Court File and Parties
COURT FILE NO.: 197-2016 DATE: 2017/03/15 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Nancy Finnie AND Lawrence Edwin Finnie
BEFORE: The Honourable Justice M. Z. Charbonneau
COUNSEL: Marie-Josée Gauthier for the Applicant Joel P. Freedman for the Respondent
HEARD: March 10, 2017
Endorsement
[1] The applicant brings this motion seeking interim spousal support and an order requiring the respondent to provide a business evaluation of his personal service corporation, Finnie Consulting.
The Background Facts
Spousal support
[2] The parties were married on June 2nd, 2001, after having lived in a common law relationship for a little over two years. They have no children although the respondent has a daughter from a previous relationship. That daughter is now 19 years old and has been treated in the past for mental health problems.
[3] The parties separated on November 18, 2015. The matrimonial home was sold in August 2016 and the net proceeds were divided equally between them. The applicant bought a home in Rockland Ontario with her share while the respondent invested his share. He is involved in a new relationship and lives in a house owned by his new companion.
[4] During the marriage, the applicant worked for Hewlett-Packard (H.P.). In 2014 and 2015 she earned $109,554 and $104,179 respectively. The wife took early retirement in December 2015.
[5] During the marriage, the respondent worked as a technology consultant. He operated his business through a corporation, Finnie Consulting (Finnie). His only client is the Bank of Montreal. The shares of the corporation were held jointly by the parties and Finnie would pay annual sums to the applicant. Otherwise Finnie is operated and controlled solely by the respondent.
[6] Finnie had gross revenue of $161,590 in 2013, $168,383 in 2014, $173,534 in 2015 and $160,837 in 2016. He declared income of $132,890 in 2013, $110,493 in 2014 and $110,444 in 2015. He has yet to file his 2016 income tax return but states his income for that year to have been $120,000.00.
[7] In his first financial statement, dated October 27, 2016 he swore he earned $165,192.00. His counsel submits he had mistakenly inserted his gross income instead of his net.
[8] The applicant submits the expenses claimed by Finnie are for most part personal expenses which should be added back to the respondent’s net income.
[9] In 2016 the wife received a sum of $32,346.79 from Finnie, benefits of $15,560.78 from HP and a net severance package of $65,294.95 from HP. She is presently not working and has no income. She will be 60 years old in May and has a grade 9 education. She is presently experiencing symptoms of depression and her doctor has prescribed Cipralex and Trazodone. She had been undergoing psychotherapy at the Hawkesbury General since September 12th, 2016.
[10] The respondent submits that the applicant is able to work and earn substantial income as is evidenced by her long successful career with HP. The Court should therefore impute her an income in the range of $100,000.00 and in those circumstances she should not be awarded any spousal support.
Appraisal of Finnie
[11] The respondent has provided his own evaluation of the value of Finnie. He submits that the applicant has already accepted $40,000.00 for her share of the business.
[12] He submits that the costs of a business evaluation far outweigh any benefit in this litigation. He submits that Finnie has very little tangible assets and is otherwise just an instrument though which the respondent is paid.
[13] Finally the respondent submits that Finnie being a joint property, the applicant must share equally in the cost of an evaluation.
Analysis
[14] This motion is for interim spousal support. Need and means are the important factors to consider on the facts of this case. I find that at this time the applicant is unable to obtain work to meet her needs given her age, her educational background and her health issues. The evidence clearly establishes that she has been prescribed 2 anti-depressants and is undergoing regular psychotherapy. The extent and duration of her illness is unknown at this time.
[15] A number of factual issues raised by the respondent will have to be decided at trial. The respondent claims that she willfully put herself in this dire position by unilaterally deciding to resign from her employment. The applicant maintains there were real justification for her retirement and the decision was a mutual one. This issue cannot be decided at this time.
[16] On the other hand, the respondent’s financial situation is stable and he continues to receive a good income in the range he was receiving during cohabitation. His financial situation is also helped by the fact he has established a new relationship and is able to reside in his new companion’s home. This has enabled him to invest his share of the net proceeds of the sale of the matrimonial home.
[17] I take into consideration the fact that he is helping his daughter financially. He has however not been totally forthcoming in disclosing the details of this help. He has yet to fully comply with his disclosure obligations.
[18] I therefore order the respondent to pay the applicant interim spousal support in the amount of $2,800.00 per month, which is the middle amount suggested by the spousal support guidelines, effective the 1st day of January 2017.
[19] In so far as the business evaluation of Finnie, I am not convinced that a full business evaluation is required for this corporation given its nature. However, I grant leave to the applicant to obtain an opinion as to whether a full business evaluation could establish a value much greater than what the respondent claims it is and if so to bring a further motion for that relief.
[20] I reject the respondent’s submissions that this is a joint asset in the traditional sense and the cost of an evaluation should be born equally by the parties. This is obviously the respondent’s corporation over which he has always fully assumed full control.
[21] If so advised, counsel can provide me with written submissions on costs. The applicant to provide them within 20 days, the respondent 15 days thereafter and the applicant to have 5 days to reply if necessary.