Court File and Parties

CITATION: Boyko v. Boyko, 2016 ONSC 1729

COURT FILE NO.: FS-15-405679

DATE: 20160311

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Irene Boyko, Applicant

AND:

Robert Michael Boyko, Respondent

BEFORE: Hood J.

COUNSEL: Lorne J. Fine, for the Applicant

Silvano A.A. Del Rio, for the Respondent

HEARD: March 1, 2016

ENDORSEMENT

[1] The parties married in 1988 and separated in either 2014 or 2015. The year does not matter for the purposes of this motion for interim support as the Applicant Wife (“AW”) is seeking interim support from February 1, 2016 onwards. She is not seeking, at this time, retroactive support. She is now 56 and the Respondent Husband (“RH”) is 53.

[2] This was a traditional long-term marriage. The AW gave up her nursing career to look after the home, to support her husband’s career and to raise the parties’ child, William, who is now 25, self-sufficient and resides on his own. The RH has had a successful medical career, opening and running his medical practice, acting as an Inquest Coroner and teaching at the University of Toronto.

[3] There is no issue of entitlement. In fact the RH brought his own motion for spousal support for the AW in the belief that the AW was not moving quickly enough to have this issue resolved.

[4] What is at issue is quantum. The parties have different views as to what the RH’s income is and what income should be imputed to the AW. As a result, they have different amounts for spousal support.

[5] An interim order under s. 15.2(1) of the Divorce Act is meant to be a short-term solution until trial when an in-depth examination can be undertaken. The motion is meant to be summary in nature and to provide “rough justice” between the parties pending trial.

[6] Here the parties are arguing over whether the AW’s imputed income should be $22,000 or $30,000, and whether the RH’s income should be $259,722 or $197,164.

[7] The AW is prepared to accept that she should have $22,000 imputed to her, which represents minimum wage. The RH argues she has not tried hard enough to find work, has not sent out enough applications and has the ability to do a lot more. During the marriage she worked part time as a piano instructor. Her income from this was minimal. She grossed approximately $19,000 per year. She apparently lacks the necessary qualifications to earn substantially more as a piano teacher. She also earned income of $30,000 per year from the RH’s medical corporation doing very rudimentary bookkeeping and making bank deposits. This was done in order to split income. The RH’s corporation terminated her employment on January 28, 2016. The actual cost to the corporation for a third party to do the AW’s job is close to $6,000. She has no formal accounting or bookkeeper training and it is arguable whether she can find a similar job paying the same amount from an independent employer.

[8] The RH has not proven to my satisfaction on this motion that more than the minimum wage amount of $22,000 can be imputed to the AW.

[9] With respect to the RH’s income an expert report was filed by both parties. There were no cross-examinations of any of the experts. The Noxon report, filed on behalf of the AW, concludes that the RH’s income for 2015 was $224,922. Because his income has declined from 2013 and from 2014, due to increased teaching, which generates far less income than his medical practice, Noxon averaged his income over three years, arriving at a figure of $259,722. The AW argues the RH has intentionally reduced his income therefore the average is appropriate.

[10] The Marino report, filed on behalf of the RH, concludes that the RH’s income is less. It concludes that his income for 2015 was $197,100 and the three-year average is $231,433. Without going into great detail the basic difference between the two reports is whether the income paid to the AW by the RH’s medical corporation, in excess of the market value for those services, or in other words $30,000 less $6,000 for a total of $24,000, should be added back to the RH’s income. If so, then Noxon’s figures are appropriate. If not, then Marino’s figures are.

[11] The two reports both acknowledge that this is basically the difference between them. The AW obtained another report from Krofchick Valuation Partners. Krofchick reviewed both the Noxon and Marino reports, and calculated the difference between them, adding the $24,000 to the RH’s income for 2015 to the Marino figure, for incomes of $224,922 (Noxon) and $221,100 (Marino). Krofchick gave the opinion that it was appropriate to add the $24,000 on to the RH’s income and that this was in keeping with s. 18(2) of the Federal Child Support Guidelines.

[12] On the materials before me I find that the figure of $224,922 is to be used for the purposes of interim spousal support. The payment to the AW of $30,000 was for income splitting purposes. The market value for her services was $6,000, for a difference of $24,000. The RH argues I should take into account that the corporate year-end is June, which differs from the calendar year, so any savings will not be immediate for the RH. However, that is not the analysis undertaken by Noxon or Krofchick. It is not a question of savings but what is income for support purposes, pursuant to the Federal Child Support Guidelines.

[13] As to the issue of averaging income for three years, as argued by the AW, I am not prepared on a motion for interim support to do so. It is more appropriate to explore this issue of the RH’s declining income at trial upon a proper evidentiary record.

[14] Accordingly, the incomes for the purposes of spousal support I determine to be $22,000 for the AW and $224,922 for the RH. The parties have provided me with all of the various Supportmate Calculations using all of the possible incomes for the AW and the RH. The RH argues that whatever incomes are used the number for support should be in the mid-range. The AW argues the number for support should be in the high range, or alternatively, at a midpoint between the mid and high range. Using the incomes of $224,922 and $22,000 the numbers are respectively $7,398, $8,337 and $7,867.50.

[15] I have considered the factors and objectives as set out in s. 15.2(4) and (6) of the Divorce Act. As previously stated, this was a long-term traditional marriage where the AW gave up her nursing career to look after their home, support her husband’s career and to raise their child. I find there is a case to be made for a compensatory basis for support. There is also an argument to be made for a non-compensatory basis for support – the AW’s need. The parties during marriage had a very comfortable standard of living. Whether it was lavish, as described by the AW, is for the trial judge to determine. Her expenses are not extravagant or unreasonable. The largest expenses relate to the matrimonial home and its upkeep, to which the AW has no ability to contribute without support.

[16] Considering the length and nature of the marriage, the age of the parties and the present economic disadvantage being suffered by the AW I do not believe that the mid-range is appropriate and find that the award should be towards the high range. I round the high range award of $8,337 down to $8,000, which provides the RH with slightly more than 50% of the net disposable income. This amount is to be paid as interim support, commencing February 1, 2016 until trial or further order of the court. A support deduction order is to issue. As agreed by the parties the matrimonial home is to be sold. Upon payment of support the AW acknowledges that she will be responsible for her portion of the carrying costs associated with the home pending sale.

[17] I would hope that the parties would be able to reach an agreement as to costs. I encourage the parties to try to do so.

[18] If unable to, the AW may file brief written submissions, not to exceed two typed, double-spaced pages, together with a Bill of Costs and any necessary documents, such as offers to settle, within two weeks from the release of this endorsement. The RH may file responding submissions, subject to the same directions, within a further two weeks from service by the AW. I understand that often the parties, following service, file their submissions as part of the continuing record. The court office does not always bring the submissions to the court’s attention as they are unaware that the court is waiting for these submissions. Accordingly, I direct the parties to not only file their respective costs submissions as part of the continuing record, but to also provide a copy directly to Judges’ Administration, Room 170, at 361 University Avenue, to my attention.

HOOD J.

Date: March 11, 2016