CITATION: Grawbarger v. Grawbarger, 2016 ONSC 6043
NEWMARKET COURT FILE: FC-16-50150-00
DATE: 20160926
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Norman Patrick Grawbarger
Applicant
Gordon F. Allan, for the Applicant
- and -
Sherry Ann Grawbarger
Respondent
Mahvish H. Mian, for the Respondent
HEARD: September 21, 2016
RULING ON MOTIONS
JARVIS J. :
Introduction
[1] The applicant husband (“the husband”) seeks an Order for the sale of the parties’ jointly-owned matrimonial home. The respondent wife (“the wife”) has no issue with respect to listing the home for sale but wishes that any Order for sale be deferred until there has been a more robust evidentiary determination of her husband's income. She claims spousal support. The husband contends that his income is about $22,000 a year: the wife claims it is $50,000 a year.
[2] The parties have modest means. They were married August 21, 1993 and separated on or about November 1, 2014. There are two children, both adults. The son lives with his father and the daughter with her mother. Neither child is an eligible child support recipient. The parties’ principal assets are the matrimonial home and the husband's pension. Although there is no formal appraisal of the home, the parties estimate that it is worth between $535,000 to $550,000. It is encumbered by a mortgage, having an outstanding balance of between $275,000 to $278,000. After taking into account anticipated realtor’s commission and expenses reasonably associated with any sale, there is about $245,000 available for distribution to the parties.
Support
[3] The principal dispute is the husband's income. He has worked as an insulation installer for the same employer for over 20 years. Although for all intensive purposes he could be viewed as an employee, the nature of his remuneration more closely resembles that of an independent contractor. His gross income and net income (after business expenses) for 2014 to 2016 are as follows:
Gross Income Net Income
2014 $77,932.75 $27,425.82
2015 $73,393.73 $22,122.00
2016 Estimated to be the same, if not slightly less than 2015.
[4] In reviewing the husband's expenses for 2015, he deducted meal and entertainment expenses ($1,300); legal, accounting and other professional fees ($1,130); rent ($2,000); telephone and utilities ($1,440); motor vehicle expense ($7,713.11); capital cost allowance ($2,359.40); storage costs ($6,000) and working clothes and tools ($1,200). These expenses total $23,142.51. Also deducted from the husband's gross income is his cost of goods sold.
[5] The husband argued that his business expenses complied with the Income Tax Act and that his qualifying support income should be his net income. Overlooked is the fact that what may be an allowable expense for calculating taxable income is different from what is permitted for support determination purposes.
[6] The wife alleges that many of these expenses have a personal component, or do not represent any real out-of-pocket expense impacting the husband’s cash flow. I agree. Accepting that the husband's 2016 income should be about the same as 2015, there should be added back to the $22,122 net income earned in 2015, for 2016 spousal support determination purposes, the sum of $12,199 calculated as follows:
(a) $650 (for 50% of meals and entertainment);
(b) $900 (for legal, accounting and other professional fees);
(c) $2,000 (rent: this is for the husband's living accommodations);
(d) $1,440 (telephone and utilities);
(e) $3,850 (approximately one-half of the husband's motor vehicle expenses);
(f) $2,359 (capital cost allowance); and
(g) $1,000 (working clothes and tools).
[7] Those components of the expenses deducted and which shall be added back to the husband's income are estimates only. For some expenses, such as the capital cost allowance, the husband acknowledged that he did not actually incur any out-of-pocket expense. Other expenses such as meals and entertainment, professional fees, rent, telephone and utilities, partially or wholly represent expenses of a personal nature not permitted an arm's-length employee. It was unclear how or why, given the husband’s relationship with the same employer for over two decades, he needed to incur the expenses claimed to earn income.
[8] There shall be attributed to the husband an income for temporary support purposes of $34,321.
[9] The wife claims that her 2016 income will be about $26,376. The husband suggests that an income of $30,000 should be imputed to her but, unlike him, she is employed by an arms-length third party. For the purposes of this motion, her income is $26,736.
[10] In Doering v. Doering, G.A. Campbell J. commented on the challenges to the court and parties where temporary Orders are requested very early in proceedings.
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] Taking into account the length of the parties’ marriage and the fact that the husband historically earned more than the wife, he should pay her $278 monthly for spousal support on a temporary basis.
Sale of Matrimonial Home
[12] Apart from the issue of her need for spousal support, the wife has no other reason why the matrimonial home should not be listed, and exposed, for sale at this time. In any event, this court has no jurisdiction to award a joint owner a preferential right of purchase of the owner’s interest. Even if this court was inclined to temporarily defer a sale Order to give the wife time to explore her options to purchase her husband’s interest in the property, her circumstances are not such that she would be able to secure the funding needed.
Disposition
[13] An Order shall issue as follows;
The husband shall pay to the wife temporary spousal support in the amount of $278 monthly starting October 1, 2016 and monthly thereafter on the first day of each and every succeeding month until further Order.
The matrimonial home shall be forthwith listed for sale and sold. In the event of any dispute involving the sale or any of its terms either party may move by way of 14B motion on 7 days’ notice to the other party for directions from me.
[14] Success has been divided. In the event that costs are sought then the parties shall by no later than October 13, 2016 file their written submissions in the Continuing Record. The submissions shall not exceed three double-spaced pages. Bills of Costs, Offers to Settle (if any) and Authorities upon which a party may be relying shall be filed by that date too but not form part of the Record.
Justice D.A. Jarvis
Date: September 26, 2016