COURT FILE AND PARTIES

COURT FILE NO.: 15D-0008

DATE: 2015-10-29

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: William James Hutton, Applicant.

AND:

Cynthia Anne Hutton, Respondent.

BEFORE: Honourable Justice Timothy Ray.

COUNSEL:
Caroline E. Kelly, Counsel, for the Applicant.

Virginia G. Ollerhead, Counsel, for the Respondent.

HEARD: October 28, 2015

ENDORSEMENT

[1] The respondent’s motion is for interim spousal support secured with a life insurance policy. The applicant has been voluntarily paying $3,000.00 per month without an order with a current annual income of $199,200. Once an order is made the tax benefit will accrue primarily to the applicant.

[2] The parties are encouraged to move on with this matter as quickly as possible so as to resolve the outstanding issues- the applicant’s OMERS pension valued at $1,000,000, and the disposition of the matrimonial home. Aside from spousal support, these appear to be the outstanding issues. They are not complicated and should be resolved without delay.

[3] The parties separated in 2011 after a 26 year marriage. They are 51 and 55 respectively. They were both present in court with their counsel.

[4] The respondent is not employed, and claims she cannot work because she has spent her entire married life as a stay at home mother, has only high school education, and has no skills that would make her employable. There is no evidence that she has sought employment over the four year separation period. The only evidence she has submitted is a letter from a therapist giving an opinion that she cannot seek employment. There is no foundation for the opinion and no basis for the author to give opinion evidence. I am not prepared to give any weight to it. The respondent resides in the jointly owned matrimonial home and pays expenses in the amount of $1100 per month.

[5] The respondent’s position is that the applicant should pay $7200 per month being the mid-point of the SSAG without regard to the mandatory OMERS payment, the payment to the daughter, and no income should be imputed to the respondent. She contends that life insurance in the amount of $600,000 should be ordered to secure the spousal support. The respondent contends that the interim support order should be made retroactive to January 8, 2015, being the date of the application.

[6] The applicant is the County administrator and currently earns $199,200. Last year he earned $206,165. The reduced income is on the basis that last year it included a bonus that is not available this year. His income in 2010, the year prior to separation was $154,814.84. He had open heart surgery in August and continues to be off work. He claims to be unsure if he will return because of his medical condition. There is no evidence to suggest that he will not return to work full time. He takes the position that he may retire in 2017. I am not prepared to make assumptions on which there is no evidence. For the purpose of this interim spousal support motion, I assume his current income is $199,200 and that this will continue indefinitely. He apparently has apartment rental costs of $900 per month plus utilities for a total of $1239 per month, pays $4500 per annum to the parties’ daughter to assist her in school, and from his income has a mandatory pension deduction of some $27,400.

[7] The position of the applicant is that income should be attributed to the respondent in the amount of $24,200 – being the minimum wage to reflect the statutory obligation that she has a duty to obtain and maintain employment, that his mandatory OMERS payment should be taken into account to calculate his net disposable income, as should his $4500 per year to their daughter. The applicant says his interim order to pay spousal support should be in the $5000 to $5500 range. The applicant argues that by reason of the age of the parties and their future prospects $300,000 is the maximum amount of insurance that should be considered, particularly when he wants to ensure that the $300,000 balance is available for the three children. The applicant opposes a retroactive order on the ground that he has limited cash flow and that issue would best be left for the trial judge because of the respondent’s delay. Furthermore the applicant takes the position that the four year delay has resulted in the applicant with a higher income than at the time of the separation, and notes that the courts have acknowledged the unfairness by accepting a four year average from the year of the separation forward.[^1]

[8] It is not proper to conduct in depth examination of the evidence on an interim motion for spousal support. While I recognize that interim awards are often used as the basis of a final resolution, it is unfair for a motions judge who is limited to the submissions of counsel and unchallenged affidavit evidence to be expected to be as thorough as a trial judge who has the benefit of vive voce evidence, and considerably more time. That said, it is important that a motions judge make as fair an order as possible on the materials before him and not be drawn into speculation about future developments or evidence that might otherwise have been available. It is after all an interim order intended to do justice to the parties pending trial or final resolution.

[9] The respondent’s entitlement to spousal support is not in question. It is only quantum. The applicant’s income is $199,600. He pays $4500 per year for their daughter’s assistance in her schooling, and has a mandatory OMERS deduction of $27,400. After his tax liability he has significantly reduced net disposable income. I accept that the OMERS payment amounts to forced savings for his benefit but at the same time it is not right to deduct it when making the Divorce-Mate calculation as the applicant proposes. I must however take it into consideration.[^2] I am not prepared to consider that the applicant may not continue to work because of his health. There is no evidence to support that assertion.

[10] It is troubling that the respondent has made no attempts to rehabilitate herself. I cannot see a reasonable basis for her failure to get out into the workforce. It does speak to her failure to be able to move on with her life, although It is quite understandable that the break-up of this long term marriage may have had an emotional impact on her. However, there are minimum wage jobs available which would be a good start for her. On an interim basis I consider it reasonable to impute $12,000 per year income to her. She is clearly a highly intelligent woman, and very capable. Hopefully this will encourage her to explore the work force without incurring a financial penalty for so doing, and quickly move to more remunerative employment.

[11] The SSAG’s are an important guide to determining the fairness of a spousal support order. They are not to be ignored or seriously discounted without very good reason.[^3] I see no reason to depart from the guidelines in this case.

[12] The respondent’s position as noted in her Divorce-Mate calculation is low-$6,225, Mid-$7262, high-$8119. This calculation does not include earnings attributable to the respondent, and is based on the applicant’s income of $199,200. It does not recognize the applicants support for their child, but is the “adult children formula”. It notes the life insurance to be $650,000 for the mid-range. I note that this is based on a 10 year calculation and therefore of less value in the circumstances of this case given the ages of the parties, and the fact that the insurance is through the applicant’s employment. By contrast the applicant’s calculation which assumes the OMERS payment of $27,400, life insurance of $972 per year, and attribution of income to the respondent of $23,400 has the following ranges: low-$5494, mid$6409, high-$7325.

[13] Having regard to the calculations submitted by the parties, I accept the mid-range of $7600 as the appropriate starting point. After taking into account the applicant’s assistance for the parties’ child, the costs of the life insurance to secure the spousal support order, and imputing income to the respondent of $12,000 per year, I consider that $6,400 is a fair and reasonable amount for interim spousal support. In addition, I order that the applicant secure the spousal support payments with life insurance naming the respondent as the beneficiary in the amount of $400,000.

[14] I am not prepared on this interim motion to order retroactivity. I have no doubt that that issue will be addressed at trial, and may better be resolved in the context of the overall property settlement.

[15] The respondent claims a number of disclosure items. Because of the length of argument, the respondent declined to ask that argument continue another day. Both counsel suggested that I deal with the period of disclosure being sought, and that otherwise that part of the motion be adjourned. I accept that. The respondent seeks detailed financial disclosure, bank accounts and credit card statements for the past 8 years- including 4 years pre-separation. The respondent says that failure to disclose is a cancer. Failure to approach family disputes in a proportionate fashion is a worse affliction. Disclosure for 2011, the year of separation is both reasonable and proportionate. To order otherwise becomes a witch hunt. While the applicant earns a good income, these are not wealthy people with unlimited resources. They have to date successfully raised and educated three children on one salary. The efforts of the parties would be better devoted to resolving the outstanding property issues.

[16] If the parties cannot agree on costs, they may make written submissions of two pages or less within 15 days and a further 5 days for reply from each.

Honourable Justice Timothy Ray

Date: October 29, 2015

[^1]: Fisher v Fisher, [2008] O.J. No. 38, 2008 ONCA 11

[^2]: Copping v Copping, 2014 ONSC 5076 @ paragraph 25

[^3]: Fisher v Fisher, note 1.