Court File and Parties

COURT FILE NO.: FC-11-038449-00 DATE: 20160930 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

KELLIE WHALEN-BYRNE Applicant – and – TIMOTHY RAPHAEL BYRNE Respondent

Counsel: Christina Doris, for the Applicant S. Lawrence Liquornik, for the Respondent

HEARD: Written Submissions

SUPPLEMENTARY REASONS FOR JUDGMENT ON LIFE INSURANCE AS SECURITY FOR SUPPORT, TIMING OF PAYMENTS OF RETROACTIVE SUPPORT AND POST-TRIAL ACCOUNTING

DOUGLAS, J.

[1] In my Reasons for Judgment dated February 17, 2016 I invited written submissions regarding:

a. Whether there is any impediment to the Respondent securing life insurance as security for support; b. The appropriate quantum or face amount of the life insurance; c. Timing of payments of retroactive child and spousal support; d. Post-trial accounting of payments of Respondent to Applicant for which credit is sought.

[2] I have received and reviewed the written submissions of the parties on these issues. Delays in receipt of the Respondent’s submissions have delayed release of these Rulings. I understand that the parties were exploring other dispute resolution options. There is disagreement about how those discussions unfolded but such is not relevant to my purpose here. Suffice to say the issues addressed herein have not been resolved through agreement of the parties.

Life Insurance Issues

[3] There is no evidence that the Respondent has life insurance.

[4] For the reasons set out in my Reasons for Judgment, I am satisfied that I have the authority to order under the Divorce Act that the Respondent secure and maintain life insurance as security for his support obligations.

[5] There is no evidence that there is any impediment to the Respondent securing life insurance as security for support; on the other hand, there is no evidence that there is no such impediment.

[6] Similarly there is no evidence as to the expense associated with any possible plans of life insurance for which the Respondent might qualify.

[7] The Respondent takes the position that he is not capable of purchasing life insurance coverage based on health impediments and other issues. It is further submitted that as there was no evidence led by the Applicant on this issue at trial, no order should be made.

[8] The Applicant asks in her submissions for the right to review any medical files of the Respondent and to cross-examine him on this issue. I treat this as a request to re-open the trial.

[9] I have conducted a trial and received evidence and submissions. The issue of life insurance was an issue before me throughout. It is clear the evidentiary record is deficient regarding this issue.

[10] The overriding objective in civil trials is to do justice between parties by making a just decision on the merits.

[11] In the circumstances before me I have issued Reasons for Judgment on certain issues, while inviting written submissions on costs and the issues set out above, including life insurance. Judgment has not yet been entered regarding the issues on which I have ruled. I made it clear in my Reasons that there were shortcomings in the evidence regarding life insurance. In such circumstances it is within my authority to alter or set aside my disposition, assuming that might be necessary (see R. v Adams, 1995 SCC 56, [1995] S.C.J. No. 105, 103 C.C.C. (3d) 262 at para. 29). After judgment is announced but before it is entered the trial judge has discretion to reopen the trial, but this discretion must be exercised “sparingly and with the greatest care so that fraud and abuse of the Court’s processes do not result” (see 671122 Ontario Ltd. v Sagaz Industries Canada Inc., 2001 SCC 59, [2001] S.C.J. No. 61 [2001] 2 S.C.R. 983).

[12] Rule 53.10(3) of the Rules of Civil Procedure (to which I refer in the absence of similar provisions under the Family Law Rules) provides that “The trial judge may at any time direct that a witness be recalled for further examination.”

[13] Rule 52(10) allows for proof of a fact or document “…afterwards at such time and on such terms as the judge directs…” where a party fails to prove some material fact or document through “accident, mistake or other cause.”

[14] While it would have been preferable to have received the necessary evidence earlier, there is no basis to conclude that any fraud or abuse of the court’s processes would result by my inviting further evidence on the life insurance issue. Any prejudice to either party can be addressed by way of costs.

[15] Further orders to go as set out below as a consequence of the foregoing.

Timing Of Retroactive Payments (and Applicable Tax Rates) and Adjustments Post Trial

(a) Child Support

[16] According to my Reasons for Judgment retroactive child support is payable by the Respondent to the Applicant in the amount of $83,942.00 calculated through December 31, 2015.

[17] The Applicant has submitted that there ought to be accruals in the amount of $3187.00 per month for the months of January and February 2016. The Respondent does not disagree with this submission.

[18] The Applicant proposes that the Respondent receive credits for payments to her benefit for the months of January and February 2016 in the total amount of $4,182.46. Again, the Respondent does not disagree with this submission.

[19] Therefore, as of March 1, 2016 the amount of child support owing by the Respondent to the Applicant is:

$83,942.00

• $3,187.00 (January 1, 2016 accrual)
• $3,187.00 (February 1, 2016 accrual)

• $4,182.46 (calculated per para. 23 of Applicant’s submissions regarding credits for payments by Respondent to Applicant’s benefit in the months of January and February 2016)

Grand net total: $86,133.54 as of February 29, 2016

[20] The Applicant submits that this sum should be paid by the Respondent to the Applicant by June 1, 2016.

[21] The Respondent submits that child support arrears should be paid over 84 months in equal instalments (i.e. $1,025.39 per month).

[22] Child support, it is trite to say, is the entitlement of the children. As such its payment carries a more compelling imperative than does payment of spousal support. Arrears of child support thus represent monies of which the child has been deprived. The Respondent’s resources are in my view capable of bearing the following payment schedule:

a. $21,533.39 by December 1, 2016; b. $21,533.39 by March 1, 2017; c. $21,533.39 by June 1, 2017; d. $21,533.39 by September 1, 2017.

(b) Spousal Support

[23] According to my Reasons for Judgment retroactive spousal support is owing by the Respondent to the Applicant in the amount of $178,931.00 calculated through December 31, 2015.

[24] The Applicant submits that accruals of $9858.00 per month out to be applied for the months of January and February 2016.

[25] The Respondent does not dispute this submission.

[26] The Applicant submits that gross income received by the Applicant from the Respondent through his business in the amount of $7750.00 per month for the months of January and February 2016, totalling $15,500.00, ought to be credited against the Respondent’s obligation in this regard.

[27] Again, the Respondent does not dispute this submission.

[28] Therefore, total retroactive spousal support owing by the Respondent to the Applicant as of February 29, 2016 is calculated as follows:

$178,931.00

• $9,858.00 (January 1, 2016 accrual)
• $9,858.00 (February 1, 2016 accrual)

• $15,500.00 (Gross income from Respondent for January and February 2016)

Grand net total: $183,147.00 as of February 29, 2016

[29] The Applicant proposes a payment schedule as follows:

a. $54,216.00 less 30% tax equals $37,951.00 payable on June 1, 2016 b. $50,000.00 less 30% tax equals $35,000.00 payable on June 1, 2017 c. $50,00.00 less 30% tax equals $35,000.00 payable on June 1, 2018 d. $38,931.00 less 30% tax equals $27,251.70 payable on June 1, 2019

[30] The Respondent proposes a payment schedule of 84 equal monthly payments (i.e. $2,180.32 per month).

[31] Rather than considering evidence of tax rates not presented at trial (applicable in discounting any possible lump sum spousal support payments) the preferred approach is to require that the Respondent make periodic payments in retirement of his retroactive spousal support obligation. He proposes that such payments be spread over seven years. The Applicant prefers payments over three years.

[32] In my view the Respondent’s resources suggest a reasonable period of repayment would be five years (i.e. $183,147/60 months = $3,052.45 per month). The payments will, I expect, be taxed by CRA at applicable rates.

Conclusion

[33] I will defer my Ruling on Costs until the life insurance issue has been addressed.

[34] For the foregoing reasons, further judgment to issue as follows:

(a) By December 2, 2016 the Applicant shall provide to the Respondent affidavit evidence in support of her claim for life insurance on the life of the Respondent as security for support; (b) By December 16, 2016 the Respondent shall provide to the Applicant responding affidavit evidence in support of his position on the issue of life insurance as security for support; (c) By December 23, 2016 the Applicant, if desired, shall provide to the Respondent affidavit evidence by way of reply to the Respondent’s responding affidavit evidence; (d) By January 13, 2017 each party shall confirm in writing to the other whether either party wishes to cross-examine the other on their evidence on the life insurance issue; (e) Should either party wish to cross-examine the other on this issue the parties shall contact the Trial Coordinator to schedule a teleconference with me to discuss the parameters of a hearing on this issue. (f) Should neither party wish to cross-examine the other the parties may make brief written submissions on the life insurance issue or speak to the Trial Coordinator to schedule a hearing or teleconference with me. (g) Arrears of child support owing by the Respondent are fixed in the amount of $86,133.54 as of February 29, 2016, to be paid to the Applicant as follows:

a. $21,533.39 by December 1, 2016; b. $21,533.39 by March 1, 2017; c. $21,533.39 by June 1, 2017; d. $21,533.39 by September 1, 2017.

(h) Arrears of spousal support owing by the Respondent are fixed in the amount of $183,147.00 as of February 29, 2016 to be paid to the Applicant at the rate of $3,052.45 per month for a period of 60 months commencing November 1, 2016.

Douglas J. Released: September 30, 2016