SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

COURT FILE NO.: FD650/15

DATE: December 11, 2015

RE: Robert Glynn Thomas, Applicant

AND:

Heather Margaret Thomas, Respondent

BEFORE: JARVIS J.

COUNSEL:
Brenda D. Barr for the Applicant

Joanne G. Beasley for the Respondent

HEARD: December 9, 2015

ruling on motions

[1] The spousal parties in these proceedings began cohabiting in late December 1997 / early January 1998, were married on August 30, 1998 and separated on July 31, 2012. There are two children of their marriage, namely Patrick and Michael, who are now, respectively, 15 and 13 years old. The parents share custody of their sons.

[2] There are two motions before the court. The husband seeks an order for child and spousal support effective as of May 25, 2015, being the date on which these proceedings were commenced and Orders that the wife maintain her health benefits through her employment for himself and the children, as well as designating him as beneficiary of her life insurance for himself and the children as security for the performance of her support obligations.

[3] The wife has also brought a motion dealing with the issues of child and spousal support, health benefits and insurance coverage (the father, who is self-employed, does not have a health benefits package but does own life insurance).

[4] At the outset of argument, counsel advised that their clients had reached substantial agreement on most of the outstanding issues but that there remained the following issues for determination:

(1) each party’s qualifying income for support purposes; and

(2) the effective date when support should be payable.

[5] The husband is a self-employed engineer whose sole focus is, and has been, conducting reserve fund studies for condominium corporations. His average net annual income after taking into account allowable business deductions in the almost 18 years since the parties met is $31,925. However, for the period 2009-2014 (being the three years each before and after the date of the parties’ separation), his net income was $23,651. In 2013 and 2014, that income averaged about $27,500. In 2014, the amount was $27,438.

[6] The wife is a public health dietician for the local Health Unit. In addition, she has earned a modest income since 2013 as a consulting dietician for lawyers engaged in the personal injury field. Her line 150 income for 2014 was $72,952 which, adjusted for Schedule III Guideline professional dues, results in a qualifying support income of $71,997.

[7] Although ordered by Korpan J. on August 25, 2015 to provide a complete copy of her 2014 income tax return, including all supporting documentation, no such document was provided until after the parties’ questioning held November 5, 2015 and, even then, the wife only provided a summary of her return as available from Canada Revenue Agency. This failure to comply with the terms of Korpan J.’s order is pertinent because, in argument, the wife asked the court to add back to the husband’s assessed 2014 income certain otherwise allowable tax deductions which would have the effect of increasing his qualifying support income.

[8] The wife also asked that there be imputed income to the husband based on what she contended were insufficient efforts by him to pursue employment opportunities more aggressively. Given, though, the wife’s failure to produce a complete copy of her 2014 tax return, which would have included comparable Schedules to those of the husband with which to then assess what otherwise allowable tax deductions might be considered as augmenting her qualifying income for support purposes, I am not prepared to attribute additional income to the husband as proposed. There is also considerable conflicting affidavit evidence about the husband’s employment activity, particularly in the specialized area of work in which he has historically been engaged. Accordingly, and for the purposes of this Ruling, the husband’s income shall be $27,438 and the wife’s income will be $71,997.

Effective Date

[9] The husband commenced these proceedings on May 25, 2015. There is no dispute that, before these proceedings were commenced, the father’s lawyer wrote to the wife requesting payment of child and spousal support. When these requests were unanswered, this motion followed.

[10] In D.B.S. v. S.R.G., 2006 SCC 37, the Supreme Court of Canada dealt with the issue of the effective date of an award for, in that case, child support. In acknowledging that “child support is the right of the child and cannot be waived by the recipient parent”, the court held that, in that case, a retroactive (although in this case it may be more appropriate to use the term retrospective) award should be made. In determining the applicable date of effective notice, the court observed,

[120] Disputes surrounding retroactive child support will generally arise when informal attempts at determining the proper amount of support have failed. Yet, this does not mean that formal recourse to the judicial system should have been sought earlier. To the contrary, litigation can be costly and hostile, with the ultimate result being that fewer resources – both financial and emotional – are available to help the children when they need them most. If parents are to be encouraged to resolve child support matters efficiently, courts must ensure that parents are not penalized for treating judicial recourse as a last resort. Accordingly, the first two start dates for retroactive awards – i.e., the date of application to court and the date of formal notice – ought not be used. So long as the enforcement of child support obligations is triggered by formal legal measures, a perverse incentive is created for recipient parents to avoid the informal resolution of their disputes: MacNeal v. MacNeal (1993), 1993 9310 (ON SC), 50 R.F.L. (3d) 235 (Ont. Gen. Div.); Steinhuebl v. Steinhuebl, 1970 411 (ON CA), [1970] 2 O.R. 683 (Ont. C.A.). A recipient parent should not have to sacrifice his/her claim for support (or increased support) during the months when (s)he engages informal negotiation: Chrintz; see Dickie v. Dickie (2001), 2001 28140 (ON SC), 20 R.F.L. (5th) 343 (Ont. S.C.J.).

[121] Choosing the date of effective notice as a default option avoids this pitfall. By “effective notice”, I am referring to any indication by the recipient parent that child support should be paid, or if it already is, that the current amount of child support needs to be re-negotiated. Thus, effective notice does not require the recipient parent to take any legal action; all that is required is that the topic be broached. Once that has occurred, the payor parent can no longer assume that the status quo is fair, and his/her interest in certainty becomes less compelling.

[125] The proper approach can therefore be summarized in the following way: payor parents will have their interest in certainty protected only up to the point when that interest becomes unreasonable … (emphasis added)

[11] The parents share custody of their sons. Based on the applicable Guideline calculations, the set-off amount for determining the parties’ respective child support obligations is $664 payable by the wife to the husband. Since, earlier than May 25, 2015, the wife was well aware that the husband was seeking child support, she shall pay to the husband effective June 1, 2015 the amount of $664 monthly.

Spousal Support

[12] There was considerable conflict in the evidence with respect to the issue whether anything should be paid to the husband on account of spousal support. The parties had cohabited for around 14 years before they separated and, so it would appear, for much of that time the wife was the primary breadwinner for the family. Even so, the wife maintains that the husband suffered no economic disadvantage as a result of the parties’ marriage since he was employed when they married in the same occupation in which he was employed when they separated. Given the circumstances of this family though and, in light of the conflicting evidence, I am not prepared to deal with the issue of the husband’s entitlement to spousal support at this stage and so that will be deferred to trial. In my view, and based on the Spousal Support Advisory Guidelines, the appropriate amount for the wife to pay to the husband for spousal support is $444 monthly. This amount will almost equalize the parties’ net disposable incomes, leaving the wife with a slightly greater net disposable income (50.9%) than the husband (49.1%).

[13] The discrete issue, then, is the effective date from which the wife should be paying spousal support to the husband. Before the husband commenced these proceedings, the wife made significant loan payments on a truck owned and operated by the husband, totalling (according to her) $6,974.64. The amount that the husband is claiming, if the monthly spousal support award is made effective June 1, 2015, would create instant “arrears” of about $4,000. I am not prepared to make an Order that the wife pay the husband spousal support effective June 1 in circumstances where he may be indebted already to her and the equalization payment has not been determined. The Order made will be without prejudice to either party’s support claims at trial when the overall financial equities between the parties can be better determined.

Disposition

[14] As already noted, the parties have agreed on a number of issues relating to health benefits and insurance coverage. This Order will incorporate those provisions. Accordingly, and for the reasons above, a temporary Order shall issue containing the following terms:

(1) Child support for the children of the marriage, namely Patrick Scott Thomas (“Patrick”), born September 14, 2000, and Michael David Thomas (“Michael”), born April 12, 2002, shall be paid as follows:

(a) the husband shall pay to the wife the Table amount of $402 per month in accordance with the Child Support Guidelines, O. Reg. 391/97 [as amended] based on an income of $27,438;

(b) the wife shall pay to the husband the Table amount of $1,066 per month in accordance with the Child Support Guidelines based on an income of $71,997;

(c) the child support payments shall be satisfied by the payment of $664 per month payable by the wife to the husband, and such payments shall be made on the first day of each month commencing May 1, 2015 pursuant to s. 15.1 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) c.3.

(2) The following provisions shall apply with respect to the children’s special or extraordinary expenses:

(a) the parties shall contribute in proportion to their respective incomes (after deducting from the expenses on an Income Tax Statement as a result of tax credit or deductions from income) towards any special or extraordinary expense pursuant to the Child Support Guidelines and in accordance with the provisions in the Child Support Guidelines. The percentages of the expenses for which the parties are responsible for shall be determined based on income, and spousal support ordered;

(b) the parties will pay their proportionate share of the children’s special or extraordinary expenses within 15 days of being provided with proof of the expense. In determining the contribution to the expense, the parties will deduct any income tax benefit or other subsidy received for that special or extraordinary expense. With the exception of emergency and routine medical or dental costs and prescriptions, the parties will only contribute to a child’s special or extraordinary expenses if the parties consent to the expense in advance in writing. Neither party will unreasonably withhold consent.

(3) The husband shall be entitled to claim Patrick as an eligible dependant for tax reporting purposes.

(4) The wife shall be entitled to claim Michael as an eligible dependant for tax reporting purposes.

(5) The wife shall pay to the husband periodic spousal support in the amount of $444 a month commencing December 1, 2015 pursuant to s. 15.2 of the Divorce Act.

(6) The wife shall maintain dental, medical and extended health plan coverage for the husband and the children of the marriage for so long as, in the case of the husband, he is eligible for such coverage and, in the case of the children, for so long as they are entitled to such coverage, and the wife has such coverage through her employment, pursuant to s. 34(1)(j) of the Family Law Act.

(7) The husband shall designate the wife as trustee for the children as beneficiaries of his life insurance policy held with Sun Life Financial, policy number J7078052, in the amount of $250,000 as security for the performance of his child support obligations and shall provide proof of such coverage to the wife within 15 days of a written request, pursuant to s. 34(1)(i) and 34(2) of the Family Law Act.

(8) The wife shall designate the husband as trustee for himself and the children as beneficiaries as to 25% for him and the children as to 75% of the proceeds of her life insurance policy held with Sun Life Financial, policy number J7078044, in the amount of $500,000 as security for the performance of her support obligations, and shall provide proof of such coverage to the husband within 15 days of a written request, pursuant to s. 34(1)(i) and 34(2) of the Family Law Act.

[15] A Support Deduction Order shall issue.

[16] If the parties are unable to agree upon costs of the motions argued, then each shall, no later than December 30, 2015, provide their written submissions, limited to three double-spaced typewritten pages together with their Bills of Costs, Offers to Settle and Authorities (if any) upon which they may be relying.

“Justice David A. Jarvis”

Justice David A. Jarvis

Date: December 11, 2015