Court File and Parties
COURT FILE NO.: FS-15-5530 DATE: 2016-06-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
James Andrew Johnston, Applicant
Counsel: Samuel R. Bachinski, for the Applicant
- and -
Lisa Anne Johnston, Respondent
Counsel: William Shanks, for the Respondent
HEARD: May 25, 2016, at Kenora, Ontario
BEFORE: Regional Senior Justice D. C. Shaw
Decision On Motion
[1] The parties each bring a motion.
[2] Ms. Johnston seeks child and spousal support together with an order that Mr. Johnston maintain her and the child of the marriage on his extended health benefits and designate her as the beneficiary of his life insurance policy.
[3] Mr. Johnston requests an order imputing income to Ms. Johnston on the grounds that she is deliberately underemployed. He requests that Ms. Johnston contribute to daycare costs that he incurs while the child is in his care. He seeks an order that Ms. Johnston maintain the child on any extended health benefits she may have and that she obtain life insurance, naming the child as beneficiary.
[4] Ms. Johnston is 39 years of age. Mr. Johnston is 35 years of age. They began living together in April 2001 and were married on August 24, 2002. They separated May 31, 2014. The one child of the marriage, Collin Brodie (“Brodie”) Johnston, was born June 14, 2008. He will soon be 8 years of age and is completing Grade 2.
[5] The parties have resided in the Red Lake/Balmertown area since 2005. During the two years of separation, Brodie has resided with each parent on a week on/week off schedule.
[6] Mr. Johnston is employed on a full-time basis as a Safety Leader with Goldcorp Red Lake Gold Mines in Red Lake. His employment income during the past three years was:
2013 $102,826.20 2014 $95,571.70 2015 $96,328.68.
[7] The motions were argued on the basis that Mr. Johnston’s income for 2016 will be the same as it was for 2015.
[8] Ms. Johnston was employed on a full-time basis with Rubicon Minerals as an Executive Assistant and then more recently with Goldcorp as a Maintenance Planner. Her employment with Goldcorp ended in February 2, 2016. Her employment income during the past three years was:
2013 $87,103.00 2014 $61,798.00 2015 $69,126.51.
[9] Ms. Johnston was on stress leave from her employment with Goldcorp from August 11, 2015 until January 13, 2016.
[10] On February 2, 2016, Goldcorp terminated the employment of Ms. Johnston and 70 – 80 other individuals.
[11] In 2016, Ms. Johnston received the following income in connection with her employment at Goldcorp: (a) disability benefits – January 1 – 16 $2,163.28 (b) regular earnings – January 17 – February 2 $2,884.38 (c) termination pay – February 2 – March 9 $16,166.19.
[12] On March 9, 2016, Ms. Johnston started employment with Contact North in Red Lake as an Online Learning Recruitment Officer. Her rate of pay for the first six months probationary period is $20.52 per hour, with 7% in lieu of vacation pay. She works 28 hours per week. After six months, her hourly rate increases to $21.13 per hour, plus 7% in lieu of vacation pay. I have calculated her pay, extrapolated to an annual basis, to be $31,974 per year for the first six months ending September 2016, and to be $32,920 per year commencing October 1, 2016.
[13] Ms. Johnston will be eligible to participate in the Contact North benefits package after a three-month working waiting period has been served.
[14] Mr. Johnston has a benefits package through his employment with Goldcorp.
[15] Mr. Johnston incurs costs of $220 per month for daycare during the week that the child is with him. Ms. Johnston does not require daycare for Brodie during the week that the child is with her because she is able to arrange her hours at work to care for the child when he is not at school.
Positions of the Parties
[16] Ms. Johnston submits that Mr. Johnston should pay child and spousal support based on his income of $96,328.08 and income imputed to her of $21,990, which she calculates will be her earnings from Contract North during 2016.
[17] She requests support beginning in February 2016 when she first gave notice in writing to Mr. Johnston of her request for support.
[18] Mr. Johnston submits that child and spousal support should be based on Mr. Johnston’s income of $96,328.28 and income imputed to Ms. Johnston of $49,942.43. The figure of $49,942.43 is arrived at by adding together Ms. Johnston’s income received in 2016 through Goldcorp, plus her projected earnings through 2016 with Contact North, plus a child tax credit of $1,982.40 which Mr. Johnston calculates Ms. Johnston will receive in 2016. (I note that the Federal Government has announced that the Canada Child Benefit will replace the Canada Child Tax Benefit and the Universal Child Care Benefit in July 2016.)
[19] Mr. Johnston submits that there are full-time jobs for which Ms. Johnston should have applied that would have resulted in a greater income in 2016 than she will receive from Contact North. Mr. Johnston lists a number of examples of possible full-time employment.
[20] Ms. Johnston responds to this list and states that the positions were not practicable because they were ones for which she was not qualified or that paid minimum wage or paid significantly less than her hourly rate with Contact North. She also lists approximately 11 other positions for which she applied or looked into but did not pursue, for reasons similar to those relating to Mr. Johnston’s list. She continues to look for alternative employment.
[21] Mr. Johnston wants both parties to have $250,000 life insurance, naming Brodie as beneficiary. Ms. Johnston responds that she does not have the financial ability to pay for a life insurance policy at this time and that because Mr. Johnston will be paying support to her, she should be the beneficiary of his life insurance policy.
[22] The parties agree that because they have shared custody, child support should be determined on an off-set basis under the Child Support Guidelines, without any additional calculations.
Discussion
[23] The onus is on Mr. Johnston to establish his claim that Ms. Johnston is deliberately underemployed. He has not satisfied that onus. His affidavit contains no particulars as to the requirements and terms of employment for any of the positions which he submits Ms. Johnston should have applied. Ms. Johnston answers with details as to why none of the positions on Mr. Johnston’s list, and none of the other positions that she looked into, were suitable.
[24] Ms. Johnston sought out and obtained employment with Contact North within a month of the termination of her employment with Goldcorp. She deposes that she is still applying for jobs for which she is qualified. The hourly rate for her job with Central North is approximately double the minimum wage. She qualifies for benefits after three months. Red Lake/Balmertown is a small community, with limited employment opportunities. Ms. Johnston’s choice to take employment with Contact North was, on the facts before me, reasonable.
[25] In my view, the most appropriate basis on which to calculate support is to use the current income for each party. In the case of Mr. Johnston, based on the agreement of counsel, his income is $96,328.05. For Ms. Johnston, her current income is her income from Contact North, extrapolated to an annual amount of $31,974 until September 2016 and an annual amount of $32,920 commencing October 1, 2016.
[26] Because Ms. Johnston deposes that she is continuing to look for employment, which may change her income, and because her position with Contact North is presently on a six month probationary basis, my order will be interm, interim.
[27] Based on a shared custody arrangement, with Ms. Johnston claiming the dependent credit for Brodie, the Spousal Support Advisory Guidelines produce the following results:
(a) Mr. Johnston $96,328 Ms. Johnston $31,974 (i) child support payable by Mr. Johnston $583 (851 – 268) (ii) spousal support payable by Mr. Johnston Low Mid High $893 $1,242 $1,604
(b) Mr. Johnston $96,328 Ms. Johnston $32,920 (i) child support payable by Mr. Johnston $571 (851 – 280) (ii) spousal support payable by Mr. Johnston Low Mid High $864 $1,212 $1,585.
[28] I am not satisfied that Ms. Johnston should contribute to Mr. Johnston’s daycare costs. She shares the burden of daycare by looking after Brodie herself during the week he is with her. However, Mr. Johnston’s daycare costs are a factor I take into consideration in determining his ability to pay spousal support.
[29] Mr. Johnston is critical of certain of the expenses that Ms. Johnston sets out in her Financial Statement. However, Mr. Johnston’s expenses are greater, without taking into consideration the automatic employee deductions that each party has.
[30] Support will begin, retroactive to March 1, 2016, which is approximately when Ms. Johnston began her employment with Contract North.
[31] An interim, interim order shall go that commencing March 1, 2016, and up to and including September 1, 2016, Mr. Johnston shall pay to Ms. Johnston, child support of $583 per month and spousal support of $1,200 per month, based on Mr. Johnston’s imputed income of $96,328, Ms. Johnston’s imputed income of $31,974 and the shared custody provisions of the Child Support Guidelines. Commencing October 1, 2016, Mr. Johnston shall pay to Ms. Johnston child support of $571 per month and spousal support of $1,200 per month, based on Mr. Johnston’s imputed income of $96,328, Ms. Johnston’s imputed income of $32,920 and the shared custody provisions of the Child Support Guidelines.
[32] Each party shall maintain coverage for the child under any health care benefits available to that party through their employment.
[33] Mr. Johnston shall name Ms. Johnston as the beneficiary of his life insurance policy through his employment. I will not require Ms. Johnston to take out a private life insurance policy. However, if she is entitled to a life insurance policy through her employment, she shall name the child as beneficiary.
[34] Support Deduction Order to issue.
Costs
[35] If the parties are unable to agree on costs, they shall contact the Trial Co-ordinator within 30 days to take out an appointment to speak to the matter.
The Hon. Mr. Justice D. C. Shaw
Released: June 1, 2016