CITATION: Williamson v. Williamson, 2016 ONSC 1180
COURT FILE NO.: FD854/13
DATE: February 24, 2016
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Heather Deanne Williamson
William R. Clayton, for the Applicant
Applicant
- and -
Matthew Andrew Williamson
No one appearing for the Respondent
Respondent
HEARD: October 15, 2015; written submissions received October 26, 2015
MITROW J.
[1] This uncontested trial commenced before me on February 13, 2015. Pursuant to reasons released June 3, 2015, Williamson v. Williamson, 2015 ONSC 3300 (S.C.J.), a decree of divorce was granted; the applicant was awarded sole custody of the two children of the marriage (both children now age 11) and the respondent was awarded access to both children, said access to be at the discretion of the applicant and supervised at the applicant’s discretion; and the applicant was awarded exclusive possession of the matrimonial home and contents until July 31, 2018. Those orders all were made on a final basis.
[2] The evidentiary record was insufficient to deal with other issues on a final basis, and the reasons set out additional evidence that was required. Accordingly, the issue of an equalization payment was not dealt with; child support and spousal support were dealt with on an interim basis; in relation to the 2011 Toyota Sequoia motor vehicle (“Toyota motor vehicle”) owned by Fusion Concepts Inc. (“Fusion”), an interim order was made requiring the respondent to direct Fusion to continue making all loan payments and car insurance payments in respect of this vehicle, which was being driven by the applicant.
[3] On the continuation of this uncontested trial on October 15, 2015, the applicant had provided further evidence via an affidavit sworn October 13, 2015 and additional exhibits were filed at the hearing. Subsequently, the applicant’s counsel, Mr. Clayton, provided written submissions, together with an authorities brief.
CHILD SUPPORT
[4] The history of the respondent’s failure to provide financial disclosure, as ordered, which resulted in an order striking his pleadings, was discussed in the previous reasons: see paras. 4 – 14.
[5] In relation to the respondent’s income, the interim child support order was based on a financial statement filed by the respondent sworn October 27, 2014, disclosing an income of $161,999, consisting of employment income of $34,512 and actual dividend income of $127,487. Accordingly, the interim child support was fixed at $2,149 per month, being the table amount for two children for $161,999.
[6] In her updated Spousal Support Advisory Guidelines (“SSAG”) calculation (filed as Ex. 18 at the resumption of the trial), the applicant included in the income of the respondent the sum of $18,000 annually; this amount was disclosed by the respondent in his financial statement as an employer paid benefit for his rental accommodation.
[7] This amount had not been included previously in the SSAG calculations prepared on behalf of the applicant. I agree that this amount of $18,000 should be included in the respondent’s income and it should be grossed-up as shown in the SSAG calculations.
[8] The applicant, in her updated calculations, uses the respondent’s total taxable dividend income of $144,221, and then the SSAG software makes the adjustment required by deducting the difference between the actual dividends received and taxable dividends, pursuant to s. 5, Schedule III of the Federal Child Support Guidelines (“the Guidelines”). This deduction is shown as $22,000 and this translates to actual dividend income of $122,221 ($144,221 minus $22,000).[^1]
[9] For greater accuracy, it is best to use the actual dividend of $127,484 as this was the amount disclosed by the respondent in his financial statement sworn October 27, 2014. The taxable dividend of $144,221 was taken from the respondent’s 2010 income tax return.
[10] It should be noted that the respondent’s actual financial disclosure was very sparse, consisting of a financial statement and a 2010 tax return that was in the applicant’s possession and attached to her material.
[11] The applicant’s updated SSAG calculations include a utilization of the SSAG software that purports to include tax savings, together with gross-ups in relation to the respondent’s dividend income. This adjustment is made pursuant to s. 19(1)(h) of the Guidelines. The result is that the respondent’s income, for child support purposes, is calculated at $214,294. The applicant’s SSAG calculation, at the commencement of the trial in February 2015, did not include s. 19(1)(h) adjustments. The respondent’s income without these adjustments is $196,879[^2].
[12] The difference in the respondent’s income is over $17,000 greater when applying the s. 19(1)(h) adjustments pursuant to the SSAG software. While in principle there may be tax savings where an individual elects to take income in the form of a dividend from a corporation he or she controls, the only mandatory adjustment prescribed by Schedule III of the Guidelines is to substitute the actual dividend received in place of the grossed-up taxable dividend that is part of line 150 income.
[13] Any application of s. 19(1)(h), in my view, has to go beyond the mere “clicking” of that option in the SSAG software, absent agreement of both parties. There should be some evidence presented that sets out the actual calculations as to how the tax savings are quantified. No such calculations were provided in the present case. Accordingly, I decline to apply s. 19(1)(h) on the basis of lack of sufficient evidence.
[14] It was noted, in my previous reasons, that the respondent’s lack of disclosure and failure to comply with disclosure orders was properly characterized as “egregious”: para. 14. The respondent had a capacity during the marriage to earn a substantial income as evidenced by the parties’ lifestyle. I impute to the respondent on an ongoing basis the level of income he generated as disclosed in his sworn financial statement, with the employer-paid rent for his personal residence in the amount of $18,000 annually being subject to a gross-up.
[15] Accordingly, I find the respondent’s income is $196,879 for both spousal support and child support purposes.
[16] It was the applicant’s position, at the beginning of the trial, that child support, and also spousal support should commence February 1, 2015. This start date was on the basis that the respondent, after separation and prior to that time, had been making various voluntary payments for the benefit of the applicant and the children, including payments in relation to the matrimonial home, payments in relation to the vehicle being driven by the applicant and also payments for cellphone and internet use.
[17] The table amount of child support is $2,546 per month based on an income of $196,879. This amount is ordered on a final basis commencing February 1, 2015 pursuant to s. 4(a) of the Guidelines. The order below vacates the interim order.
EQUALIZATION PAYMENT
[18] The applicant has included in her evidence an updated net family property statement that adequately addresses issues in relation to various assets owned by the applicant, that had not been properly valued, or at all, as discussed in the previous reasons. The equalization payment owing by the respondent to the applicant, as set out in the net family property statement, is $38,398 (rounded). I accept the calculations of each party’s net family property as set out in the applicant’s net family property statement.
[19] It bears repeating, as alluded in the previous reasons, that the respondent failed to value his interests in various corporations, and that the applicant elected to proceed without those valuations, given the respondent’s conduct and the applicant’s desire to bring this matter to a conclusion. It is noted that of the five corporations that the respondent had an interest in, that two of those corporations, one of them being Fusion, are owned in equal shares by the applicant and respondent.
[20] In her submissions, the applicant raised a matter of an unequal division of net family property pursuant to s. 5(6) of the Family Law Act, R.S.O. 1990, c. F.3 that related to the respondent’s unilateral withdrawal of money from the parties’ joint line of credit secured by the matrimonial home.
[21] At date of separation, the joint line of credit secured by the jointly-owned matrimonial home totalled $307,315. It was the applicant’s evidence, which I accept, that post-separation, the respondent withdrew substantial sums from the line of credit, with the result that the sum of $706,400 (rounded) was owing as at the date of the conclusion of the trial.
[22] In round numbers, the line of credit increased by $399,000 ($706,400 at date of trial, minus $307,315 at date of separation, equals $399,085, rounded to $399,000). The result is that the applicant’s share of her equity in the matrimonial home has been reduced by $199,500 (50 per cent x $399,000).
[23] The applicant’s evidence was that she was not aware as to what the respondent did with this money. There was no accounting by the respondent to the applicant in relation to this money.
[24] It is the applicant’s evidence that the respondent continues to be secretive about his financial situation and that he does not disclose anything about his financial circumstances to the applicant. This is consistent with the conduct of the respondent in failing to comply with court orders for financial disclosure.
[25] The respondent’s lack of financial disclosure, and his reckless financial conduct in eroding the equity in the matrimonial home, has exacted a significant emotional toll on the applicant who is struggling to make ends meet and doing her best to maintain the matrimonial home as a residence for herself and the children.
[26] I have little hesitation in concluding that the respondent’s reckless erosion of the applicant’s equity in the matrimonial home post-separation, without the applicant’s concurrence, renders it unconscionable to equalize the parties’ net family properties.
[27] Pursuant to s. 5(6)(h) of the Family Law Act, the equalization payment owing by the respondent is increased by $199,500. I find that the total equalization payment owing by the respondent to the applicant is $237,898 ($199,500 plus $38,398).
[28] This equalization payment is below the value of the respondent’s net family property, which is $281,449 as set out in the net family property statement; therefore the application of s. 5(6) complies with the decision of the Court of Appeal for Ontario in the von Czieslik v. Ayuso, 2007 ONCA 305, where it was held that s. 5(6) permits an award of up to 100 per cent of a party’s net family property to the other spouse.
[29] It is noted that the applicant’s net family property statement did not disclose any value in respect of a mortgage registered on the title to the matrimonial home in the amount of $140,000. Hence, this mortgage would not have been factored into the net family property of either party.
[30] I am satisfied on the evidence that, although this mortgage was registered on title against the matrimonial home, that in fact the total indebtedness owing to the mortgagee that was secured by the matrimonial home was the balance owing on the line of credit. A mortgage securing the line of credit was separately registered on title against the matrimonial home.
[31] Accordingly, no amount needs to be deducted from the respondent’s net family property in relation to the $140,000 registered mortgage. In any event, the respondent’s true net family property is understated, perhaps significantly, as none of the five corporations that the respondent had an interest in at date of separation have been valued.
[32] I agree with the applicant’s submission that the respondent’s interest in the matrimonial home should be vested in the applicant pursuant to s. 9 (1)(d)(i) of the Family Law Act:
- (1) In an application under section 7, the court may order,
(d) that, if appropriate to satisfy an obligation imposed by the order,
(i) property be transferred to or in trust for or vested in a spouse, whether absolutely, for life or for a term of years, or
(ii) any property be partitioned or sold.
[33] Given the respondent’s conduct in relation to financial disclosure, and considering also the extent to which he encumbered the matrimonial home post-separation, the prospect of the respondent paying the equalization payment is remote. I find that it is appropriate to vest the matrimonial home in the applicant, with the respondent receiving a credit towards the equalization payment that he owes equal to his share of the equity in the matrimonial home.
[34] I accept the evidence provided by the applicant as to the matrimonial home having a current fair market value of $875,000. The existing line of credit secured by the matrimonial home is in the amount of $706,400 resulting in a total equity of $168,600. Therefore the respondent’s share of the equity is $84,300 and this amount should be allowed as a credit to the respondent towards this obligation in relation to equalization payment.
[35] I mention briefly the applicant’s position in her written submissions that if matrimonial homes was vested in her name, then she will be responsible for paying all the line of credit, and therefore the equalization payment should be adjusted to require the respondent to pay to the applicant one half of the total outstanding line of credit namely $706,000 (rounded) x ½ = $353,000. The applicant cites Rasile v. Rasile, 2011 ONSC 2851 (S.C.J.) as authority for this submission.
[36] I do not agree with the applicant’s submission; nor does Rasile support the applicant’s submission.
[37] The above calculation by the applicant is incorrect. First, at date of separation there was already little over $300,000 owing on the joint line of credit. That amount has to be paid by the applicant, as a matter of course, if she receives to the matrimonial home. The applicant is not entitled to be compensated by the respondent for 50 per cent of that amount. Second, in relation that portion of the line of credit attributable to the respondent taking out approximately $400,000 from the line of credit post-separation, the appropriate adjustment for that amount has already been dealt with earlier by increasing the equalization payment by $199,500. The other 50 per cent of the increase in the line of credit post-separation represents the respondent drawing down on his own share of the equity.
[38] I decline, as asked by the applicant, to make any further adjustment to the equalization payment by taking into account the two payments on the line of credit made by the applicant in August and September of 2015. The applicant’s obligation to make payments towards the line of credit has been taken into account in dealing with spousal support, as discussed below.
[39] The applicant will be solely responsible for paying off the mortgage securing the line of credit.
SPOUSAL SUPPORT
[40] As set out in the previous reasons, spousal support was dealt with on an interim basis requiring the respondent to pay $1,750 per month commencing February 1, 2015.
[41] The applicant now has provided some further evidence that enables the court to deal with spousal support on a final basis.
[42] It is the applicant’s evidence that the respondent has failed to make any of the monthly line of credit payments of $2,300 since February, 2015. As discussed earlier, the applicant herself made payments of $2,300 for August and September, 2015.
[43] The respondent had been paying for the internet and cellphones but in August 2015, those services were discontinued and the applicant was required to set up her own cellphone and internet service.
[44] In relation to the Toyota motor vehicle owned by Fusion, but driven by the applicant since date of separation, it was the applicant’s evidence that the monthly loan payment of $730.06 was one month in arrears and that the balance owing on the loan for this motor vehicle was $10,528.72. The loan payments, in the past, were made by Fusion for the benefit of the applicant. The applicant also learned that Fusion had not been making any payments for insurance on this motor vehicle for a number of months after May 31, 2015.
[45] The applicant requests that she have ownership of this Toyota motor vehicle and that issue is dealt with separately below.
[46] In September 2015 the applicant received a letter from Canada Revenue Agency in relation to her liability as a director of Fusion for unremitted G.S.T. and/or H.S.T. payments. The applicant has had to engage professional advisors to contact Canada Revenue Agency on her behalf to deal with this issue. The evidence supports a conclusion, which I make, that the applicant’s position as a director of Fusion was nominal only and made at a time when the parties were still living together. It is clear on the evidence that the respondent on a de facto basis operated and fully controlled Fusion.
[47] In relation to spousal support I have considered the factors and objectives pursuant to ss. 15.2(4) and 15.2(6) of the Divorce Act, R.S.C. 1985, c.3 [as am. By S.C. 1997, c.1].
[48] Given the assumption of child-care responsibilities by the applicant during the marriage, I find that the applicant’s entitlement to spousal support is not only on a needs basis but also includes a compensatory component.
[49] Since separation the applicant has been saddled with the complete responsibility to care for the children, given the respondent’s unresolved substance abuse issues, as discussed in the previous reasons. The applicant, to her credit, has continued to arrange for the children to have contact with the respondent.
[50] Further, although the applicant advances no formal claim for s. 7 expenses for the children, the applicant without contribution from the respondent continues to incur, and fund, expenses for the children relating to camp, therapy, tutoring, dental expenses, and extra-curricular activities.
[51] At the time of the resumption of the trial on October 15, 2015, the respondent had not paid any of the interim child support and interim spousal support payments pursuant to the divorce order dated June 3, 2015.
[52] The applicant submits that spousal support should be dealt with on a lump sum basis. The leading authority relied on by the applicant is Davis v. Crawford, 2011 ONCA 294, a decision of a five-member panel of the Court of Appeal for Ontario. In written submissions, the applicant attaches DIVORCEmate calculations and seeks a lump sum spousal support payment of $146,486.
[53] The decision of whether to award a lump sum payment of spousal support requires the court to weigh the advantages and disadvantages in making such an order. This was summarized in Davis, supra at paras. 66-69:
[66] Most importantly, a court considering an award of lump sum spousal support must weigh the perceived advantages of making a lump sum award in the particular case against any presenting disadvantages of making such an order.
[67] The advantages of making such an award will be highly variable and case-specific. They can include but are not limited to: terminating ongoing contact or ties between the spouses for any number of reasons (for example: short-term marriage; domestic violence; second marriage with no children, etc.); providing capital to meet an immediate need on the part of a dependant spouse; ensuring adequate support will be paid in circumstances where there is a real risk of non-payment of periodic support, a lack of proper financial disclosure or where the payor has the ability to pay lump sum but not periodic support; and satisfying immediately an award of retroactive spousal support.
[68] Similarly, the disadvantages of such an award can include: the real possibility that the means and needs of the parties will change over time, leading to the need for a variation; the fact that the parties will be effectively deprived of the right to apply for a variation of the lump sum award; and the difficulties inherent in calculating an
appropriate award of lump sum spousal support where lump sum support is awarded in place of ongoing indefinite periodic support.
[69] In the end, it is for the presiding judge to consider the factors relevant to making a spousal support award on the facts of the particular case and to exercise his or her
discretion in determining whether a lump sum award is appropriate and the appropriate quantum of such an award.
[54] I find that a lump sum award of spousal support is not appropriate in the present case.
[55] Although the respondent has failed to make any interim payments pursuant to the existing order, the respondent did provide for the applicant and the children, subsequent to separation for a number of years on a voluntary basis.
[56] There is a significant hurdle, I find, in attempting to calculate an appropriate lump sum to replace a future stream of ongoing spousal support payments. I also take into account the deprivation of the right to apply for a variation in the event of a material change in circumstances. This is not a case where a lump sum payment of spousal support would be advantageous because it would terminate ongoing contact between the parties, as in the present case, the parties will continue to have contact with each other in relation to their children. Also this is a 13 year relationship, not a short-term relationship where a lump sum award may be appropriate. Finally, there is no evidence that a lump sum award will give the applicant access to capital to provide for the applicant’s support. The only asset of any significance owned by the respondent, is his interest in the matrimonial home; however that has already been dealt with by a vesting order in relation to equalization payment as discussed earlier. Although the respondent’s shares in the corporations were not valued, there is no evidence before the court as to what their potential value may be. Hence, it is not practical to look towards the respondent’s interest in the shares as a means of satisfying any portion of the equalization payment.
[57] The applicant’s updated SSAG calculations (Ex. 18) show the low-mid-high ranges for spousal support in the amounts of $1,387-$2,113-$2,834. In calculating the applicant’s income, this includes a deduction of $5,532 for carrying charges and interest expenses. Such a deduction is permitted by s. 8, Schedule III of the Guidelines.
[58] The premise of the SSAGs is that the starting point for determination of income is the definition of income under the Federal Child Support Guidelines: Spousal Support Advisory Guidelines, July 2008, at para. 6.1.
[59] In the present case, the sum of $5,532 is explained in schedule 4 of the applicant’s 2014 income tax return as a deduction for “legal fees paid to collect, establish or increase the amount of support payments”. However, that expense was unique to 2014. There is no evidence as to what if any similar expense may be claimed for 2015 and future years. Accordingly, on the facts of this case, a deduction for “interest and carrying charges” is not included in calculating the applicant’s income for spousal support purposes.
[60] I find that it is reasonable to base the applicant’s income on the taxable non-eligible dividends totaling $77,880 that the applicant received from her corporation as disclosed in her 2014 income tax return, being her most recently filed income tax return. This amount will be adjusted pursuant to s. 5, Schedule III of the Guidelines. Also the applicant’s net rental income of $7,200 should be included as suggested by the applicant.
[61] However for reasons similar to those discussed earlier in relation to the respondent, I find it is not appropriate, on the evidence, to include in the applicant’s income the tax savings resulting from the applicant receiving dividend income. After making the necessary SSAG adjustments, the applicant’s income, for spousal support purposes is $73,200[^3].
[62] After applying the adjustments, the SSAG ranges are $1,334-$2,108-$2,878, using incomes of $196,879 for the respondent and $73,200 for the applicant; as it turns out, these ranges are very similar to the SSAG ranges shown in the applicant’s calculations.
[63] The applicant, clearly, has suffered economic disadvantage as a result of the marriage break-up, much more so than the respondent. The applicant is forced to pay interest on an additional mortgage amount of approximately $400,000 because the respondent unilaterally increased the line of credit post-separation. Taking into account those and other circumstances, and considering also the non-compensatory element of spousal support, I find that an appropriate amount of spousal support should be towards the higher end of the SSAG ranges.
[64] I fix spousal support at $2,700 per month. I make this spousal support order effective March 1, 2015 (rather than February 1, 2015) because the respondent had made a payment on the line of credit for the month of February 2015, and hence for that month the interim order will continue to apply.
[65] The applicant made a number of written submissions, and cited various authorities, to support her argument that spousal support and child support should be secured by the respondent’s interest in the matrimonial home, and further, that the respondent’s interest in the matrimonial home should be vested in the applicant as a mechanism of enforcing child support and spousal support arrears. I find it is not necessary to deal with these submissions, because the matrimonial home is already vested in the applicant to enforce the equalization payment. Accordingly it becomes moot to consider the respondent’s interest in the matrimonial home as security for child support and spousal support arrears.
[66] I do correct one of the facts set out in para. 16 of the previous reasons. That paragraph stated that the parties met in 1987. The parties in fact met in 1997.
THE TOYOTA MOTOR VEHICLE
[67] I accept the applicant’s submissions that the 2011 Toyota Sequoia motor vehicle that the applicant has been driving since the date of separation should be vested in her name. I agree that the pleadings should be amended to add Fusion as a party to compel Fusion to sign any necessary documents to effect transfer of the motor vehicle to the applicant. No prejudice would be suffered by the respondent by that amendment given the facts of this case.
[68] The applicant has not provided the court with the current value of this motor vehicle. Given that the respondent is a 50 per cent shareholder of Fusion, the vesting of this motor vehicle should result in a credit to the respondent towards the amount owing on the equalization payment. The “equity” in the motor vehicle would be equal to the current fair market value of the motor vehicle less the outstanding loan. It would be appropriate for the credit to be equal to 50 per cent of the equity given that the respondent is a 50 per cent shareholder.
[69] Notwithstanding the lack of evidence as to the current fair market value of the motor vehicle, I find that a vesting order is still appropriate.
[70] The order below provides for a mechanism to ascertain the fair market value of the Toyota motor vehicle and a method to calculate the amount to be credited to the respondent towards the equalization payment that he owes.
[71] The vesting of the Toyota motor vehicle in the applicant’s name is made pursuant to s. 9(1)(d)(i) of the Family Law Act as partial satisfaction of the equalization payment owing by the respondent.
[72] The applicant will be solely responsible for the outstanding loan on this motor vehicle. It is noted that the above is very fair to the respondent, as quite likely, the equity in the two vehicles being retained by the respondent as disclosed in his financial statement (being the 2013 Corvette and the 2008 Cadillac Escalade owned by Fusion) together would likely exceed the equity in the Toyota motor vehicle.
THE ONTARIO CHILD SUPPORT GUIDELINES
[73] It was improper for the divorce order dated June 3, 2015 to include the following para. 13:
For so long as child support is paid, the payor and recipient, if applicable must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this order, in accordance with s. 24.1 of the Child Support Guidelines.
[74] The reference to “s.24.1 of the Child Support Guidelines” is a reference to the Ontario Child Support Guidelines enacted pursuant to the Family Law Act. The interim child support order was made pursuant to the Divorce Act; accordingly the Ontario Child Support Guidelines have no application. “Section 24.1” does not exist in the Federal Child Support Guidelines. This issue was recently canvassed in Montgomery v. Jones, 2015 ONSC 4540 (S.C.J.).
[75] Accordingly the order below vacates para. 13 of the divorce order.
PRE-JUDGMENT INTEREST
[76] The applicant advances a claim for pre-judgment interest in the amount of a little of $2,000 plus a per diem subsequent to the conclusion of the trial. I decline to make any order for pre-judgment interest on the basis that the evidence does not show any liquid assets that could have been accessed by the respondent to make the equalization payment; much of the respondent’s net family property is his interest in the matrimonial home.
COSTS
[77] I have considered the respondent’s bill of costs (filed as Ex. 17) in relation to finalization of the uncontested trial. The respondent seeks $7,111.09 which represents full indemnity inclusive of H.S.T. and disbursements. Partial indemnity is shown at $4,764.44.
[78] I have considered the various factors in r. 24(11) of the Family Law Rules, O.Reg 114/99. I find that the applicant’s bill of costs is reasonable. I find that the rates for the lawyers are reasonable. These issues were clearly important to the applicant. I also take into account the respondent’s unreasonable conduct throughout, including his failure to provide financial disclosure.
[79] I assess the applicant’s reasonable costs at $7,000, and this is reflected in the order below.
ORDER
[80] For reasons set out above, a final order shall issue as follows:
Pursuant to the Divorce Act, the respondent shall pay to the applicant spousal support in the amount of $2,700 per month commencing March 1, 2015.
Pursuant to the Divorce Act, the respondent shall pay to the applicant child support for the two children of the marriage in the amount of $2,546 per month commencing February 1, 2015 based on the respondent’s annual imputed income of $196,879, pursuant to s. 4(a) of the Federal Child Support Guidelines.
The respondent’s obligation to pay interim child support pursuant to the divorce order dated June 3, 2015 is vacated, effective February 1, 2015.
The respondent’s obligation to pay interim spousal support pursuant to the aforesaid divorce order is vacated, effective March 1, 2015.
The respondent shall pay an equalization payment to the applicant in the amount of $237,898.
The matrimonial home shall vest in the applicant, as asked, in para. 6 of the draft order filed as Ex. 20.
On the later of the date of this order and the registration on title of all required documents, if any, to vest the matrimonial home in the sole name of the applicant, the respondent shall be given a credit of $84,300 towards the equalization payment owing by the respondent to the applicant.
The legal and beneficial ownership of the 2011 Toyota Sequoia motor vehicle is vested in the applicant. (This paragraph in the formal signed and issued order shall include the serial number of the motor vehicle as shown in Ex. E appended to the affidavit of the applicant sworn October 13, 2015, said affidavit being filed as Ex. 14.)
The respondent and Fusion Concepts Inc. forthwith shall take all necessary steps and shall sign all necessary documents to transfer ownership of the motor vehicle described in paragraph 8 of this order into the name of the applicant. The respondent forthwith shall direct Fusion Concepts Inc. to sign all necessary documents to transfer the said motor vehicle into the name of the applicant.
Fusion Concepts Inc. is added as a party to this proceeding for the purpose of enforcing paragraphs 8 and 9 of this order.
Within 21 days, the applicant shall obtain two independent written current fair market value appraisals of the motor vehicle described in paragraph 8 of this order and on transfer of this motor vehicle into the name of the applicant, the respondent shall be given credit towards the equalization payment owing by the respondent to the applicant as follows:
a. The equity in the motor vehicle shall be determined;
b. The equity is equal to the average of the two appraisals minus the loan outstanding at the time of trial in the amount of $10,528.72;
c. The credit towards the equalization payment is 50 per cent of the equity.
Paragraph 8 of the divorce order dated June 3, 2015 (interim child support and interim spousal support secured by matrimonial home) and paragraph 13 of the divorce order (annual income disclosure) are vacated.
The respondent shall pay to the applicant her costs incurred in the completion of this trial, fixed in the amount of $7,000 inclusive of H.S.T. and assessable disbursements. The amount of $6,000 of the said costs order shall constitute a “support order” within the meaning of the Family Responsibility and Support Arrears Enforcement Act, S.O. 1996, c.31 [as amended].
On May 15 of each year commencing 2016 the respondent shall provide to the applicant, for so long as the respondent is required to pay child support, all the financial disclosure required pursuant to s. 21 of the Federal Child Support Guidelines, and in relation to the respondent’s obligation to provide his personal income tax returns, the respondent shall provide his T1 General income tax returns together with all slips and schedules.
The reasons for judgment, the signed and issued order and the appraisals referred to in paragraph 11 of this order shall be served personally on the respondent within 30 days, and proof of service together with copies of both appraisals, shall be filed in the continuing record.
“Justice Victor Mitrow”
Justice Victor Mitrow
Date: February 24, 2016
CITATION: Williamson v. Williamson, 2016 ONSC 1180
COURT FILE NO.: FD854/13
DATE: February 24, 2016
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Heather Deanne Williamson
Applicant
- and -
Matthew Andrew Williamson
Respondent
REASONS FOR JUDGMENT
MITROW J.
Released: February 24, 2016
[^1]: Ex. 18 did not contain the SSAG calculation details, but those details were included in an attachment to the SSAG calculations included with the applicant’s written submissions.
[^2]: The respondent’s income of $196,879 is arrived at by using the data in the applicant’s SSAG calculations (Ex. 18) with the following changes: input actual dividend, non-eligible, of $127,484, rather than the taxable non-eligible dividend of $144,221; and do not trigger the dividend tax-saving/gross-up calculations.
[^3]: The following changes were made to the applicant’s SSAG calculation in Ex. 18: replace respondent’s taxable non-eligible dividend income of $144,221 with an actual non-eligible dividend of $127,484; for the applicant, remove $5,532 as a deduction for carrying charges and interest; remove for both applicant and respondent the tax saving and gross-up pursuant to s. 19(1)(h) for dividend income.