CITATION: Cipriano v. Hampton, 2015 ONSC 349

NEWMARKET COURT FILE NO.: FC-10-35115-00

DATE: 20150116

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DANIELA CIPRIANO

Applicant

– and –

TIMOTHY SIMON HAMPTON

Respondent

Daniela Cipriano, Self-Represented

Timothy Simon Hampton, Self-Represented

HEARD: December 4 and 5, 2014

REASONS FOR DECISION

MULLIGAN J.:

[1] This two-day trial proceeded on the issues of child support, spousal support, and net family property. Both parties gave evidence at trial.

Background

[2] The following background will provide context for the discussion that follows. The parties married on March 30, 2002. They have a child of the marriage, James Donald Hampton, who was born July 12, 2004. The parties separated on March 20, 2010, and are now divorced.

[3] The issue of child custody was dealt with by way of an arbitration hearing. An arbitration award dated September 30, 2012 granted each parent week-about child custody. The respondent father is responsible for all section 7 expenses. The applicant mother, Ms. Cipriano, is now 41. The respondent, Mr. Hampton, is now 46.

[4] Both parties had counsel when this application was commenced in 2010. They are now self-represented. There have been several orders previously obtained in these proceedings.

[5] Of significance is the June 18, 2010 Temporary Without Prejudice Order, ordering the respondent to pay to the applicant $2,600 in spousal support and $903 per month in child support. The respondent has made these payments monthly by way of deduction from his employment income at York University.

[6] Initially, the child of the marriage resided with the applicant mother. As noted, the parties agreed to an arbitration. On September 30, 2012, an arbitration award ruled that custody would be shared by the parents on a week-about basis, with the respondent father being responsible for section 7 expenses.

[7] The parties sold the matrimonial home and the proceeds were retained by their solicitors in trust. Those funds were used in part to pay for the arbitration process. In addition, the applicant received certain advances against her share, totalling $19,400. The current balance on hand in trust is $38,152.92.

Contempt Proceedings

[8] On September 10, 2014, Justice Vallee found the applicant in contempt for failing to file a trial record by June 30, 2014. She was given a further opportunity to purge her contempt by September 24, 2014, but has not done so. The respondent brought a motion to strike her pleadings based on that failure, but that motion was dismissed by Justice Nicholson on October 23, 2014.

[9] The respondent did file a trial record, and served and filed two requests to admit which were not responded to by the applicant. In addition, the applicant did not file an up-to-date financial statement or a statement of net family property.

Income of the Respondent Father

[10] The respondent is employed at York University and his Line 150 income over the years is well established on the record before the court. His income for previous years is as follows:

2010: $104,933

2011: $107,550

2012: $109,734

2013: $112,203

2014: $111,882 [estimated]

Income of the Applicant Mother

[11] The applicant claims that she has had no income since separation. The applicant came to Canada on July 7, 2007 as a landed immigrant prior to their marriage. She testified that she was required to take a personal support worker course to meet the requirements of the immigration authorities in order to qualify her for work in Canada. She successfully completed that course. After the marriage and prior to the birth of their son, the applicant worked in a cafeteria at York University for cash. This employment continued until the birth of their son. She did not work thereafter. Instead, she was a stay-at-home mother, while the respondent father continued his employment at York University. The applicant states that she has not had any successful employment despite some efforts to find employment since separation. She also testified that child care issues and some emotional difficulties that her son was experiencing required her to be home. She testified that there were occasions when he was sent home from school early because of behavioural issues, and she was not able to pursue any employment or upgrading of her qualifications during that period of time. She indicated that she now attends an immigrant’s upgrading program four hours per week in an attempt to improve her qualifications.

[12] I pause to note that, since September of 2012, her son has been residing with her on a week-about basis. Although he has been diagnosed with some emotional difficulties, he is now apparently stabilizing and attends York Centre School in a program that is adapted to his needs. When he is residing with his mother, he takes a cab to school. When he is residing with his father, he attends before school and after school daycare. Because of the requirement of the daycare centre for payment, the respondent father is required to provide and pay for daycare even on the weeks when their son is residing with the mother and not using the daycare service. He started attending this program in September of 2014. It is easy to conclude therefore, that the applicant mother has available time to work all week while her son is in school or at daycare, and on weekends when her son is residing with his father.

The Divorce Act, R.S.C. 1985, c.3 (2nd supp.)

[13] Section 15.2 of the Divorce Act enables the court to make an order requiring a spouse to support the other spouse, but encourages each spouse to move toward self-sufficiency. Section 15.2 (6) provides further guidance:

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should,

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[14] The respondent father submits that the court should impute income to the applicant mother based on income of about $36,000, an amount which the respondent submits is remuneration for a personal support worker with beginning qualifications.

[15] The applicant mother suggests that she has been unable to secure that type of employment, or any other employment because she does not have any experience. However, she has not documented her efforts, if any, to find work, whether it be part-time or full time. I am not satisfied on the record before me that she has made reasonable efforts to move toward self-sufficiency, either as a personal support worker or work in a cafeteria similar to the work that she performed during the marriage, prior to the birth of their son. Under the circumstances, I am prepared to impute income to her on a stepped-up basis commencing in 2012, when the arbitration hearing ordered the week-about arrangement. I am satisfied that the following amounts of income should be attributed to her for the following years:

2012: $5,000

2013: $10,000

2014: $15,000

2015 (until June): $7,500 (Annualized as $15,000)

2015 (July-Dec): $10,000 (Annualized as $20,000)

2016: $25,000

2017-2020: $30,000

Child Support

[16] The imputation of income to the applicant and a review of the increasing income of the respondent over the years necessitate a finding of the appropriate child support amount for each year. The change in custody arrangements in 2012 necessitates some offsets based on the applicant’s imputed income. However I also find that, due to the respondent’s own increase in income during this time, he owes the applicant additional child support for the years of 2010 to 2013. I therefore find additional child support owing from the respondent to the applicant as follows, as set out under schedule A in further detail:

2010: $117

2011: $396

2012: $636

2013: $876

Total owing to the applicant: $2,025

[17] For 2014 I find that, as a result of the income I have imputed to the applicant, she must return to the respondent an overpayment of $324 of child support, which will be credited against the amount he owes.

[18] Because the respondent has paid $903 per month throughout this period of time, it is necessary to make some adjustments for the debits and credits as shown on the attached chart. The respondent’s income rose each year and, in the fall of 2012, the child began living with both parents on a shared week-about arrangement. I find that the respondent must pay to the applicant a total of $1,701 in child support owing. The calculation of these amounts is outlined under schedule A at the end of this judgment.

Spousal Support

[19] Spousal support must also be adjusted based on the imputed income to the applicant, commencing in 2012. The respondent has paid $2,600 per month throughout, but has had the advantage of using this amount as a tax deduction on each year’s tax return. I am mindful of the fact that this was an eight-year marriage and the applicant did not work during the marriage after their son was born, and was a stay-at-home mother until separation. There is some aspect of a compensatory award that is applicable in this case. I have therefore used the mid-range SSAG Guidelines as to the appropriate amount of support. Ordering the applicant to repay spousal support for years prior to 2012 would create economic hardship within her household, a household where she provides for herself and her son on a week-about basis. I therefore have considered the spousal support obligation commencing in 2012, and I make the following findings of the appropriate monthly support, which are outlined in detail under schedule A:

2012: $2,578

2013: $2,459

2014: $2,330

[20] Because the respondent has paid $2,600 per month, this will necessitate some adjustment to the extent that an overpayment has resulted. To find the credit which would be owed to the respondent, I have used a DivorceMate feature that indicates the net cost/benefit of support which includes the tax consequences of the payor being able to deduct his support payments. This overpayment results in a credit owing by the applicant to the respondent of $3,360. Again, these calculations are included in the table under schedule A.

Net Family Property

[21] The respondent prepared a Net Family Property Statement reflecting the remaining proceeds of the matrimonial home, the evaluation of his pension at York University, and assets at the date of separation, including RSPs, debts and other matters. All these figures are outlined under schedule C subject to some adjustments which I will outline here. There was no major disagreement between the parties with respect to these larger items. The disagreement was with respect to the various chattels involved or taken by the applicant or the respondent when the marriage dissolved. The applicant suggests that the figures used by the respondent for items taken by her are inflated, whereas the items kept by him are undervalued. The respondent gave some evidence about how he arrived at these values, but he acknowledged that he had emptied the house in a hurry when he reacquired possession, and some items were used by him and others were given away. I have considered the submissions by both sides. The total value of the chattels kept by the applicant in the respondent’s view was $ 14,377.96. The total value of the chattels kept by the respondent in his view, was $ 10,819.90. I am satisfied that these figures should be adjusted to more properly reflect the market realities of used furniture and clothing. I am satisfied that an appropriate figure for items kept by the applicant is $5,751.18 and an appropriate figure for the respondent’s items is $4,328.00. I further reduced the value of the respondent’s marriage date chattels accordingly from $6,000 (excluding the wedding band) to $2,400. All of this is detailed in the attached schedule C.

[22] The respondent showed the value of his RSP after tax, but did not include a notional value for the applicant’s RSP if it were cashed. I have included this figure in schedule C.

[23] The respondent has included the appropriate figure valuating his pension at York University in his amended NFP Statement.

[24] The previous advances to the applicant have been accounted for in the net family property calculation in schedule C under “Total value of assets owned on valuation date”. After these revisions, as set out in the attached schedule C, I find that the net family property of the respondent is $88,446.77. The net family property of the applicant is $60,351.35. The difference is $28,095.41, and after dividing this figure in half, the respondent owes the applicant $14,047.71.

Conclusion

[25] The applicant has received an overpayment of spousal support of $3,360 but has been underpaid for child support in the amount of $1,701. Therefore the respondent has overpaid by $1,659 as set out under schedule A. It is ordered that the applicant pay to the respondent $1,659 for overpayment of spousal support after including a credit to the applicant for the child support she is owed.

[26] It is ordered that the respondent pay to the applicant $14,047.71 as an equalization payment. This would result in a net payment by the respondent to the applicant of $12,388.71 after taking into account the overpayment of spousal and owed child support previously mentioned.

[27] The solicitors, Pirsanti and Company, have funds in hand in the amount of $38,152.92 half of which ($19,076.46) is owed to each party. Since the applicant now owes the respondent $12,388.71, this amount will be deducted from his portion so that he will be paid out $6,687.75. $12,388.71 will then be added to the applicant’s portion so that she will be paid out $31,465.17. This is outlined in the enclosed chart below. It is therefore ordered that the trustee for the real estate funds, their solicitors Pirsanti and Company, pay out from the funds on hand of $38,152.92 the sum of $31,465.17 to the applicant and the sum of $6,687.75 to the respondent. In the event that that firm has any administrative charges, then those costs should be borne equally from the parties against their share.

Applicant

Respondent

Funds on Hand with Pirsanti and Company owed to each party (Total of $38,152.92)

$19,076.46

$19,076.46

Total amount ordered to be paid by Applicant to respondent (for Equalization & child support minus spousal support overpayment)

$12,388.71

-$12,388.71

Total funds to be paid out to each party

$31,465.17*

$6,687.75*

*Minus half of firm’s administrative charges, if any.

[28] Commencing January 1, 2015, it is ordered that the respondent pay $876 per month to the applicant for child support until June of 2015. From July until December of 2015 the respondent will pay $813 per month; in 2016 he will pay $773. From 2017 on the respondent will pay $728 per month until such a time as the child is no longer eligible for support or there is a change in circumstances such that a guidelines amount is no longer appropriate. These amounts are outlined in detail under schedule B. These amounts will further be subject to annual adjustment based on the parties’ reported income and the Child Support Guidelines as outlined below.

[29] It is ordered that the respondent pay to the applicant $2,330 per month for spousal support until June 2015; $2,160 per month from July to December 2015; $1,978 per month during 2016 and then $1,782 per month from 2017 to 2022. These amounts are calculated using the mid-range SSAG and are outlined, along with the child support, under schedule B. The parties had an 8-year marriage. The SSAGs suggest that spousal support be paid for between four and eight years. The child of the marriage is now 10 years of age. They were separated in 2010 and spousal support has been paid every year since. The child of the marriage should have a similar standard of living in each of the parties’ homes, and this order is designed to attempt to accomplish that goal. Therefore, I order that spousal support terminate August 1, 2022, just after the child turns 18 years of age.

[30] Pursuant to s. 21 of the Child Support Guidelines, the parties are required to annually serve and file their previous year’s tax return and notice of assessment. This disclosure should commence by June 30, 2016, and each year thereafter for child support purposes. The amount of child support will therefore be subject to adjustment based on the respondent’s stated income in accordance with the Child Support Guidelines and the applicant’s stated income should it be greater than the amount I have imputed to her.

[31] Support deduction order to issue.

Costs

[32] Both parties have achieved a level of success at this trial, however, the respondent submits that he wishes to make submissions about costs, given that he was required to prepare the trial record after the applicant failed to do so despite an order. If the respondent wishes to make submissions with respect to costs, I will receive written submissions from him through my judicial secretary at my chambers in Barrie within twenty days of the release of this decision.

[33] The applicant will then have ten days to respond to any such submissions. If I do not hear from the parties, I will assume that the issue of costs is not being pursued by either party.

MULLIGAN J.

Released: January 16, 2015

Schedule A

Husband's income

Wife's Imputed Income

Child Support Actually Paid

Child Support (Guidelines) based on income and custodial arrangements*

Child support debit/credit (per month)

2010

$104,993

$0

$903

$916

-$13

2011

$107,550

$0

$903

$936

-$33

2012

$109,734

$5,000

$903

$956

-$53

2013

$112,203

$10,000

$903

$976

-$73

2014

$111,882

$15,000

$903

$876

$27

Spousal Support Actual Paid

Net Cost/Benefit of Support Paid*

Proposed Support SSAG Mid-range

Net Cost/Benefit of Proposed Support**

Spousal support credit*** (per month)

2010

$2,600

2011

$2,600

2012

$2,600

$1,520

$2,578

$1,505

$15

2013

$2,600

$1,501

$2,459

$1,410

$91

2014

$2,600

$1,504

$2,330

$1,330

$174

Support Overpayment – Credit to the Respondent

Total Yearly Spousal Support Credit

Total Yearly Child Support

Total Yearly Credit to Respondent

2010****

-$117

-$117

2011

-$396

-$396

2012

$180

-$636

-$456

2013

$1,092

-$876

$216

2014

$2,088

$324

$2,412

$3,360

-$1,701

$1,659

*Custodial arrangements changed in 2012 after an arbitration hearing.

**The Net Cost/Benefit of Support includes the tax consequences of the payor being able to deduct spousal support payments based on DivorceMate One calculations

***This credit is the difference between the Net Cost/Benefit of the Support that was actual support paid and the Net Cost Benefit of the proposed support ie. The support that should have been paid during that period.

****For 9 months only (the parties separated near the end of March 2010)

Schedule B

Future Child and Spousal Support

Husband's income

Wife's Imputed Income

Child Support based on income*

Proposed Support

SSAG Mid-range

2015 (Jan - June)

$111,882

$15,000

$876

$2,330

2015 (July - Dec)

$111,882

$20,000

$813

$2,160

2016

$111,882

$25,000

$773

$1,978

2017-2022

$111,882

$30,000

$728

$1,782

*Subject to adjustment based on the respondent’s stated income in accordance with the Child Support Guidelines and the applicant’s stated income should it be greater than the imputed amount.

Schedule C

TOTAL VALUE OF ASSETS OWNED ON VALUATION DATE (VD)

Assets

Ms. Cipriano

Mr. Hampton

RRSPs

$17,137.00

$12,627.00

Bank Accounts

$2,500.00

$614.11

Pension

$74,811.00

Funds from Sale of Matrimonial Home (MH)

$19,076.46

$19,076.46

Advance on funds from MH

$19,400.00

Engagement Ring

$3,000.00

Chattel

$5,751.18

$4,328.00

Total: Value of Property Owned on VD

$66,864.64

$111,456.57

TOTAL VALUE OF DEBTS & LIABILITIES ON VD

Credit Card Charges

$2,891.32

Mortgage (cleared by sale of MH)

$0.00

Line of Credit (cleared by sale of MH)

$0.00

Pension Assessments

$1,030.00

Notional Disposition Cost/Tax Liability on RRSP

$2,913.29

$5,150.46

Total: Value of Debts & Liabilities

$2,913.29

$9,071.78

NET VALUE OF PROPERTY OWNED ON VD

$63,951.35

$102,384.79

NET VALUE OF PROPERTY (other than MH) & Debts on Marriage Date (MD)

Engagement Ring

$3,000.00

Wedding Band

$300.00

$300.00

Suitcase full of Clothes

$300.00

Chattel

$2,400.00

RRSP Less Notional Disposition Cost of 17%

$8,319.14

Bank Account

$3,218.88

NET VALUE OF PROPERTY ON MD LESS DEBTS AND LIABILITIES

$3,600.00

$13,938.02

NET FAMILY PROPERTY

$60,351.35

$88,446.77

The Difference between the NFP of Ms. Cipriano and Mr. Hampton is

$28,095.41

The equalization payment that must be made by Mr. Hampton to Ms. Cipriano is therefore

$14,047.71