Court File and Parties
CITATION: Doering v. Doering, 2016 ONSC 593
COURT FILE NO.: 49542-14
DATE: 2016-01-25
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Andrea Dawn Doering, Applicant
AND:
Charles Leonard Doering, Respondent
BEFORE: The Honourable Mr. Justice G. A. Campbell
COUNSEL: Laura Tatum, counsel for the Applicant
Barry T. Paquette, counsel for the Respondent
HEARD: January 19, 2016
ENDORSEMENT
[1] The parties’ marriage lasted 16 years and ended on September 1, 2013. They have two girls, Bethany, now 20 and Rebecca, now 17. They have other adult and independent children from previous relationships.
[2] The Applicant seeks spousal support for herself and child support for Rebecca. The issue to be determined is not need or entitlement but quantum of support.
[3] The Applicant has, just this week, obtained full-time employment of $26,000 per year.
[4] On a motion for temporary support inter alia, I need not address retroactive spousal nor child support. I leave those issues to be determined by the trial judge.
[5] The Respondent is a Re-Max real estate agent. In 2012 (before separation) he claimed a Line 150 income (including RRSP “income” of $82,256.40 cashed out) of $67,420. He claimed a loss of business income of $16,635. ( from a gross business income of $29,900)
[6] In 2013, the year of separation, the Respondent’s Line 150 income was claimed at $108,600, which included a net commission income of $51,173 (from a gross of $119,000) and cashed RRSPs of $60,000.
[7] In 2014, the Respondent’s Line 150 income claimed was $97,984, comprised of a net commission income of $82,391 (from a gross of $170,219) and $25,296 cashed RRSPs.
[8] In 2013 and 2014, the Respondent claimed a loss of $2,663 and $9,824 from the rental of the 100 acres adjacent to the matrimonial home, in which he, his adult son and his own mother live exclusively, having changed the locks and blocked the Applicant from access to or any enjoyment of that jointly owned home and farm property.
[9] The Respondent’s 2015 income is, as yet, somewhat confusing since his income tax return is not due; the last pay stubs; the Re Max Realty tax worksheet and the farm revenues/losses have not been collated or co-ordinated. There has not been questioning under oath on the amounts alleged and (at least) one of the amounts shown on the Re-Max tax worksheet as an “advance” of $35,000, the Respondent alleges he spent on advertising (in addition to the other identified specific line items for advertising totalling over $24,700).
[10] As Pazaratz J. observed in Coe v. Tope (2014) ONSC 4002, on early motions for temporary relief, materials are often hastily prepared, incomplete and contested. Facts are often still evolving. In that context, temporary orders are meant to provide a reasonably acceptable solution on an expeditious basis for problems that will be more fully canvassed at later stages in the process (see Brown v. Brown (1999), 450R (3d) 308 and Neilipovitz v. Neilipovitz (2014) ONSC 3889).
[11] On that basis, I am unwilling to base any temporary order on the 2015 yet-to-be compiled, full income disclosure documentation. I prefer to use the 2014 income information upon which to base the spousal and child (Guideline + s.7) support.
[12] In that regard, despite the disagreement between the parties of who “got” the cashed (spousal) RRSP amount of $25,296 in 2014, I accept and order spousal/child support based upon a net (after RRSP deduction) income amount for the Respondent of $72,667 and $26,000 for the Applicant for going-forward support. The issue of whether the annual cashing of RRSP investments by the Respondent should/should not be included as income in his hands is left to the trial judge or further motion
[13] Hence I order child support of $662/month from January 1, 2016, plus pro-rated s.7 expenses based upon the above numbers and spousal support based upon the SSAGs ‘high’ end of the range of $808 from January 1, 2016, until questioning under oath is completed and the 2015 actual income disclosures are available and an agreement is achieved or a new court order is obtained.
[14] In that respect, I therefore grant leave to both parties to question the other under oath.
[15] I have chosen to order the high end of spousal support for several reasons, not the least include the reality that the Applicant has not yet started her new $26,000 per annum employment and has only earned income lately at the annual rate of $19,796; the Respondent is in control of virtually all of the party’s assets (the matrimonial home, the farm rental property and, effectively, the cottage). He pays no occupational rent to the Applicant although others are enjoying the benefit of her ½ of the equity in the matrimonial home. I am not advised whether either of those people are paying anything for that largesse.
[16] I further order the Respondent to roll over or; if he chooses, to cash out and pay the proceeds from the entire remaining RRSP balance of, he says, between $45,000 and $50,000, forthwith, before the end of February as an advance on her equalization payment. Once he has done so, I rule that that payment shall be considered a factor in any re-adjustment of the level of spousal support that the parties wish to consider.
[17] In light of that last part of my order, the cases of Silva v. Silva (1990) 6718 (OCA), Kereluk v. Kereluk (2004) 2004 34595 (ON SC), 9 R.F.L. (6th) 385, Walters v. Walters 1992 8599 (ON SCDC), 92 D.L.R. (4th) 398 and Martin v. Martin (1992) 7402 (OCA) and two other factors; that is:
(a) the Respondent seeks to buy out the Applicant’s interest in the matrimonial home and has made a preliminary offer in that regard (although his numbers need re-calculating since he made a mistake in the amount of the Applicant’s valuation of the property); and
(b) the Respondent alleges that there is sufficient joint indebtedness pledged against the property (as yet to be proven) that there is very little equity left to be divided.
I decline to accede to the Applicant’s request that the matrimonial home and adjoining farm rental property be ordered to be listed and sold before trial.
[18] The sale of the cottage near Sudbury in mid-winter presents a dilemma, especially given the Respondent’s experience and chosen field of employment. Despite his obvious self-interest; bias to benefit himself; and need to control the disentangling of the various matrimonial assets one from the other, both parties want the cottage sold, for the highest amount, as soon as possible. While I recognize that Mr. Chad Moore, the Sudbury agent, believes he could sell the property for $429,900 ($30,000 more than what the Respondent has been advertising the cottage property for in all appropriate media, both in the north and in this area), I can find no obvious reason why I should not let the Respondent to “press-on” with his efforts in that respect. After all, the parties can save paying an arms-length agent a real estate commission of around $25,000 if the Respondent sells it himself. I assume, of course that he will not be claiming such a commission from himself and the Applicant.
[19] Accordingly, although I encourage counsel to negotiate some compromise regarding the cottage sale efforts (perhaps Mr. Moore will agree to the Respondent’s terms or to co-broke the listing), I make no further order regarding the cottage. Access to the cottage by the Applicant at this time of year (with Rebecca again in her care and a new job) is unnecessary.
[20] That set of circumstances will change in the spring and without an agreement, the court will have to intervene, both regarding the listing and the Applicant’s free access to and use of the cottage property and contents.
[21] No one raised the issue of the Applicant retrieving any/more of her personal property from the matrimonial home at the motion. I make no order in that respect.
[22] Lastly, I encourage the Respondent to make a new, recalculated offer to the Applicant regarding the matrimonial home. If she is unwilling to accept any new offer from him, I encourage her to make a counter offer to the Respondent.
[23] Success appears to have been mixed or partial. But I have not seen the Rule 18 Offers to Settle. Much depends on those.
[24] I encourage counsel to negotiate the costs issue. If resolution is not achieved, I will accept Ms. Tatum’s brief (less than five pages) written submissions plus offer(s), costs outline and dockets within 15 days. Mr. Paquette may respond similarly within 10 days and Ms. Tatum may reply thereto within 5 days.
[25] I decline to accede to the Applicant’s request that the matrimonial home and adjoining farm rental property be ordered to be listed and sold before trial.
G.A. Campbell J.
Released: January 25, 2016