ONTARIO SUPERIOR COURT OF JUSTICE

OSHAWA COURT FILE NO.: FC-14-1482

DATE: 20151110

BETWEEN

Geralyn Ann Howell

Applicant

— and —

William James Wignall

Respondent

COUNSEL:

Kerry Lynne Thomason for the applicant

Judith M. Nicoll for the respondent

HEARD: October 22, 2015

Timms J.

ENDORSEMENT

[1] There are occasions when the best decision is to simply “leave things well enough alone”. This is one such occasion.

[2] The applicant brought a motion seeking 15 substantive heads of relief. Had the motion proceeded on all of them, it would have required a hearing of at least three hours. As it was it took almost two hours, even after I limited the argument to four matters. Those four issues were

• the quantum of child support

• the quantum of spousal support

• whether the court should order “an income analysis [of the respondent’s income] by a forensic accounting professional, to be conducted by a certified valuator to be chosen by the applicant, for the years 2012, 2013, and 2014”

• whether there should be a preservation order against the respondent preventing him from depleting assets of various kinds.

[3] In passing I should note that I neglected to adjourn the remainder of the motion. I am content to do so, either to a date to be set by the trial coordinator or to a specific date as counsel may wish.

[4] The respondent is the CEO of Sangoma Technologies Corporation (Sangoma), a publicly traded company. He receives a base salary of $300,000.00 per annum. In 2014, the respondent had his base salary of $300,000.00 from Sangoma, plus his bonus of $50,000.00. He had employment income from the University of Toronto, employment income from the Ivy School of Business, and employment income from MaRS. All of that came to $445,966.23. He also had taxable dividends of $17,296.95, interest and other investment income of $7,109.99, and taxable capital gains of $18,724.59. Putting all of that together, and deducting a small loss on partnership income, the respondent’s 2014 line 150 income was $486,341.99.

[5] The respondent continues to receive a base salary of $300,000.00. He may or may not receive the entire 2014 deferred bonus of $100,000.00. In his last affidavit filed, the respondent said that he had not been paid any bonus this year. There is no evidence to contradict that. The respondent had some significant health problems this year, and as a result has not had additional T4 income, with the exception of $16,000.00 that he is being paid for teaching at the University of Toronto from this September to next January. His counsel submitted that only $12,000.00 of that should be attributed to the current year. That is a reasonable position to take. Sometime this year, the respondent sold his shares in a privately held company called Averna for $45,000.00. There was no evidence as to how much of that would be taxable capital gains. The respondent is not seeking any reduction in his income to be considered for support purposes relating to lost partnership income, exploration and development charges, or carrying costs, which he took in 2014.

[6] In sum, counsel for the respondent submitted that the court should, when determining both spousal and child support on an ongoing basis, consider that the respondent will have an income of $312,000.00 this year. Any amount that the respondent later receives by way of bonus, and any taxable capital gains arising out of the sale of his shares in Averna, can be added in later to “top up” both child and spousal support.

[7] Counsel for the applicant appeared to argue that since the respondent earned much more money in past years, he should be deemed to be earning close to $500,000.00 this year.

[8] The respondent owns a company called Wogent Inc. (Wogent). That company was set up to receive non-employment income, and was used by the parties as a family income splitting device. The respondent’s evidence is that the company is no longer active and that it has no assets of any kind. There was no evidence to contradict that.

[9] Indeed, there is no credible evidence to support the proposition that for 2015 the respondent has any income beyond his basic salary and from his teaching at the University of Toronto. I will therefore use the amount of $312,000.00 for the purposes of determining ongoing child and spousal support.

[10] I am dismissing the applicant’s motion for an order requiring the respondent to have a forensic analysis of his income performed, and for a preservation order. There is no evidentiary basis for either order.

[11] The respondent’s financial affairs are not that complicated. Most of his income comes from his salaried position at Sangoma. The facts of this case are in no way comparable to the cases cited by counsel for the applicant: Korkola v. Korkola,[1] Blaney v. Blaney,[2] and Ritchie v. Ritchie.[3] If there are questions relating to Wogent or any other possible source of income for the respondent, then answers to those questions can be more reasonably and economically obtained by proper disclosure, and if necessary, by questioning. It would be over-kill in the extreme to order an income analysis.

[12] Although counsel for the applicant included a case dealing with preservation orders in her brief of authorities, she did not as such spend any time exploring how that case might be relevant to the instant case.[4] Likewise, counsel did not specifically cite section 12 of the Family Law Act (FLA). I have read the Barbini decision. With respect to my colleague, I do not agree that the test under section 12 of the FLA is “out of an abundance of caution”. Rather, it is whether there is an evidence of a risk that the moving party’s right to receive the appropriate equalisation payment will be defeated if the order is not made.

[13] In this case there are no facts to justify a preservation order against the respondent. The only possible justification might relate to the actions of both parties with respect to their joint line of credit. The parties separated on July 13, 2013. On November 29th of that year, the respondent drew $100,000.00 from the joint line of credit in order to buy shares. On February 4, 2014, the applicant withdrew $150,000.00, because, to use her own words, she “anticipated at some point the Respondent would use financial pressure to force [her] to comply with what he wants”. As per the applicant’s financial statement of August 25, 2014, the $150,000.00 was deposited into a GIC at TD Canada Trust.

[14] When the parties separated, they both had considerable assets, many of which could be considered liquid. They have a joint interest in the matrimonial home. They also own a cottage, which is solely in the applicant’s name; however, she admits that the cottage is a matrimonial home, and that the respondent has a joint beneficial interest in it. Those assets together have a gross worth of at least three million dollars. Should either party dispose of assets such that it would be difficult to effect an equalisation payment, any amount owing could readily come from the equity in the two matrimonial homes.

[15] The respondent filed a financial statement dated October 22, 2014. A clerk in his lawyer’s office has updated that financial statement twice. Whatever changes have occurred have not substantially changed the respondent’s financial circumstances to the extent that a preservation order would be justified.

[16] The applicant filed a financial statement dated August 25, 2014. On three separate occasions an employee in her lawyer’s office has filed an affidavit updating that financial statement. It would have been far better had the applicant filed a complete new financial statement. I say that because although there are suggestions that the applicant’s investment income has decreased, nothing was ever directly said about how exactly the applicant’s income had changed.[5] Therefore, for the purposes of calculating child and spousal support, I am compelled to use the figures in the above financial statement.

[17] There is a temporary child support order for $3,076.00 a month, made on consent and without prejudice, on April 15, 2015. There is no current order for spousal support, although there was a one-time payment of $20,000.00 to be accounted for later, and the respondent has been paying certain household related expenses. The whole question of whether and in what amount retroactive child or spousal support is owed is best left for either resolution or trial. Using the figure of $312,000.00 for the respondent’s income, basic table child support is set at $2,462.00 per month, effective November 1, 2015.

[18] I am attaching a DivorceMate printout. In all of the circumstances of this case, including that there is no adjustment for the fact that the respondent’s income exceeds $150,000.00 per annum, and the high amount of section 7 expenses, I am ordering spousal support at the low end of the Spousal Support Advisory Guidelines. That results in a 50/50 NDI and makes the respondent’s share of section 7 expenses 67.6 percent. As I understood it, the current academic school year’s fees have been paid by the respondent.

[19] I should note that neither counsel attempted to do any Fisher type analysis.[6]

[20] Each party is to pay that portion of the interest on the line of credit that corresponds to the amount borrowed by her or him.

[21] Counsel for the applicant may serve and file cost submissions, restricted to five pages, exclusive of a bill of costs, by forwarding same to my secretary within ten days of the release of this judgment. Counsel for the respondent may serve and file their response, restricted to five pages, within seven days thereafter and counsel for the applicant may serve and file their reply, restricted to five pages, within four days thereafter.

The Honourable Mr. Justice D.R. Timms

DATE RELEASED: November 10, 2015

[1] 2009 2487, [2009] O.J. No. 343.

[2] 2012 ONSC 1777, [2012] O.J. No. 1487.

[3] 2015 ONSC 3860, [2015] O.J. No. 3113.

[4] Barbini v. Edwards 2014 ONSC 6762, 2014 O.N.S.C 6762.

[5] Just as importantly, the affidavits were not all that clear as to how any changes had affected the bottom line regarding assets.

[6] 2008 ONCA 11, 88 O.R. (3d) 241.