Dorey v. Adams, 2015 ONSC 294

COURT FILE NO.: 25-2013D

DATE: January 15, 2015

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Wayne W. Dorey, applicant

AND:

Shelley M. (Dorey) Adams, respondent

BEFORE: MITROW J.

COUNSEL: David A. Reid for the applicant

Sheryl M. Feagan for the respondent

HEARD: November 19, 2014; with additional written submissions filed thereafter

ENDORSEMENT

INTRODUCTION

[1] The main issues argued on the motions were interim child support and interim spousal support. Due to time constraints on the hearing of the motions, it was discussed with counsel, and agreed, that counsel would forward written submissions on the issues not addressed during oral argument. A timetable for those submissions was ordered.

[2] Those submissions were received as ordered during the month of December with the last submission being the respondent’s reply, dated December 10, 2014.

[3] The new issues canvassed by the written submissions related to the respondent’s claims for interest and her claims requiring the applicant to pay for medical expenses that would have been covered had the applicant not removed the respondent from his benefit plan.

[4] In her motion, the respondent also requested an order that the applicant reinstate her for coverage under his group medical plans.

BRIEF BACKGROUND

[5] The applicant (“Mr. Dorey”) and the respondent (“Ms. Adams”) were married to each other in 1991 and they separated in or about August 2012.

[6] There are three children of the marriage: Adam, born February 20, 1993; Austin, born March 7, 1996; and Andrew, born January 25, 1998.

[7] Mr. Dorey works as a crane operator. In rounded numbers, his line 150 income is as follows:

• 2010

• 2011

• 2012

• 2013

$$90,880

$144,800

$105,600

$51,235

[8] Ms. Adams had surgery in the fall of 2013. This has affected her ability to work. In early 2013, Ms. Adams’ employment was terminated without cause but her salary was continued until the fall of 2013.

[9] During the first six months of 2014, Ms. Adams received a little over $9,000 from employment insurance benefits.

[10] Effective in May 2014, Ms. Adams secured part-time employment, working approximately 20 hours per week at an hourly rate of $23.16. However, effective the latter part of October 2014, this increased to four days per week.

[11] Further, Ms. Adams secured a second part-time job, earning in the neighbourhood of $23 per hour and working two, eight hour shifts per month.

[12] The main issue relating to interim support is the income of the parties.

[13] There is an existing interim order dated November 28, 2013 pursuant to which Mr. Dorey pays “global support” to the applicant for interim child support and interim spousal support in the amount of $1,000 per month commencing December 1, 2013.

[14] The parties had executed partial minutes of settlement whereby all property issues were resolved, including equalization payment and division of the matrimonial home sale proceeds. This settlement provided that the issues of ongoing s. 3 child support and s. 7 expenses and spousal support payable by the respondent commencing December 1, 2013 remain outstanding. Further, the minutes of settlement stated that the issue of extended benefit coverage being provided for the respondent by the applicant from the date of separation onwards also remains outstanding. The first partial minutes of settlement were dated November 18, 2013 and signed by the parties. That document provided for the basics of the settlement; the complete settlement was to be addressed in comprehensive minutes of settlement. Those comprehensive minutes of settlement were signed by the last of the parties on June 13, 2014.

THE INCOMES OF THE PARTIES

[15] Mr. Dorey’s income fluctuates, given the nature of his work. In his affidavit sworn September 12, 2014, Mr. Dorey deposed that he may earn $85,000 for 2014 (see paragraph 18). As it turned out, Mr. Dorey was not quite generous enough estimating his income, as in fact he earned $84,352 as at October 18, 2014 as reflected in his paystub appended to his affidavit sworn November 19, 2014 (and filed as Ex. 2 at the hearing of the motion). In that same affidavit, Mr. Dorey deposed that he had worked on some minor projects since then, earning $4,500. Mr. Dorey anticipated that in the month of December he would be working “very little.”

[16] Mr. Dorey submits that an estimate of $95,000 for his 2014 income would be appropriate. Ms. Adams submitted that $100,000 should be used.

[17] Mr. Dorey’s earlier estimate as to his 2014 income proved to be somewhat inaccurate. I approach with caution Mr. Dorey’s estimate as to his income for the balance of 2014 for the period after October 18, 2014.

[18] As explained below, both the interim child support and interim spousal support shall commence September 1, 2014.

[19] I find that it is appropriate to quantify Mr. Dorey’s income at $100,000 for 2014, and to use that income for the purposes of quantifying interim support, both child and spousal.

[20] In relation to Ms. Adams, I find that the best measure of her income is to look at her earnings for both part-time jobs effective September 2014 onwards. For Ms. Adams, I use her current part-time employment income for her main job (now four days per week), which approximates to 27 hours a week at $23.16 per hour, and her second part-time job which approximates $23 per hour at two, eight hour shifts per month. This generates a gross income in the range of $37,000. However, I take into account that the increase of Ms. Adams’ hours to approximately 27 hours per week at one of her jobs may affect adversely her availability for the other part-time job.

[21] For the purposes of these motions, I assess Ms. Adams’ ability to earn an income at $35,000 annually.

CHILD SUPPORT

[22] There is no dispute that effective September 2014 that the child Andrew, who had been living with Mr. Dorey as at the end of June 2014, had chosen to live with Ms. Adams and that he continues to attend high school.

[23] However, there is a dispute as to where Andrew lived during the summer of 2014; Ms. Adams says he lived most of the summer with her, whereas Mr. Dorey claims that Andrew spent “approximately” two weeks of the summer at Ms. Adams’ residence.

[24] It is not possible to resolve the dispute as to where Andrew lived during the summer of 2014 on the conflicting affidavit evidence. This is a matter best left for the trial judge.

[25] Regarding the child Austin, there is no dispute that he returned to high school effective September 2014 and that he is living with Ms. Adams.

[26] However, on a further review of the affidavit material, I am persuaded by Mr. Reid that it is most unlikely that Austin was a “child of the marriage” within the meaning of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) c.3 [as am. by S.C. 1997, c.1] during the summer of 2014 while Austin was living with Ms. Adams. Austin attained age 18 in March 2014; Ms. Adams’ own affidavit sworn September 3, 2014 indicates that Austin was hoping to obtain an apprenticeship and was currently working 35 to 40 hours per week; this was described by Ms. Adams as a “temporary job.”

[27] Ms. Adams further deposed that Austin had been applying for work (see paragraphs 43 and 44). There is no evidence in this affidavit, even though it is sworn September 3, 2014 (around the time high school starts), indicating that Austin is planning to enter school.

[28] The evidence on the motion material is more consistent with a conclusion that Austin formed an intention to enter high school very soon after September 3, 2014. It is also noted that proof of Austin’s marks from June 2014 and confirmation of his current enrollment and marks (see Ex. 4) were not forthcoming from Austin or Ms. Adams until the day of the motion.

[29] Ms. Adams’ request for interim support for Austin for July and August 2014 is dismissed but without prejudice to Ms. Adams’ right to make this claim at trial. The table amount of child support for two children based on an income of $100,000 is $1,416 per month. Mr. Dorey shall pay interim child support to Ms. Adams for the children, Austin and Andrew, in the amount of $1,416 per month commencing September 1, 2014, said amount payable pursuant to the Divorce Act and s. 3(1)(a) of the Federal Child Support Guidelines, based on an income of $100,000.

INTERIM SPOUSAL SUPPORT

[30] I order Mr. Dorey to pay interim spousal support to Ms. Adams in the amount of $1,000 per month commencing September 1, 2014 pursuant to the Divorce Act.

[31] This amount is consistent with the SSAGs and falls just marginally below the midpoint of the SSAGs (see Ex. 5 filed on the hearing of the motions).

[32] In arriving at this amount, I have considered the affidavit evidence, the financial statements of the parties and also the specific written submissions made on behalf of the applicant in relation to the income and expenses of both parties.

[33] In relation to the interim child support and interim spousal support payments required to be made as set out above, Mr. Dorey shall receive a credit in respect of all payments of $1,000 per month that he has made on or after September 1, 2014 pursuant to the existing interim order of Garson J. dated November 28, 2013. If there were any arrears outstanding pursuant to that order as at August 31, 2014, then any payments made after that date shall be credited first to those arrears.

THE RESPONDENT’S CLAIM FOR INTEREST

[34] The respondent’s claim for interest is based on her allegations that the applicant failed to pay to the respondent on time her share of the matrimonial home sale proceeds and the equalization payment owing to her as agreed to by the parties in the aforementioned preliminary and final minutes of settlement.

[35] The respondent submits that interest should be payable to her pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43 and the respondent calculates the interest owing at $1,723.49. The details of the respondent’s calculation of pre-judgment interest are set out in the affidavit of Kimberley Edward sworn September 3, 2014.

[36] This affidavit includes, it appears, pre-judgment interest of 1.3% and also post-judgment interest of 3% pursuant to the Courts of Justice Act.

[37] This is not a proper claim to make on a motion on the facts of this case. Firstly, there is no agreement on the interest, or in fact whether interest is payable. Interest has not been agreed to in the minutes of settlement.

[38] Secondly, determination of pre-judgment and post-judgment interest should be reserved to the trial judge under the Courts of Justice Act.

[39] It appears that the respondent is treating the minutes of settlement as a “judgment” that thereby entitles her to post-judgment interest.

[40] On the facts of this case, there is simply no basis upon which the court can, or should, decide post-judgment and pre-judgment interest at this interlocutory stage.

[41] Accordingly, the respondent’s claim for interest pursuant to the Courts of Justice Act is dismissed, but without prejudice to the respondent’s right to assert this claim at trial.

THE RESPONDENT’S CLAIM IN RELATION TO MEDICAL EXPENSES

[42] In her written submissions, the respondent limits her claim on an interim basis for medical expenses in the amount of $648.95. The details of these expenses and receipts are contained in a letter dated July 18, 2014 from Ms. Feagan to Mr. Reid. The expenses relate to prescription receipts ($26.53 + $22.42) plus orthotics ($600) and prescription stockings ($100).

[43] Ms. Adams deposes that these types of expenses were previously paid by Mr. Dorey’s medical plans. Mr. Dorey admits that he removed Ms. Adams from his various medical plans and placed his current common-law partner on those plans. Mr. Dorey does not dispute that those were the types of claims that were covered in the past. He also does not dispute Ms. Adams’ allegation that he removed Ms. Adams from the plan without telling her.

[44] Mr. Dorey should not have removed Ms. Adams from his medical plan. He was aware that she relied on the plan to cover her legitimate medical expenses. Mr. Dorey files no evidence disputing that Ms. Adams remains eligible for coverage. The amounts claimed on an interim basis are modest.

[45] Mr. Dorey shall forthwith pay to Ms. Adams the sum of $648.95 to reimburse her for her medical expenses.

[46] Also, Mr. Dorey shall forthwith remove his current common-law partner from all of his group benefit plans, including medical, dental and drug benefit plans, and he shall immediately reinstate Ms. Adams for coverage under all of those plans and he shall not remove Ms. Adams from coverage on those plans unless this court orders otherwise, or the parties agree in writing otherwise.

COSTS

[47] The parties are urged to agree on costs. If the parties are unable to agree, then written submissions as to costs may be made to the trial coordinator at Goderich, with the costs submissions not to exceed three typed pages, double spaced, minimum font 12, plus any authorities and offers to settle. The respondent shall forward her written submissions within 14 days; the applicant shall forward his responding submissions within 14 days thereafter; and the respondent shall forward her reply submissions, if any, within 7 days thereafter, with the reply submissions to be limited to a maximum of two pages.

[48] Order to issue accordingly.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: January 15, 2015