SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-14-81279-00
DATE: 2015-09-24
RE: LESLIE ANN SMITH v. BRUCE SMITH
BEFORE: LEMON J.
COUNSEL: S. Majic, Counsel for the Applicant
J. K. Heersche, Counsel for the Respondent
HEARD: August 27, 2015
ENDORSEMENT
The Issue
[1] The conference judge placed this matter on the regular motions list; the parties had only one hour to present their submissions. The materials in support of and in response to each motion fill up a bankers box. I therefore heard what the parties wished to say in their allotted time and reserved to review the materials.
[2] The issues are, in brief and in no particular order, imputing income, retroactive and ongoing child support, retroactive and ongoing spousal support, interim equalization payments, disclosure, sale of the home, occupation rent, exclusive possession and third party orders.
[3] The following is my endorsement with respect to all of their various requests.
Background
[4] The parties were married August 1, 1997 and separated in either June of 2014 (Ms. Smith’s position) or June of 2013 (Mr. Smith’s position). The date of separation is a matter to be left for trial.
[5] They have one daughter, O, who is almost 17 years of age. She resides with Mr. Smith.
[6] The case has been conferenced for some time. Since the application was commenced in July of 2014, those conferences have been held January 27, May 27, June 18, July 6 and July 10, 2015. On July 10, 2015, a consent order set out that the parties would exchange Affidavits of Documents by August 31, 2015, that Ms. Smith would serve her expert’s report by August 31, 2015 and Mr. Smith would serve his expert’s report by September 30, 2015. Questioning would be completed by October 31, 2015. A Trial Management Conference is set for November 2015. The matter is to be tried on the January 2016 trial sittings.
Sale of the Matrimonial Home
[7] Mr. Smith seeks an order that the matrimonial home be listed and sold. He submits that Ms. Smith has been in the home alone since June of 2014. There is no dispute that O went with him at that time.
[8] He submits that the equalization payment is clear; Ms. Smith is in the home and also in control of approximately $122,000 in cash. In addition, she has a substantial teacher’s pension. He has a company but it was up and running on the date of marriage.
[9] Ms. Smith has not filed her own affidavit in response to this motion. Indeed, she has filed no affidavit in response to any of the issues in this proceeding. The only responding affidavits have been hearsay or double hearsay from Ms. Smith’s counsel’s clerks. In those affidavits, there is no mention of this request. Without any responding affidavit, it would be rather straightforward to make this order, however I decline to do so for three reasons:
Because of time constraints, Ms. Smith’s counsel was not able to provide oral argument on this point.
Mr. Smith has a substantial interest in his own business. It appears that the value of that business is in issue. Accordingly, the determination of the equalization payment is not quite so clear
The trial date is sufficiently near that waiting from August to January is not unreasonable.
[10] At the end of submissions and before I had an opportunity to review the file at length, I made it clear to the parties that they should prepare to sell the house. While those were my views at that time, I reserved on all issues. From the materials that I have, there is little doubt that the house will have to be sold and a substantial equalization payment will need to be paid by Ms. Smith. The sooner the parties get on with the sale of the home, the better it will be for them. Further, the more they dispute this issue the higher the legal costs will be and the loser will, no doubt, pay even more. However, the materials are not so clear that I should make that determination on an interim basis.
Child Support
[11] Mr. Smith seeks an order that Ms. Smith pay child support in the amount of $825 per month based on her income of $93,000 per year. He seeks that order retroactive to June 23, 2014.
[12] There was a dispute as to whether O resided with one or the other. Mr. Smith says in his affidavit that O has been with him since June of 2014. Ms. Smith’s law clerk says that Ms. Smith disputes that. An assessment was carried out at the request of the conference judge and on consent of the parties. That report sets out that Ms. Smith advised the assessor that O stayed with her father for four months after the initial separation. Then, in November of 2014, they commenced a weekly schedule of access with two overnights per week. Finally, in January of 2015, Ms. Smith recalled that O spent a lot of time at her home as she wanted a quiet place to study. She also stated that as of June 28, 2015 she saw O on Sunday mornings, Mondays and Tuesdays overnight and Wednesdays before O attends her activities.
[13] Ms. Smith filed an objection to this report – or, at least, Ms. Smith’s law clerk says that she did. Letters have been filed setting out what Ms. Smith’s counsel says that Ms. Smith said to the assessor. The assessor disputes that. Regardless, on Ms. Smith’s statements as described by her lawyer and law clerk, O has been residing with Mr. Smith since separation and has continued to do so.
[14] It was conceded in argument that the correct amount of support is $829 per month. Indeed, Ms. Smith has been paying that amount since July 2015. Ms. Smith’s income is clear. The residence of the child is clear. Child support and its arrears shall therefore follow.
[15] Ms. Smith shall therefore pay support for O based on $93,000 per year commencing July 1, 2014 and forward to trial. She shall be given credit for any child support that she has paid since July 2015. This order shall be without prejudice to the trial judge making any further order on a full record.
Occupation Rent
[16] Mr. Smith submits that since Ms. Smith has been in the house since June 23, 2014, she should be paying occupation rent of $1,600 per month until the home is sold. He acknowledges, however, that this is an issue that should be traversed to trial and I so order.
Vehicle Lease Payments
[17] Mr. Smith submits that Ms. Smith has been using one of his company vehicles from the date of separation to today’s date. The lease payment on that vehicle is $739.36. His company has been making that payment. Again, he submits that this should be traversed to trial. The evidence is clear and, without a responding affidavit, undisputed on the facts set out above. Given that, I would normally grant the order; however, if Mr. Smith wishes it traversed to trial, I shall do so.
Interim Equalization
[18] As set out above, Mr. Smith submits that Ms. Smith has $122,000 in cash and is residing in the house. Although he has his company, he owned it on the date of marriage and she has a responding entry for her teacher’s pension. He submits that he should receive $61,000 from the cash account to level the playing field with respect to his legal bills. The house has been appraised at between $750,000 and $800,000 and is mortgage free.
[19] There is no response from Ms. Smith; no contrary NFP is filed.
[20] Again, this is rather straightforward. Ms. Smith wants to stay in the house. She will be required to make a payment far in excess of the amount requested. Mr. Smith has set out that he needs the funds for his legal expense and Ms. Smith does not deny that. Ms. Smith shall pay $61,000 to Mr. Smith within 30 days and she shall be credited with that amount in the final calculation of the equalization payment.
[21] Ms. Smith has provided her own Notice of Motion with a number of items.
Imputation of Income
[22] Ms. Smith submits that Mr. Smith has an income of between $214,000 and $240,000. She submits that he has been income splitting with his daughter and has run a variety of personal expenses through his business. She says that he has been retaining corporate dividends that should be included in his income.
[23] Mr. Smith’s accountant has provided a report that says that he makes approximately $175,000. In submission, Mr. Smith acknowledges that the personal expenses paid by the business bring his income to over $210,000 per year but that there is no evidence otherwise.
[24] On an interim basis, the court should be loath to impute income without a substantial evidentiary basis. Again, with the trial so close, I am not persuaded that Mr. Smith makes more than $210,000 per year. The issue of imputation of income is traversed to the trial.
Spousal Support
[25] Ms. Smith seeks spousal support in the amount of $2,420 per month based on the income that she wishes imputed.
[26] In response, Mr. Smith submits that there is an initial hurdle by Ms. Smith to show an entitlement to spousal support. He says that she has not been affected by the marriage and has no need of support.
[27] This issue should be left to trial as well. On the material provided by Mr. Smith, and again, not denied by Ms. Smith, there is a real issue as to entitlement to support.
[28] Further, any spousal support appears to be offset by apparently strong claims to occupation rent and a re-payment of the motor vehicle lease payments. Interim support is intended to solve pressing financial requirements pending trial. Ms. Smith does not have any significant financial requirements at the present time and the trial is not far off. This claim is dismissed.
Third Party Orders
[29] Ms. Smith requested orders relating to the section 30 assessor and Mr. Smith’s business partner. Those motions were not served on those third parties and accordingly no order can be made. Those motions are dismissed.
Life Insurance Policy
[30] Although the Notice of Motion requested an order that Mr. Smith obtain a life insurance policy in the amount of one million dollars, nothing was filed in support of that request. The parties’ child resides with Mr. Smith. Ms. Smith’s claim for spousal support is in issue. There is nothing that suggests that such an order should be made. That claim is dismissed.
Restraining Order
[31] Again, although this was requested, no affidavit material was filed in support. This claim is dismissed.
Exclusive Possession
[32] Ms. Smith seeks an order for exclusive possession of the matrimonial home. That has been the circumstance since Mr. Smith was charged with assault upon Ms. Smith on June 23, 2014. Although those charges were eventually dropped, he is now on a peace bond prohibiting him from being within 100 metres of the matrimonial home. The child of the parties resides with Mr. Smith. In those circumstances, the order is unnecessary and the motion is dismissed.
Interim Expenses
[33] Although Ms. Smith sought an order for interim expenses, no supporting material was provided. Given her financial circumstances, this request was unlikely to succeed. Accordingly, it too is dismissed.
Productions
[34] Ms. Smith’s biggest interest in this motion is for further productions from Mr. Smith. She says that his disclosure has not been completed; what productions have been made, have been late. She has included a letter from her evaluator, dated August 25, 2015, that sets out the information that is still required. Again, this history is set out by Ms. Smith’s lawyer’s law clerk relying mostly on hearsay. The materials initially filed in support of the motion only set out the state of productions as of June 16, 2015 in an affidavit sworn July 24.
[35] In response, Mr. Smith sets out in his responding affidavit that he has been in full compliance throughout. He says that if he has not produced the information requested by Ms. Smith, it is because he does not have it to produce. He has provided an unlimited direction, at his cost, with respect to Bank of Montreal accounts; she can therefore get whatever documents she needs.
[36] Ms. Smith’s counsel provided a reply affidavit the day before the motion. The timing of that filing appears to breach the conference judge’s time lines. Mr. Smith’s counsel disputed that the filing was admissible; however, in my view, it is a reply affidavit and was admissible. It was, however, filed late and improperly served. On August 25, Ms. Smith’s counsel faxed only the first seven pages of a substantial document. Only one of 11 exhibits was in fact faxed. With respect to that one exhibit, only the first page of Ms. Smith’s expert’s request dated August 25 was received. That letter of request is seven pages long.
[37] From my review of the materials filed in support of this aspect of the motion, it appears that both parties have been chastised by the conference judge to move along with their productions, their co-operation and their civility. This late filing does not assist with those directions.
[38] In effect, Ms. Smith seeks an order striking Mr. Smith’s pleadings for failure to provide documents first requested on August 25. That is simply a waste of court time. Whatever the state of the productions, Mr. Smith has not been given a chance to respond to this late filing.
[39] As of the date of the motion, there were still ordered deadlines to follow relating to affidavits of documents, experts’ reports and questioning. What little documentation may still be outstanding can be dealt with through that process and, if not, at the trial management conference.
Costs
[40] If the parties cannot agree on costs, written submissions shall be made to me. If necessary, Mr. Smith shall provide his submissions within the next 15 days and Ms. Smith shall provide her responding material within 15 days thereafter. Each submission shall be no more than three pages in length, not including any offers to settle of bills of costs.
Lemon J
DATE: September 24, 2015
COURT FILE NO.: FS-14-81279-00
DATE: 2015-09-24
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: LESLIE ANN SMITH v. BRUCE SMITH
BEFORE: LEMON J.
COUNSEL:S. Majic, Counsel for the Applicant
J. K. Heersche, Counsel for the Respondent
ENDORSEMENT
LEMON J.
DATE: September 24, 2015