BARRIE COURT FILE NO.: FC-15-953-00 DATE: 20160907 CORRIGENDUM: 20160909

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Kimberly Nicholson Applicant – and – Darcy Nicholson Respondent

Counsel: James A. Ironside, for the Applicant Andy J. Cassolato, for the Respondent

HEARD: August 18, 2016

RULING ON MOTIONS

The text in the original Ruling on Motions was corrected on September 9, 2016 and the description of the corrections is appended.

sutherland J.:

Overview

1The parties were married on June 20, 1987 and separated on January 1, 2012 after 24.5 years of marriage.

2They have three children from their marriage: Amber aged 27, Aryn aged 25, and Dale aged 21.

3Amber and Aryn are both presently independent. Dale is still a dependant. Aryn was in the care of the applicant between May to August 2015 and there is no issue that Aryn was a child of the marriage requiring support. In the summer of 2015, the respondent had Aryn in his care for his summer holiday time with her.

4Dale is expected to graduate from the Primary Care Paramedics Program at the end of August 2016. It is anticipated that Dale should obtain employment by the end of this year.

5The applicant has agreed that she owes child support for Dale commencing September 1, 2015. The respondent wants the support to last to the end of this year. The applicant disagrees.

6The incomes of the parties for 2015 were: applicant $75,238 and respondent $125,399.61.

7The respondent agrees that an equalization payment is owed to the applicant in the amount of $142,313.30 ($159,204.30 - $16,891). The applicant requests prejudgment interest but the respondent argues that no prejudgment interest is legally payable.

8A case conference was held on January 8, 2016.

9There are three motions brought by the parties. Two motions brought by the applicant and one motion brought by the respondent.

10The issues to be adjudicated on these motions are:

(a) Is the respondent responsible to pay child support for Aryn when she was in his care for his summer visitation with her? (b) Is the respondent obligated to pay spousal support to the applicant and if so, the amount of that support and when does it commence? (c) When does the child support to be paid by the applicant to the respondent for Dale commence and end? (d) Is the respondent responsible to pay interest on the equalization payment owed to the applicant which is being paid by way of a pension transfer?

11For the reasons below, I answer the issues as follows:

(a) The respondent is responsible to pay child support for Aryn for the months May to August 2015 with no deduction. (b) On a temporary basis, the respondent is obligated to pay spousal support to the applicant in the amount of $500 per month from January 1, 2016 to December 31, 2016 and commencing January 1, 2017, the sum of $1,600 per month. (c) Child support for Dale commences September 1, 2015 and ends on December 31, 2016. (d) The respondent shall pay an equalization payment of $142,313.30 plus prejudgment interest at the rate prescribed by the Courts of Justice Act, 1.3%, from the date of separation, January 1, 2012 to the date of this decision.

A. Is the respondent responsible to pay child support for Aryn when she was in his care for his summer visitation with her?

12The applicant and respondent both agree that Aryn was residing with the applicant and further agree that the income of the respondent for child support purposes was $122,964.

13Aryn resided with the applicant from May to September 2015. During these four months, the respondent had summer parenting time with Aryn. The respondent submits that while he had Aryn for the summer he is not obligated to pay child support to the applicant.

14I disagree. The respondent has not directed the court to any authority for this submission.

15The support being paid by the respondent is for the benefit of the Aryn. The respondent’s time with Aryn during the summer was the agreed upon summer parenting time schedule. This on its own, in my opinion, does not vitiate the obligation to pay child support for Aryn during the time the respondent had Aryn.

16Based upon the income of the respondent, his obligation for monthly child support is in the sum of $1,060 per month for four months. The respondent has paid $2,310. This leaves the respondent with the amount of $1,930 owing in arrears. This amount of arrears is owed by the respondent to the applicant.

B. Is the respondent obligated to pay spousal support on a temporary basis to the applicant and if so, the amount of that support and when does it commence?

Position of the Parties

17The applicant takes the position that spousal support is owed by the respondent based on section 15.2 of the Divorce Act. The marriage is over 24.5 years. There are three children of the marriage.

18The applicant was the primary caregiver of the children. She took time off work after each child was born. Further, she did not pursue a career as a pharmacist because of the marriage and resulting children and aided the respondent with his career advancement studies and fence and deck construction business.

19The respondent argues that the applicant is self-sufficient. The applicant did not incur any disadvantage due to the breakdown of the marriage. She makes a good income. She worked throughout the marriage. There is no entitlement of spousal support. If this court does find there is an entitlement of spousal support, the amount is very minimal for the applicant has not shown a need or deficiency in the living expenses to require an award of spousal support.

20The respondent submits that the applicant does not qualify for spousal support pursuant to section 15.2 of the Divorce Act or sections 31 and 33 of the Family Law Act.

Law and Analysis

21Section 15.2 of the Divorce Act deals with the granting of spousal support orders on an interim and final order basis. The section also sets out factors the court is to take into consideration in making an order as well as the objectives of spousal support.

22Further, in determining spousal support, I am agreeable with respect to the contextual approach as set out in Driscoll v. Driscoll and Robles v. Kuhn.

23Principles the court would examine in determining interim spousal support motions include:

(a) The recipient’s needs of a payor’s ability to pay are seen as a greater significance; (b) The interim order would attempt to be sufficient to allow the recipient to continue living at a same standard of living prior to separation if the payor’s income ability to pay also allows it; (c) The court should not embark on an indepth analysis of a party’s circumstances. This should be left to trial. At best, the court achieves a form of rough justice; (d) The court would not over or unduly emphasize any one of the statutory conditions as set out above; (e) The need to achieve self-sufficiency is often of less significance; (f) The interim spousal support amount ordered may be within the range as suggested by the Spousal Support Advisory Guidelines (“SSAG”) unless exceptional circumstances indicate a variance from those guidelines; (g) Interim support may be ordered when it can be said a prima facie case for entitlement exists; and (h) Whether there is a need to resolve uncontested issues of fact, especially those connected with the threshold question such as entitlement, it becomes less than advisable for a court to make an interim order for support.

24The above list is not an exhaustive list but is an indication of what principles the court examines in determining spousal support on a contextual analysis. See also Charbonneau v. Charbonneau and Pitchforth v. Pitchforth.

25Traditionally, on an interim basis, spousal support analysis has been based upon a need and means analysis. The analysis concentrates on budgets, current and proposed expenses and incomes. However, with the advent of the Spousal Support Advisory Guidelines (“SSAG”) a strict need and means analysis can be avoided. In King v. King, Vogelsang J. examined the use of the SSAG on interim orders. At paragraph 12 of that decision, Vogelsang J. quoted point 5 of the Spousal Support Advisory Guidelines: The Revised Users Guide 2016:

…The SSAG formulas reflect both compensatory and non-compensatory bases of entitlement, and their extensive use in the interim context shows that interim awards may also address compensatory objectives. In general both compensatory and non-compensatory claims should be considered at the interim stage, despite some court’s insistence otherwise.

26Courts are using the SSAG to quantify spousal support on an interim basis. See Pagnotta v. Malozewski; B.D.C. v. M.C.M.; Drouillard v. Drouillard; K.D.B. v. J.D.M.; Feeney v. Brown; Graves v. De Felice. I adopt the approaches of those cases in using SSAG as a tool to quantify interim spousal support, unless the factual circumstances of a case dictate otherwise. I do find that in the circumstances of this case, if spousal support is warranted, the SSAG is an appropriate tool to use to quantify the amount of spousal support.

27However, is spousal support warranted?

28In examining the purposes and objectives of spousal support and that my analysis is on an interim basis, I find that there is a prima facie entitlement of spousal support to the applicant. The factors I took into consideration on this motion are: the ages of the parties, the years of marriage and cohabitation, the difference in incomes, the advancement in career of the respondent, the ages of the children, and the aspirations of career of the applicant before and after the birth of the children.

29Taking all these factors into consideration, on an interim basis, prima facie, the applicant is entitled to spousal support. I acknowledge the incomes of the parties. Self-sufficiency is not a factor I put much weight on for this motion. The strength of the factor of self-sufficiency along with the strength of the applicant’s claim for compensatory support will have to be determined by the trial judge. The trial judge will be in a much better position to determine, after hearing all the evidence, the weight of self-sufficiency, the strength of the compensatory support claim and the commencement of spousal support on the date of separation date or some other date.

30For the purposes of this motion, I find the commencement of the spousal support to be around the date of the case conference, January 1, 2016.

31The next question is the amount of spousal support to be paid.

32The applicant has provided numerous cases that order spousal support utilizing the mid-point figure from the SSAG. The cases, however, are generally decisions after a trial and not on a motion.

33The SSAG calculations I have been provided are: (a) with no child support, income of applicant $75,238 and respondent $125,400 is low, $1,505; mid $1,756 and high $2,006; (b) with child support for Dale paid by the applicant: low, $68, mid $544 and high $1,034.

34There is no question that the applicant should pay child support for Dale and he is still a child of the marriage. Based on the applicant’s income of $75,238, child support for Dale is $684 per month.

35Accordingly, with child support for Dale being paid by the applicant, the quantum of spousal support to be paid by the respondent to the applicant, I find in the circumstances is $500 per month, commencing January 1, 2016.

36When child support for Dale ends, I find that the amount for spousal support to be paid by the respondent to the applicant is $1,600 per month.

C. When does the child support to be paid by the applicant to the respondent for Dale commence and end?

37Dale is still a child of the marriage and is scheduled to finish his education in August 2016. The respondent requests that child support should not end until the end of this year to allow Dale time to obtain employment and because he paid child support for Aryn for four months after she graduated from nursing school.

38The applicant agrees to pay child support for Dale but indicates that the support should end when Dale obtains full time employment or on December 31, 2016, whichever is earlier.

39In reality, we are probably looking at a month or two difference in child support. I agree with the position of the respondent. The applicant did not dispute that the respondent paid support for four months for Aryn. I see no reason why that agreement should not apply to Dale.

40I therefore find that the applicant’s obligation to pay child support for Dale ends on December 31, 2016.

41Both parties have agreed that child support for Dale commences when he went back to school, September 1, 2015.

D. Is the respondent obligated to pay interest on the equalization payment owed to the applicant which is being paid by way of a pension transfer?

Position of the Parties

42The applicant took the position that the court has the discretion to order prejudgment interest pursuant to the Courts of Justice Act. On the circumstances of this proceeding, there is no reason that the court should not order prejudgment interest because it is to be paid on an equalization payment owed to the applicant. The date for commencement of the prejudgment interest should be the date of separation because that is the date the monies are owed.

43The respondent submits that because the means of payment of the equalization payment is by way of a pension transfer, no prejudgment interest is owed. And if prejudgment interest should be owed, it should not commence until the amount of the equalization payment has been determined. It is the respondent’s position that the earliest is the date of the case conference.

Law and Analysis

44Neither the applicant nor the respondent provided the court with any authority for their respective positions.

45The awarding of prejudgment interest is discretionary. As a general rule, prejudgment interest is owed by the payor on equalization payments. See Burgess v. Burgess. However, prejudgment may not be owing if the payor could not use the asset prior to trial, the asset generates no income and the payor has not delayed the case. See Burgess v. Burgess; Fielding v. Fielding.

46J. MacKinnon J. in the case of Bertrand v. Bertrand found that prejudgment interest is payable on a pension governed by the Pension Benefits Division Act (PBDA). At paragraph 67 of his decision, J. MacKinnon J. states:

Accordingly, I find that the availability of a transfer under the Pension Benefits Division Act with reference to this pension and this equalization payment distinguishes the case from Burgess, supra, and that the general rule that the Applicant should have prejudgment interest on the equalization payment is applicable.

47Section 67.3 of the Pension Benefits Act provides authority to allow the payor spouse to pay by lump sum transfer to a non-member spouse upon separation.

48I adopt and agree with the reasoning of J. MacKinnon J. in Bertrand v. Bertrand. The respondent had the ability to transfer a lump sum to the applicant to satisfy the equalization payment. The obligation to pay an equalization payment was on the date of separation being the date the pension would be required to be valued. From the date of valuation, the respondent has benefited from the applicant’s portion being increased over that period of time.

49Further, I do not find that the applicant delayed this proceeding. Mediation was attempted but failed. A two year period elapsed during the negotiation of a new contract between the City of Barrie and the Fire Fighter’s Union which the respondent is a member.

50I therefore see no reason why prejudgment interest should not be paid.

51Consequently, the commencement date of the interest being accrued is the date of separation, January 1, 2012. This date is not in dispute.

52The next question to be answered is how the payment is to be made. I agree with J. MacKinnon J. on the method of payment. The prejudgment interest payment is to be paid by the respondent to the applicant by way of cash, certified cheque or money order.

Disposition

53Accordingly, I make the following order:

(a) The respondent is to pay to the applicant for child support arrears in the amount of $1,930 within 30 days. (b) The applicant is to pay child support of Dale commencing September 1, 2015 in the amount of $684 per month based on an annual income of $75,238 and ending on December 31, 2016. (c) The respondent is to pay spousal support to the applicant in the amount of $500 per month from January 1, 2016 to December 31, 2016 and then $1,600 commencing January 1, 2017 until further order from this court. (d) The respondent is to pay an equalization payment of $142,313.30 to the applicant plus prejudgment interest at the rate of 1.3% commencing January 1, 2012. The prejudgment interest payment to be made by cash, certified cheque or bank draft, or any other means as the parties may agree.

Costs

54If the parties cannot agree on costs, the applicant to serve and file her written submissions of costs for the motion, within 30 days from the date of this decision and the respondent will have 30 days thereafter to serve and file his written submissions. The submissions to be no more than three pages, double spaced, exclusive of any cost outline, case law or Offers to Settle. Submissions are to be filed with the court. If no submissions are received within the time period set out herein, an order will be made that there will be no costs.

Justice P.W. Sutherland

Released: September 7, 2016 Corrigendum: September 9, 2016

CORRIGENDUM

1. Paragraph [46] has been amended by deleting the word (unreported) in the first line and replacing it with footnote 12 to include the citation for Bertrand v. Bertrand.
2. In paragraphs [46], [48] and [52], the spelling of MacKinnon J.’s name has been corrected to J. MacKinnon J.