SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Anna Lisa Bloom, Applicant
AND
Robert Nicholas Bloom, Respondent
BEFORE: Justice A. Doyle
COUNSEL: Michael Rappaport, Counsel for the Applicant John E. Summers, Counsel for the Respondent
HEARD: July 21, 2017
ENDORSEMENT
1The Applicant, Mrs. Bloom, brings an interim motion for spousal and child support retroactive to March 1, 2017. The Respondent, Mr. Bloom, acknowledges his obligation but submits that, in determining support, the Court should impute income to Mrs. Bloom and support should be payable commencing July 1, 2017.
2The issues are:
(i) What is Mrs. Bloom’s income for the purposes of determining support?
(ii) What is Mr. Bloom’s income for the purposes of determining support?
(iii) What is the appropriate amount of child support?
(iv) What is the appropriate amount of spousal support? and
(v) When should support commence?
1. What is Mrs. Bloom’s income for the purposes of determining support?
Mrs. Bloom’s position
3She submits that no income should be imputed to her.
4She has not worked for 11 years as she was taking care of the two children who are now 11 and 9 years of age. She has been a full-time homemaker and is entitled to spousal support on compensatory and non-compensatory grounds. Since separation, she has sought work but has been unsuccessful. If she is unable to find work, she is considering returning to school in September to take upgrading computer courses and train for administrative / clerical positions.
5She states that the parties separated on September 11, 2016.
Mr. Bloom’s Position
6He acknowledges Mrs. Bloom’s entitlement to spousal support. However, he submits that income should be imputed to her at $30,000 per year as she should be working and has not provided a valid reason for not doing so.
7In addition, he states that the parties separated on January 28, 2007 and hence she has had time to become financially self-sufficient while the parties were living under the same roof.
Decision
8Drygali v. Pauli 2002 CarswellONT 3228 (C.A.) sets out the three steps in determining whether income should be imputed:
(1) Is the spouse intentionally underemployed or unemployed?
9Mr. Bloom has met the onus of demonstrating that Mrs. Bloom is intentionally unemployed. No bad faith must be shown. It simply means voluntary.
10At this interim stage, the Court will not determine the date of separation. This is an issue for trial. The Court does note that Mrs. Bloom was a full-time home maker for 11 years and hence she has not been working outside the home.
11She spends considerable time volunteering at the Kanata Theatre. She has only made four job applications.
12Her job search efforts have been meager and not extensive. There was no follow-up on one of the responses. She has indicated in her job inquiries that she is only available from 10 a.m. to 2 p.m.
13Hence, Mrs. Bloom is intentionally unemployed.
(2) If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?
14Mrs. Bloom has not met the onus of demonstrating why she is unable to work. Even when using her date of separation of September 2016, she has had a period of 10 months in which to find work.
15She presently has no educational obligations that prevent her from working.
16She suffers from degenerative disc disease and her knee issues are such that she will require a partial knee replacement, but there is no evidence that these issues prevent her from working.
(3) If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?
17The Court has considered her qualifications, her past work history, her age of 42 years, her health and work availability.
18She has a degree in French along with a Masters’ Degree in French. She worked as a customer service agent at WestJet from 2001 to 2004 and in 2004 worked at Holiday Inn as an Administrator and was then promoted to Duty Manager. She left work in September 2005 prior to the birth of her first child.
19She has an obligation to assist in the financial responsibility of the children.
20The Court will impute $15,000 per year for the following reasons:
− Minimum wage is $11.45 per hour. If she works part-time hours, she should be able to earn a modest income of approximately $1,200 per month;
− The children, who are 11 and 9 years old, attend school full time, therefore allowing her the ability to work full time; and
− She is also responsible for the children half the time allowing her to work more hours when they are with the father.
21As agreed by the parties, the Court will order her to produce her job search and employment opportunities, as well as notifying Mr. Bloom when she secures employment. She is also to advise Mr. Bloom if she returns to school in the fall.
2. What is Mr. Bloom’s income?
Mrs. Bloom’s position
22Mrs. Bloom submits that the Court should consider Mr. Bloom’s 2017 projected income of $128,000 as shown in his new contract with Ford.
23She is also very concerned with the lack of timely disclosure having only received his new contract with Ford a few days ago. She is uncertain as to whether he received his inheritance and submits that this amount should be considered by the Court in its analysis of determining what income is available for support. His inheritance is part of his financial status. See Keller v. Keller 1996 CarswellMan 449 (C.A.).
Mr. Bloom’s position
24He states that his 2016 income of $121,000 should be used for the determination of support. It is not certain whether he will receive the $7,000 annual bonus as offered in his Ford contract. The Court should use income that is certain, i.e. his income earned in 2016 of $121,000 in determining support.
25The transcript of Mr. Bloom’s questioning confirms that he has not yet received his inheritance from his mother’s estate.
Decision
26S. 2(3) of the Federal Child Support Guidelines, S.O.R./97-175, as amended (“Guidelines”) indicates that the most current income should be used to determine support:
Where, for the purposes of these Guidelines, any amount is determined on the basis of specified information, the most current information must be used.
27At this time, Mr. Bloom has changed employment and his base salary is $104,000 plus a hiring bonus of $16,979.52. There is a possibility of an annual bonus of $7,000 which is discretionary. This bonus would be payable in March 2018. Therefore, the income for 2017 will be approximately $121,000.00.
28I accept that the father has not received his inheritance as per his sworn evidence at Questioning.
29Therefore, his income for the purposes of determining interim support will be $121,000 per annum.
3. What is the appropriate amount of child support?
Mrs. Bloom’s Position
30She is seeking the full table amount of child support on the basis that no income should be imputed to her.
Mr. Bloom’s position
31He wishes the Court use the set-off amount based on an imputed income to her.
Decision
32S. 9 of the Guidelines stipulate that the Court consider the following in determining child support when the parties have shared parenting (i.e. over 40% of the time with the children):
Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account
(a) the amounts set out in the applicable tables for each of the spouses;
(b) the increased costs of shared custody arrangements; and
(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.
33The parents have the children on a week on/week off basis.
34The parents have both asked the Court to use the set-off amount and have not presented child expense budgets setting out their respective expenses for the children or the increased costs of shared parenting as required by s. 9 and Contino v. Leonelli-Contino 2003 30327 (ON CA), [2003] O.J. No. 4128.
35The Court finds that on an interim basis, it is appropriate to award the set-off amount which the parties submit as the appropriate method of sharing the financial obligations of the children on an interim level. Based on the financial statements of the parties and the determination below that the parties’ net disposable incomes will be equalized, the Court is satisfied that, on an interim basis, the children’s financial needs will be met by the use of the set-off amount.
36Therefore, based on the parents’ income as determined above, the father will pay child support in the amount of $1,478 per month.
4. What is the appropriate amount of spousal support?
Mrs. Bloom’s Position
37Mrs. Bloom submits that she is entitled to the high amount of spousal support as:
− Mr. Bloom has received a substantial inheritance in the amount of $600,000;
− she has no other income;
− she would like to obtain other accommodation and move out of her mother’s residence; and
− she was the main caregiver and full time homemaker and hence her support is in the nature of compensatory support as well as based on need.
Mr. Bloom’s Position:
38Spousal should be at the low end support of $1,000 per month as she can access her TFSA’s of $70,000 that he contributed for her after the separation. In addition, she is living with her mother and her expenses are minimal.
39The matrimonial home sold on June 22, 2017 and there is currently approximately $400,000 in trust pending settlement or court order. Mr. Bloom has been paying $1,000 per month to Mrs. Bloom since March 2017 pursuant to my Court order, along with the Line of Credit, utilities and the realty taxes. Support should commence July 1st, 2017.
Decision
40The Divorce Act, s. 15.2(1)(2) sets out the Court’s jurisdiction in determining interim support. S. 15.2(6) states that the objectives of spousal support are:
An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period
41Support on an interim basis should consider the following principles.
42At the interim stage, the primary goal on interim spousal support is to provide to the dependent spouse support until the trial. It is meant to be in the nature of a “holding order” to, insomuch as possible, maintain the accustomed lifestyle pending trial. See Fyfe v. Jouppien 2011 ONSC 5462.
43As stated in the Fyfe case, the court is not required to carry out a complete and detailed inquiry into all aspects and details of the case. A deep and thorough analysis of all the factors and inquiry into the factors is not necessary to be made in detail at an interim stage.
44The parties commenced cohabiting on September 1, 1997 and married on June 27, 1998. Mrs. Bloom states that the parties separated in September 2016 and Mr. Bloom states that they separated in January 2007.
45The Court has reviewed the parties’ respective financial situations. The Court notes that the children are living equally with both parents. The mother will be moving out into her own place and paying rent.
46The father pays for the majority of the children’s annual s. 7 expenses which amount to $1,559.
47The Court finds that, at this interim stage, the appropriate division of income should be that each party should receive 50% of Net Disposable Incomes. The father has noted his payment of s. 7 expenses in his SSAG calculations and hence they have been taken into consideration in the calculations.
48Therefore, Mr. Bloom will pay spousal support in the amount of $1,695 per month.
5. When should support commence?
Mrs. Bloom’s Position
49She submits that support should be retroactive to March 1, 2017 as he has only been paying $1,000 per month.
Mr. Bloom’s Position
50He indicates that he also paid the Line of Credit on the matrimonial home and the utilities and realty taxes until he sold the home on June 22, 2017. Support should start on July 1, 2017
Decision
51At this interim stage, the priority and objective is that the mother obtains a steady and sufficient level of support so she can establish her own home with the children. The retroactive issues are more complex as Mr. Bloom made payments on the matrimonial home without contribution from the mother.
52In the determination of retroactive support, these payments should be taken into consideration.
53Furthermore, the mother’s expenses while residing with her mother, along with her needs are markedly different than her proposed budget for her own apartment.
54Hence this issue will be reserved for the trial Judge.
Summary
55Commencing July 1, 2017, Mr. Bloom will pay child support in the amount of $1,478 per month based on an income of $121,000 per annum and an income imputed to Mrs. Bloom of $15,000 per annum.
56Commencing July 1, 2017, Mr. Bloom will pay spousal support in the amount of $1,695 per month based on an imputed income to Mrs. Bloom of $15,000. This may be adjusted when she finds employment.
57The issue of retroactive support is reserved to the trial Judge.
58On consent, Mrs. Bloom will advise Mr. Bloom of the following:
− all job searches;
− details of her employment when she obtains the same; and
− if and when she returns to school.
59If the parties are unable to agree on the issue of costs, Mrs. Bloom may submit her two-page written submissions, along with any offers to settle and her bill of costs by August 31, 2017 and Mr. Bloom may provide his two-page response along with any offers to settle and his bill of costs by September 15, 2017.
Justice A. Doyle
Date: 2017/07/25
CITATION: Bloom v. Bloom, 2017 ONSC 4506
COURT FILE NO.: FC-16-2654-0
DATE: 2017/07/25
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Anna Lisa Bloom, Applicant
AND
Robert Nicholas Bloom, Respondent
BEFORE: Justice A. Doyle
COUNSEL: Michael Rappaport, Counsel for the Applicant John E. Summers, Counsel for the Respondent
HEARD: July 21, 2017
ENDORSEMENT
Justice A. Doyle
Released: 2017/07/25