ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: D-1195-09
DATE: 2015-09-15
BETWEEN:
Carrie Lynn Gordon
Self-Represented
Applicant
- and -
Scott Richard Grady
Self-Represented
Respondent
HEARD: August 7, 2015
The Honourable Mr. Justice R. J. Mazza
[1] This is a motion to change brought by the Respondent, Scott Grady, for a termination of spousal support as of January 1, 2013. There is also a request to limit payment of any arrears to $200.00 per month, and a request for financial disclosure. As I understand it, those last two claims are not contested.
[2] The Applicant in the cross-motion, Carrie Gordon, is seeking an increase in spousal support and a change to the amount of child support based on what she submitted is the increase in Mr. Grady’s income.
[3] Although this was a motion to change, Justice Chappel ordered the parties to present viva voce evidence.
Background
[4] The original order of Justice Brown, which took effect on January 1, 2010, fixed spousal support at $1,200.00 per month commencing January 1, 2010, based on Mr. Grady’s gross annual income of $89,556.00 and Ms. Gordon’s annual income of $22,000.00 at the time.
[5] Prior to the order of Justice Brown, the parties who had been married for 18 years prior to separation, entered into Minutes of Settlement on October 2010 whereby Mr. Grady was also to pay child support biweekly in the amount of $330.93, or monthly in the amount of $717.00 commencing January 1, 2010, based on his income of $79,626.00 as of 2009.
[6] Mr. Grady once again brought a motion to change before Justice Gordon to reduce child support and terminate spousal support.
[7] Justice Gordon dismissed Mr. Grady’s claim to terminate spousal support and ordered that child support to be varied to of $721.00 per month and spousal support to be reduced to $450.00 per month as of January 1, 2013, based on Mr. Grady’s anticipated income for that year of $79,508.00.
[8] It was not disputed that Mr. Grady also incurred arrears of child support between the years of 2010 and 2012, inclusive, which I understand were fixed at a repayment of $200.00 per month. Mr. Grady continues to pay the child support and spousal support in the amended reduced amounts.
Testimony of Scott Grady
[9] Mr. Grady testified that he is currently residing with one Kimberley Miller, who is on disability and has two children. She currently has an annual income of $33,000.00.
[10] Mr. Grady earns $92,000.00 per year presently, which is divided between his base salary of $72,000.00, plus bonus, plus stock, the latter varying between $5,000.00 and $10,000.00 per year.
[11] As well, he receives health and dental benefits through his employment, the latter being 100%, as per schedule; 80% of the drug expense is also covered by the plan; and he receives $300.00 every two years for eye care.
[12] As well, he gets a disability benefit of 100% for 17 weeks; then 50% if the disability becomes permanent.
[13] He is seeking an order to terminate spousal support from the day Carrie Gordon moved in with her boyfriend, Mr. Hazen Simpson, which he testified, was on or about February 2, 2013.
[14] He also testified that Ms. Gordon has been elusive as to whether or not she was actually living with Mr. Simpson. He based this information on a conversation with his son, who advised him that Ms. Gordon was not living with their son at their residence at 595 Rymal Road.
[15] Mr. Simpson’s annual income according to Mr. Grady was $170,000.00, and even though he was on disability nevertheless was earning more than Mr. Grady.
[16] As well, he testified that Ms. Gordon received benefits under Mr. Simpson’s will, which included a mortgage-free home, the title of which was transferred to her name. He also believes that there is no reason why Ms. Gordon, who is currently working part-time, should not be working at a full-time job.
[17] He further testified that Ms. Gordon is no longer entitled to a non-compensatory claim since her pre-separation standard of living has been significantly improved by her current financial circumstances.
[18] As for child support for his son Jacob, he understands that Jacob is indefinite about pursing postsecondary education, although he appears to be interested in pursuing a particular course related to police work.
[19] However, Jacob has only made a deposit towards his tuition but has not paid any further tuition fees, which he states is an indication as to Jacob’s uncertainty as to whether or not he will attend college or join the military.
[20] Mr. Grady indicated on his financial statement that the total joint monthly expenses of him and his partner are $9,278.00 per month. He is responsible for $7,610.00 of that amount and his partner pays the balance. His financial contribution to the household consists of payment towards motor vehicle expenses, the mortgage and taxes, and vacation time.
[21] He further testified that although he owes Ms. Gordon an equalization payment of $4,500.00 pursuant to the minutes of settlement, he has been unable to make that payment because he is currently being garnisheed at the amount of $1,171.00 per month towards payment of any outstanding support arrears.
[22] Although he is not objecting to making a contribution towards his son’s education, he wishes his son to make a contribution from the $6,500.00 he received from damages from a motor vehicle accident claim, monies earned during the summer, and any monies he receives through his OSAP application.
[23] He further stated that although Ms. Gordon is currently a part-time employee with the Bank of Montreal, he is asking this court to impute an annual income to her of $50,000.00, and subsequently change the proportionate contribution percentage related to future extraordinary expenses.
[24] He does recall that although Ms. Gordon asked him to pay a camp fee of $1,800.00, the court advised that he was not obligated to make such a payment.
[25] On cross examination when asked about his stocks and his bonuses, he said he made a bonus of approximately $10,000.00.
[26] As for past extraordinary expenses, he does not recall receiving any invoices from Ms. Gordon, in spite of the fact that they appeared at Exhibits “R” and “S” of her affidavit.
Testimony of Carrie Grady
[27] Ms. Grady testified that originally she worked at the Bank of Montreal in Mississauga as a Customer Service Provider and as of 2010 she was earning $37,000.00 per year. She was in a relationship at the time but regrettably, her partner passed away and she subsequently transferred to Hamilton to alleviate both the stress of travel and to facilitate the administration of her deceased partner’s estate which included several meetings with the solicitors.
[28] She is currently employed in Hamilton at the Bank of Montreal branch located at Queenston and Parkdale as a part-time teller working at reduced hours of 32.5 hours per week and earning $34,000.00 per year. A full-time job would require her to work 37.5 hours per week but she admitted that due to her reduced responsibilities she was earning less income. Between November of 2013 and January of 2014 Ms. Gordon was paid short term disability which provided her with a payment of 100% of her wages while she was caring for Mr. Simpson.
[29] She met Mr. Simpson in 2010 and while she was principally living at 595 Rymal Road, it was in February of 2013 that she began residing with Mr. Simpson on weekends only. But other than that, she continued to live with Jacob from Monday to Friday.
[30] However, when Mr. Simpson was diagnosed with cancer in June of 2013, she took a leave of absence from her employment in November of 2013 to care for him until he passed away on January 3, 2014.
[31] Ms. Grady returned to work in February of 2014 and worked in Mississauga for a period of time and was then transferred back to Hamilton in May of 2014.
[32] On cross-examination she stated that in spite of the several leaves of absence which she, in fact, took, she was paid in full and admitted receiving pay raises between February 1, 2011 and April 2013 to a maximum of $37,000.00 before she transferred to Hamilton.
[33] She further admitted that from Mr. Simpson’s estate she received survivor benefits and the home which was transferred into her name. Regarding her son, Jacob, she stated that he transferred $5,500.00 to a TSFA account, which amount represents the principal portion of his accident settlement of $6,253.00.
[34] Her son’s additional income was $3,800.00, which he received as a security guard during the Pan American games; and he earned an additional amount of $600.00 between January and June 2015, and continues to work sporadically as a security guard.
Submissions of the Parties
[35] Mr. Grady is asking this court to terminate the non-compensatory claim for support as of February of 2013 or, at the very latest, December of 2013, the time which he alleges Ms. Grady moved in with Mr. Simpson. Furthermore, he is asking this court to impute income to Ms. Grady in the amount of $50,000.00 submitting that she, in fact, is underemployed and has chosen to take a part-time job over a full-time job.
[36] With respect to child support, he is asking this court to terminate child support or until it is verified that Jacob will be attending school. If the court is satisfied, he is prepared to pay the table amount based on his income of 2014.
[37] With regard to extraordinary expenses, he is asking this court to compel each party to pay their proportionate share of expenses based on his income from 2014 and imputed income to Ms. Grady at $50,000.00. Moreover, he is asking that the child contribute partially to his education from the amount he received from his settlement, as well as his wages which he earned in 2015 from the Pan Am games and his part-time employment.
[38] Ms. Gordon submitted that she wishes child support be retroactive to 2013 in the amount of $738.00 per month based on his 2013 income and $814.00 per month based on his income of 2014 and that the extraordinary expenses be proportioned at 69/31 with the total amount being $6,789.25 for 2013, receipts of which have been attached to Tabs R and S.
[39] With respect to spousal support for 2013, she is asking for 85% of the mid-point, which is $663.00; for 2014 she is asking for 85% of the mid-point less $540.00 which she is now receiving from CPP, thereby, fixing spousal support at $348.00 per month. She is fairly content that spousal support terminate as of 2019 as suggested by Justice Brown in her original judgment.
Analysis and Conclusion
Spousal Support
[40] This is Mr. Grady’s second attempt to terminate spousal support and this time it is on the basis that Ms. Gordon was permanently residing with her now deceased partner, one Mr. Simpson.
[41] In my review of the evidence, including testimony of both parties, I am satisfied, firstly, that it has not been established on the balance of probabilities that Ms. Gordon was permanently residing with Mr. Simpson since Justice Gordon’s order except for November and December of 2013. And although she did reside with Mr. Simpson on weekends and then full time for two months before his death, I find that any benefits which she may have received as a result of this temporary residence with Mr. Simpson was modest, and in my opinion does not amount to a material change of circumstances which would warrant a termination of spousal support.
[42] I also find that due to extenuating circumstances, namely Mr. Simpson’s terminal illness, Ms. Gordon was obliged to transfer from Mississauga to Hamilton in order to care for Mr. Simpson and to deal with matters relating to his estate. I, therefore, find Ms. Grady’s decision to transfer to Hamilton was reasonable in the circumstances.
[43] As for what should be the appropriate amount of spousal support in the circumstances, despite Mr. Grady’s increase in his annual income since the order of Justice Gordon, I find that given Justice Gordon’s order was dated July of 2013, I find that Mr. Grady should benefit from the terms of that order for the entire year. Any adjustment in spousal support, therefore, should begin in 2014.
[44] In 2014 Mr. Grady’s income was $91,579.27. The midway amount of support as suggested by the Spousal Support Advisory Guidelines is $1,044.00 (not $1,070.00 as set out in paragraph 4 of Ms. Gordon’s affidavit of June 26, 2015) which brings the amount to $887.40. She is requesting a further reduction of $540.00 which represents her CPP from the midpoint amount of spousal support, that would reduce spousal support to $348.00 per month.
[45] Due to the fact that Mr. Grady is currently paying $450.00 per month as per the order of Justice Gordon and in view of the fact that a portion of the equalization payment payable by Mr. Grady remains outstanding, the amended amount of spousal support of $348.00 payable to Ms. Gordon will not take effect until January 1, 2016. Mr. Grady will be given no credit for any overpayment to that point. Moreover, unless there is a material change of circumstances, spousal support will terminate on December 31, 2019, as suggested by Justice Brown.
[46] In my computation of spousal support, I have also reviewed the parties’ respective financial statements. I have also taken into account that Ms. Grady had the benefit of residing in her current home, which was transferred into her name without her being required to make any financial contribution.
[47] With respect to child support, child support will be increased to the amount of $814.00 per month based on Mr. Grady’s 2014 income of $91,579.00 as of January 1, 2014. Mr. Grady is to be given credit for payments already made over that period of time and is to only pay the difference between the amount ordered by Justice Gordon and the current amount of $814.00 per month. The arrears are to be paid at $50.00 per month until all arrears are satisfied.
[48] Regarding extraordinary expenses, I am satisfied that the invoices forwarded by Ms. Gordon to Mr. Grady, although Mr. Grady testified he did not receive those receipts, I find he had the obligation to at least enquire about any extraordinary expenses his son might have incurred.
[49] I have reviewed invoices at Exhibits R, S and T of Ms. Grady’s affidavit. Exhibits S and T appear to be a duplicate and in my calculation of those extraordinary expenses for Jacob regarding his attendance at Mohawk College, which was confirmed by Ms. Gordon, are $2,216.62 including an expense of $186.41 for Jacob’s uniform. I am satisfied that Mr. Grady does have an obligation to make a contribution towards those extraordinary expenses.
[50] Further, for purposes of extraordinary expenses, Mr. Grady is asking this court to impute an income of $50,000.00 to Ms. Gordon on the basis that she deliberately reduced her annual wage from $37,000.00 to $34,000.00 when she moved from Mississauga to Hamilton, accepting a lower paying job, accepting a part-time position over her previous full-time position.
[51] In view of the fact that I find that Ms. Gordon’s decision to move to Hamilton and a lesser-paying job was reasonable, given the extenuating circumstances of the illness of her deceased partner, I do not intend to impute the amount of $50,000.00 to Ms. Gordon. However, I do note that that for 2014 Ms. Gordon’s annual income was $39,049.00 and Mr. Grady’s income was $91,579.27. Therefore, Mr. Grady’s portion of the share of expenses will be 58% and Ms. Gordon’s portion will be 42%. That percentage will remain in place until September 1, 2016.
[52] The parties are to exchange their income tax returns and notice of assessment by June 30th of each year, and the proportionate percentage of the parties’ respective contribution is to be adjusted on September 1, 2016, and September 1st of every future year until Jacob has completed his education from Mohawk College.
[53] If Jacob is approved for an OSAP loan of not less than $3,000.00, he will contribute $1,000.00 each year of his attendance at Mohawk College. Of course, Mr. Grady and Ms. Gordon are to pay the balance of those expenses. Mr. Grady’s obligation to pay towards extraordinary expenses will be restricted to tuition and any fees for books and uniforms.
[54] Ms. Gordon is to provide Mr. Grady with all receipts related to the above expenses within thirty days of incurring such an expense. Mr. Grady will be given sixty days in which to make payment of those expenses.
[55] Accordingly, Mr. Grady’s motion to terminate spousal support is dismissed, and Ms. Gordon’s cross-motion to vary child support is granted.
[56] If the parties require any further explanation or clarification of my order which does not include providing additional evidence, however, I may be spoken to.
[57] If the parties cannot agree on the issue of costs, they may provide me with written submissions after exchanging a copy of their submissions with each other by no later than 45 days from the date of this endorsement.
Mazza, J.
Released: September 15, 2015
COURT FILE NO.: D-1195-09
DATE: 2015-09-15
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Carrie Lynn Gordon
Applicant
- and -
Scott Richard Grady
Respondent
REASONS FOR JUDGMENT
Mazza, J.
Released: September 15, 2015