FS-15-041
DATE: May 5, 2015
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Faustina Joyce Trebinski, Applicant
AND
Donald Peter Trebinski, Respondent
BEFORE: The Honourable Mr. Justice Martin James
COUNSEL: Robert Howe, for the Respondent
HEARD: Written Submissions
ENDORSEMENT
James J.
[1] The applicant has applied in Nova Scotia for a provisional order under the Divorce Act varying the terms of an order dated October 28, 2010. That order set the respondent’s obligation for spousal support at $2,310 per month based on a previous consent order made by O’Neil, J on January 29, 2009.
[2] The consent order made in 2010 anticipated that certain pensions were going to be divided with the result that the applicant would have income from the divided pensions and when this occurred, the spousal support obligations of the respondent would be reduced. Not all the anticipated developments actually occurred and no steps were taken to update the rights and obligations of the parties.
[3] The applicant’s share of the respondent’s Canadian Forces superannuation pension (about $82,000) and CPP were divided at source. The respondent’s pension from the Halifax School Board could not be divided.
[4] The respondent stopped making spousal support payments in or about September 2010. I am not aware of any lawful basis to justify the succession of payments by the respondent. The respondent says that the applicant’s provisional order is actually a disguised enforcement procedure. He questions what material change in circumstances has taken place that would justify a variation of the spousal support. He says that this court (as the confirming court under the provisional order regime of the Divorce Act) should simply send the matter back to Nova Scotia and leave it to the parties to sort out their respective rights and obligations in that province after more complete information has been provided.
[5] It is difficult to fully understand the terms of the order in 2009 and the subsequent 2010 order failed to take into account various changes that had already taken place between the first and second order.
[6] It appears that the 2009 order should form the baseline to determine whether there has been a material change in circumstances that warrants a variation.
[7] More information is required in order to properly assess the rights and obligations of the parties.
[8] Under section 33(2) of the Interjurisdictional Support Orders Act, 2002 the Ontario Court to which the provisional order has been sent may request additional information and documentation. The designated authority is directed to request the following information or documents from the applicant:
To supply a breakdown of the applicant’s annual income from 2009 to and including 2014. The applicant shall provide for each year the source and amounts of all receipts/payments, for example CPP, old age security, investment income, etc. In addition, where a change in the source of a payment or the amount paid has occurred during the course of any year under review, the applicant shall provide details of the change and supply any documentation in her possession that relates to or explains the change.
The applicant shall provide an explanation as to why her financial statement dated April 30, 2014 discloses a total annual income of $12,804 yet her Notices of Assessment from the Canadian Revenue Agency for 2010, 2011 and 2012 show a total income exceeding $30,000. It may be that this differential is explained by lump sum withdrawals from the applicant’s investments but this needs to be explained. I note that the 2012 tax return attached to the applicant’s financial statement discloses receipt of $22,320.60 from “other pensions or superannuation” in addition to old age security and CPP benefits. This suggests to me that the applicant is encroaching on her investments in order to cover living expenses.
Particulars of any withdrawals from an RRSP, RIF or LIRA including amounts involved, dates of withdrawal and supporting documentation. In addition, the applicant is to provide a copy of the monthly statement for December 31st for each year under review so that the value of these investments can be determined from year to year.
Details of how the applicant’s share of the lump sum division of the respondent’s Canadian Forces superannuation pension has been invested to generate income.
An explanation as to why the applicant delayed bringing this application until 2014.
A fresh financial statement as the financial statement that the applicant originally prepared is now a year old.
A statement as to how much, if any, of the applicant’s $18,000 equalization indebtedness has been paid.
An up-to-date statement of arrears.
[9] The applicant shall supply this information and documentation within 60 days of receiving the request.
Temporary Support Variation Order
[10] Section 33(3) of the Act authorizes the Ontario Court to make a temporary order pending receipt of the requested information from the applicant.
[11] It appears that there has been a substantial income differential between the parties that warrants the issuance of a temporary order. The factors I have taken into account in making this assessment are as follows:
a. The applicant’s annual income, not allowing for lump sum withdrawals from investments, appears to be about $13,000 annually;
b. The respondent’s income in 2014, based on the respondent’s affidavit of April 17, 2015, amounts to about $63,000 per year. The calculation of total monthly income for 2014 as shown on Exhibit A does not appear to be correctly stated at $3,830.85. The veteran disability portion of this income, $2,943.74, is paid on a tax free basis. Tax free payments usually get grossed up by the notional income tax payable. The respondent says the disability payment includes an allowance for clothing of about $62 monthly and a caregivers allowance of $503 monthly and these amounts should be deducted from the amount paid when calculating his true income. The respondent says this reduces the value of this payment to $2,473 per month. Also, the respondent takes the position that because the superannuation pension was divided, no portion of his share of the pension should be included in the support calculation because the pension was divided. Perhaps the same argument can be made for the CPP which was divided as well.
[12] While the fact that a pension has been divided needs to be taken into account when determining spousal support rights and obligations, and is usually deducted from the income calculation, it is not automatically assumed that no portion of the support payer’s income stream generated by the divided pension can be taken into account for support purposes if there is a substantial disparity between the standards of living of two former spouses who were in a long term marriage.
[13] Temporary orders are often made on the basis of incomplete financial information. In this case there is uncertainty with respect to the calculation of income both with respect to the applicant and the respondent but it appears to me that a temporary order is appropriate. For the purposes of this temporary order I am going to arbitrarily assume that the applicant’s income is $13,000 annually and that the respondent’s income is $36,000 annually and set the amount payable for temporary support by the respondent to the applicant in the amount of $900 per month commencing May 1st, 2015 pending a further order.
[14] I am aware of the fact that the applicant was obligated to the respondent for an $18,000 equalization payment but this is offset by the possibility of a substantial support arrears claim. I am ignoring both items for the purposes of a temporary support order pending the receipt of additional information.
[15] A copy of the transcript of the proceedings in the Ontario Court on April 1st, 2015 together with the supplementary affidavit of the respondent dated April 17, 2015 is to be included in the package to be returned to Nova Scotia.
[16] This proceeding is adjourned pending the receipt of the requested information from the applicant.
Mr. Justice Martin James
DATE RELEASED: May 5, 2015
COURT FILE NO.: FS-15-041
DATE: May 5, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Faustina Joyce Trebinski, Applicant
AND
Donald Peter Trebinski, Respondent
BEFORE: The Honourable Mr. Justice Martin James
COUNSEL: Robert Howe for the Respondent
ENDORSEMENT
James, J.
Released: May 5, 2015