CITATION: Julie Ann McBeth-Wilson v. Trevor Frarey Dodds, 2016 ONSC 706
COURT FILE NO.: FC267/15
DATE: 2016-01-29
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Julie Ann McBeth, Applicant
AND:
Trevor Frarey Dodds, Respondent
BEFORE: A.P. Ingram, J.
COUNSEL: Paula Armstrong, Counsel, for the Applicant
Curtis Piniero, Counsel, for the Respondent
HEARD: January 25, 2016
ENDORSEMENT
[1] Julie Ann McBeth-Wilson and Joseph Dodds resided together for at least 22 years commencing in 1991. The parties disagree as to their date of separation; March 2013 or April 2014. The parties had three children; Carley, born December 10, 1991, Joseph, born March 5, 1998, and Katelyn, born October 12, 2002.
[2] In this motion Ms. McBeth-Wilson seeks:
(a) child support for the two youngest children who reside primarily with her and are in full time attendance at school, and
(b) spousal support
[3] The Applicant remains in the jointly owned home that the parties shared together. All three children reside with her although Carley is not in school. Carly is not working and appears financially dependent upon her mother.
[4] Joseph, as is frequent in divorce situations with teenagers, has not had a consistent residency pattern, spending most of his time with his mother, but periods with both his father and with friends.
[5] The Applicant receives a disability pension of $31,260.00. She seeks child support only for the two children who are in school although the three children reside with her.
[6] This is a long term relationship that produced three children. The Applicant clearly has a need and the Respondent has an ability to pay. The Applicant was likely the primary parent for the children.
[7] He claims (paragraph 5 of his January 21, 2016 affidavit) that he has provided his family since the separation:
(a) $33,809.66 March 1, 2013 to Feb 28, 2014 ($2,817.47.00 per month)
(b) $56,356.24 March 1, 2014 to Feb 28, 2015 ($4,696.35.00 per month)
(c) $22,141.01 for nine months March 1, 2015 to Nov30/15 ($2,460.01 per month)
[8] In paragraph 6 of the same affidavit, he continues, “ It is important to note that these documents do not include the following additional expenses that I also pay to the benefit of the home:
a. Insurance
b. Satellite television
c. Repairs to the Applicant’s motor vehicle
d. Internet
e. Firewood
f. Repairs (including the replacement and installation of a new furnace)”
[9] In another document (affidavit of Julie McBeth of November 13, 2015), in exhibit D she includes a list prepared by Mr. Dodds of his alleged monthly family expenditures in the amount of $4,271.07.
[10] While there is no doubt that he has provided for his family, itemized receipts for these expenditures have not been produced and the Applicant would dispute that all of these expenditures were for the family. As an example, he attributes $1,200.00 spent monthly on the family for servicing a line of credit even though it is not registered against the family home property, part of his business operation is on the property and there is less than $85,000.00 owing on this debt?
[11] He has made these payments without the tax relief given to those who pay spousal support.
[12] The law on child and spousal support does not provide that the payor may determine how the monies are to be spent. For this family, his control over expenditures is a form of control over his wife, with whom he does not live. Support recipients are caused additional stress when quantum and timing of support payments are left to the discretion of the payor. She has the right to determine how and when to spend the support that she is legally entitled to.
[13] The difficulty for the parties in resolving the support issue is the determination of the Respondent’s income. He wishes to use the income figure used for income tax purposes, $70,662.00.
[14] It is not clear what his income is. The Respondent operates an automotive business. His financial records appear to co-mingle his personal affairs, including payments for a child of a former relationship, his three rental properties, his business and his payments to support the Applicant and their children. He appears to operate his rental properties at a loss.
[15] The Applicant’s position is that her husband’s reported income is not accurate for several reasons:
(a) she claims that part of his business is done on a cash basis, based on her observations over the past 22 years, the number of locked boxes that he kept and the fact that he claims he had unexplained cash of at least $19,500.00 in the family home;
(b) he has been able to acquire and maintain three other residential properties;
(c) he has been able to get financing which she suggests he does by using a higher income figure than shown on his income tax statements. (As an example, one showed an income of $110,876.00 although he indicates that it was including gross rental income with no deductions). He has failed to produce all of his credit applications.
[16] The Respondent puts forward a confusing financial picture. In his material, the Respondent lists many expenses without providing any receipts and in some cases no identification at all as to what the numbers correspond to.
[17] The Applicant seeks support based on the income figure of $110,876.00 that he used in one credit application. This would provide child support of $1,549.00 per month and spousal support in the mid-range of $1,108.00 per month. These totals are not dissimilar, perhaps less than what he claims he is already paying, and by making it into a court order he will receive some tax relief and no longer be fully responsible for the children’s section 7 expenses which can now be apportioned.
[18] The court has considered clauses 19(1)(c),(d),(e) and (f) in imputing income to the Respondent.
[19] Upon this order being made, the Applicant will become responsible for payment of the family home expenses, but not for the portion related to the Respondent’s business.
[20] This order will not be made retroactive as it is clear that the Respondent has been covering many of the expenses of the family.
The Respondent, Trevor Dodds, shall pay temporary child support of $1,549.00 per month based on a payor annual income of $110,876.00 for Joseph Dodds, born March 5, 1998 and Katelyn Dodds, born October 12, 2002 payable on the first day of each month commencing February 1, 2016.
The Respondent shall pay temporary spousal support of $1,108.00 per month commencing February 1, 2016.
The parties shall share the section 7 expenses of the children in proportion to their incomes.
The Applicant will assume the monthly home maintenance costs, not including any business operations of the Respondent.
A support deduction order will issue. The payments for February and March shall be made directly to the Applicant due to the time delays in setting up the support deduction order.
If parties unable to agree on costs, the party seeking costs shall file submissions, no longer than 3 pages, plus the written offer of settlement by February 21 and the responding party by March 7.
A.P. Ingram, J.
Date: January 29, 2016