CITATION: Alexander v. Davidson, 2015 ONSC 4166
COURT FILE NO.: FC-14-980
DATE: 2015/06/29
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MARK ALEXANDER, Applicant
AND
ANN DAVIDSON, Respondent
BEFORE: Madam Justice Adriana Doyle
COUNSEL: Paul Jakubiak, Counsel for the Applicant
Earl Atnikov, Counsel for the Respondent
HEARD: June 22, 2015 in Ottawa
ENDORSEMENT
[1] This is a motion by the Applicant (“Mr. Alexander”) for a variation of Justice Maranger’s interim order dated July 25, 2014 which ordered him to pay spousal support in the amount of $1500 per month retroactive to May 25, 2014. He submits that there has been a material change of circumstances as his employment ended with Commercial Tire in September 2014 and at Pro Tire in November 2014 and despite efforts to find alternative employment, his sole source of income at this time is Employment Insurance income (“EI”) of $25,064 per annum. He requests an order that he pay spousal support in the mid‑range of $640 per month.
[2] The Respondent (“Ms. Davidson”) objects to this motion and is requesting summary judgment for the transfer of the Honda Civic vehicle.
[3] On consent, the Court orders that Mr. Alexander will provide proof that his life insurance policy with Sun Life in the amount of $150,000 designating Ms. Davidson as irrevocable beneficiary is in full force and effect.
[4] For reasons set out below, the Court varies the order of Justice Maranger so that commencing July 25, 2015 Mr. Alexander will pay spousal support in the amount of $640 per month. The retroactive issue of spousal support will be addressed at trial.
[5] Also, commencing August 1, 2015, Mr. Alexander will provide evidence on a monthly basis of the job applications he has submitted with details of the applications and whether he received an acknowledgement or an interview. Within 15 days of obtaining employment, he will provide Ms. Davidson with the employment contract and/or details of his remuneration, benefits and job description.
[6] Ms. Davidson’s motion for summary judgment for the transfer of the Honda Civic is dismissed.
Background
[7] The parties commenced cohabiting in 1989 and separated in January 2014. Mr. Alexander is 57 years old and has been unemployed since November 2014. Ms. Davidson is 52 years old and has not worked since 2003. There are no children of the relationship.
[8] Justice Maranger’s order provided for an imputation of Ms. Davidson’s income of $7500 per year and determined Mr. Alexander’s income to be $56,000 to $58,000 per year.
[9] Mr. Alexander has worked with Commercial Tire for 15 years and due to downsizing, in September 2014, he was advised that his position with his employer was no longer available and that he was offered a warehouse coordinator position earning $15.50 per hour. Mr. Alexander did not accept this alternate position and a departure agreement was executed with no severance pay or benefits.
[10] He obtained a job with Pro Tire with a higher paying salary at $38,000 per year. Two months later, he was laid off. Mr. Alexander indicates that there had been downsizing across the auto industry.
[11] He is currently receiving employment insurance benefits and has not worked since November 2014. His current income is $964 every two weeks and his current annual income is $25,064 per year.
[12] Mr. Alexander continued to make payments pursuant to Justice Maranger’s order. In 2014, as a result of the loss of his employment, he cashed RRSPs in the amount of $20,173.
[13] Mr. Alexander has provided evidence that he has applied to numerous positions and his scope of employment efforts span a wide geographic distance within the Ottawa Valley.
[14] In order to meet his financial commitments, Mr. Alexander indicates that he borrowed $40,000 and drew down from his line of credit, which has doubled since separation from $21,500 as of January 27, 2014 to $45,000 in June 2015.
[15] Ms. Davidson lives in the matrimonial home, which is mortgage‑free and is currently listed for sale, and pursuant to Justice Maranger’s order, she is currently paying the carrying costs.
Mr. Alexander’s Position
[16] He is requesting an immediate variation of Justice Maranger’s order for spousal support. The issue of retroactivity of spousal support can be dealt with at trial.
[17] He disputes Ms. Davidson’s attempt to vary the order regarding the imputation of income to her as there was no notice that this issue would be raised.
[18] Regarding the request for the transfer of the vehicle, Mr. Alexander disputes that he is entitled to the vehicle and submits that this is a triable issue and that there is not enough evidence to order, on a summary judgment, the transfer of the vehicle to Ms. Davidson. In the alternative, he indicates that all the chattels were dealt with before Justice V.J. Mackinnon at the case conference.
Ms. Davidson’s Position
[19] Her position is that there has not been a material change of circumstances as:
His bank statements show he has available monies from various sources;
His financial statement does not accurately reflect his debts and accounts receivables;
He should have remained with Commercial Tire;
He is not making best efforts to find all possible employment; and
He has not provided full details of his job searches.
[20] Ms. Davidson alleges that Mr. Alexander has failed to provide details with respect to his job efforts, has not been vigorous in attempting to find work and has not been broad in scope in the geographic area, as she believes he actually spends time or lives in Cobden with his girlfriend. In addition she states that upon receiving his bank statements, she notes that there are recent deposits of four payments of $10,000 each and deposits of unexplained amount of approximately $20,000.
[21] She indicates that she should not be imputed $7500 per year as income, which was part of Justice Maranger’s Order. She indicates that she has made efforts but has been unable to find employment.
[22] The Honda Civic and Honda Accord vehicles are in Mr. Alexander’s name. There is a dispute as to whether Ms. Davidson has contributed to the purchase of the Honda Civic; however, I note that there is some evidence that she assisted in the down payment of the vehicle before the parties separated.
Analysis
[23] In order for a court to vary an interim order regarding spousal support, there must be a material change of circumstances.
[24] There are issues of credibility and determination of whether there are other sources of income from Mr. Alexander’s family or friends. Based on the evidence before me, it is clear that his only ongoing source of income is the unemployment insurance that he is currently receiving. He may have had assistance from others and drawn from his line of credit but based on the evidence before me, on the balance of probabilities, the sole ongoing source of income at this time is from EI.
[25] Pursuant to the Family Law Act[^1], section 34, the Court shall consider all circumstances of the parties, their current assets and means when determining support. On an interim basis, the Court must determine, based on the evidence, what is available on an ongoing basis until the matter is resolved or proceeds to trial.
[26] Based on the factors set out in the Family Law Act and Spousal Support Advisory Guidelines, the mid‑range of spousal support is reasonable in the circumstances. The support will not necessarily meet all her financial needs but both parties will be under some financial strain until there is a change of employment status and the funds from the sale of the matrimonial home are distributed.
[27] Therefore, based on the evidence before me, there will be a variation of Justice Maranger’s order. Spousal support will be payable in the amount of $640 per month, commencing July 25, 2015. The husband will provide evidence, on a monthly basis, of the application he has made for jobs, details of the job application positions and whether he received an acknowledgement or an interview. Within 15 days of obtaining employment, he will provide Ms. Davidson with the employment contract and/or details of his remuneration benefits and job.
[28] Regarding the imputation of income, there is no formal request by Ms. Davidson for change in the imputed income to her and therefore that request is dismissed.
[29] With respect to the transfer of the vehicle, in a summary judgment motion, I find that there is a triable issue. Given the evidence before me, I do not have a complete record of all the contributions made by both parties towards the Honda. This would include the deposit payment of the vehicle and ongoing expenses including insurance, maintenance, repairs and any ongoing payments. Therefore, this summary judgment motion for the transfer of the vehicle is dismissed.
[30] If the parties cannot agree on costs, Mr. Alexander will provide his one‑page summary using that by July 24, 2015 and Ms. Davidson will provide her response by August 14, 2015.
Madam Justice Adriana Doyle
Date: June 29, 2015
CITATION: Alexander v. Davidson, 2015 ONSC 4166
COURT FILE NO.: FC-14-980
DATE: 2015/06/29
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: MARK ALEXANDER, Applicant
AND
ANN DAVIDSON, Respondent
BEFORE: Madam Justice Adriana Doyle
COUNSEL: Paul Jakubiak, Counsel for the Applicant
Earl Atnikov, Counsel for the Respondent
ENDORSEMENT
Doyle J.
Released: June 29, 2015
[^1]: R.S.O. 1990, c. F.3.