CITATION: Bowerman v. Bowerman, 2017 ONSC 5192

COURT FILE NO.: FC-10-2823-1

DATE: 20170831

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CHASTIDY AMANDA BOWERMAN, Applicant

-and-

WILLIAM RUSSELL BOWERMAN, Respondent

BEFORE: Mr. Justice Pierre E. Roger

COUNSEL: Chastidy Amanda Bowerman, Applicant, self-represented

Carol A. Crawford/Shawn Duguay, for the Respondent

HEARD: August 25, 2017

ENDORSEMENT ON MOTION

Introduction

[1]

Introduction

The applicant’s motion is dated August 8, 2017, and it is found at tab 1 of volume 3 of the continuing record. She seeks 26 items of relief.

2After being served, the respondent prepared his own motion, which is dated August 21 and found at tab 1 of volume 4 of the continuing record. He seeks eight items of relief. Although his affidavit addresses facts relating to severing the divorce from the corollary relief, this is not in his notice of motion and he did not argue this at the hearing of the motion.

3These motions are brought in the course of an application issued on August 6, 2014.

4The parties were married 15 years and cohabited for approximately 17 years. They have two children, Jaycob, born August 1996 (now 21) and Brayden, born December 1998 (now 18).

5The parties separated on October 9, 2013. After the separation, the two children lived with their father. On February 8, 2017, Brayden moved in with his mother and has been living with her since; Jaycob still lives with his father.

Analysis

[6]

Analysis

Jaycob works full-time but plans to return to school in September 2018. For the purposes of this motion only, and on a without prejudice basis to the parties’ position at trial, I find that he is not currently a child of the marriage.

7The evidence is that Brayden was not in school in February 2017 and that he is actually registered to start school in September 2017 (proof of registration is however to be provided). At paragraph 75 of her affidavit, the applicant states that Brayden has plans to continue with his post-secondary education in September 2017 and that he is currently actively enrolled at Carleton University. This was not contested by the respondent at the hearing of the motion. However, the applicant provides no actual proof of enrolment with the University – she must provide such proof. Although the applicant does provide, at Exhibits AX and AY, an illness certificate and a declaration of attendance at school or university, which indicate that Brayden intends to resumes his studies in September 2017, she does not provide actual proof of enrolment.

8Consequently, a temporary and without prejudice order will be made for child support payable to the applicants for one child starting on August 1, 2017, on the condition that the applicant serves on the respondent proof of Brayden’s enrolment by providing a copy of an invoice from the University or other document from the University proving Brayden’s enrolment (even part-time registration – 2 courses this upcoming semester and possibly 2 or 3 next semester will be sufficient for the purposes of this motion considering the medical evidence provided at exhibits AX and AY). Child support for Brayden is payable to the applicant from August 1, 2017, until further order of this Court. The amount payable is indicated below.

9The applicant is currently receiving disability income/payments and has been on disability for some time. Her financial statement dated August 8, 2017, discloses annual income of $48,870.72. Her 2016 income was $55,268. The respondent claims that her income is more likely in the range of about $60,000, considering that a portion of her income (about $33,000) is paid on a net basis. For the purposes of this motion, and on a without prejudice basis, I will use $60,000 for the applicant’s income.

10The respondent works in the high-tech sector and has earned considerable income over the last number of years: $263,720 in 2013; $208,754 in 2014; $236,904 in 2015; 272,558 in 2016. As of June 2017, the respondent has a new job in which he will earn $189,670 annually, plus an undetermined performance bonus that could total $81,287 in addition to other amounts. The respondent lost his previous job with Western Digital in March 2017, and in June 2017, he was hired by Rubisk Inc. at 189k plus bonus. On an interim motion, it seems fair to assume that the respondent will realize at least some small part of his performance bonus. Accepting that he did not work for about three months, but considering his up to March 2017 income, and that he will likely realize some small part of his potential bonus, it seems reasonable for the purposes of this motion, and on a without prejudice basis, to use income of $210,000 for the respondent’s current income.

11Considering that Brayden has worked reasonable hours this summer, and that he intends to work part-time during the upcoming school year, for the purposes of this motion and on a without prejudice basis, I will allocate 20% of his special expenses to him such that the parties will share pro rata to their income, as indicated above, 80% of Brayden’s section 7 expenses. Consequently, their respective pro rata share of section 7 expenses on a temporary and without prejudice basis starting August 2017 is: 17.78% by the applicant and 62.22% by the respondent (with Brayden paying the remaining 20%). These section 7 expenses are payable provided that Braden is registered in post-secondary education for September 2017 (even part-time registration as indicated above will be sufficient for the purposes of this motion considering the medical evidence provided at exhibits AX and AY).

12All of the above assessments are made on a temporary and without prejudice basis to the parties’ positions and evidence at trial.

13For the purposes of this motion, and on a temporary and without prejudice basis to the parties’ position at trial, entitlement to spousal support is established on the basis of needs and ability to pay. I note that for the purposes of this motion, and on a without prejudice basis, this was not really contested by the respondent at the hearing of the motion. The parties were married for 15 years and cohabited 17. They had two children and the applicant played an important role such that compensatory support might also be considered at trial. However, for the purposes of this motion, the income disparity between the parties following separation is sufficiently significant; the applicant has struggled financially while the applicant has earned significant income, such that, as indicated, entitlement is on a temporary and without prejudice established on the basis of needs and ability to pay.

14The respondent has provided DivorceMate calculations based on his income at $189,670, the applicant’s income as indicated above, and child support for one child but fixed at $1000 per month (the Table amount on those numbers would be $1,557, but the respondent subtracted $557 on the basis that Table amounts are not necessarily payable and that Brayden is working part time; he indicated that a further amount would have to be subtracted for CPP payments if Brayden’s CPP claim is allowed). This shows spousal support from low to high respectively at: $2,281 (53% payor and 47% recipient); $2,914; and $3,552 per month. I have also performed some DivorceMate calculations using $60,000 and $210,000 for income and these calculations show Table child support at $1,707 and spousal support from low to high respectively at: $2,839 (51.1% payor and 48.9% recipient); $3,548 (48.5% payor and 51.5% recipient); and $4,260 (46% payor and 54% recipient).

15Considering the above, on a temporary and without prejudice basis: (1) I will fix child support at $1,150 per month starting on August 1, 2017, net of Brayden’s contribution for both income and any CPP, and (2) I will fix spousal support at $2,839 per month starting on July 1, 2017. This should cover the applicant’s needs and be within the respondent’s ability to pay considering their most recent financial statement. Both amounts may be reviewed at trial.

16I am not addressing, on this motion, issues relating to retroactive or arrears of child support, retroactive or arrears of section 7 expenses, and retroactive or arrears of spousal support, because these issues are factually driven; the facts are contested, and the facts and these issues are intertwined with other facts and issues that involve an assessment of credibility or that otherwise can only be decided at trial when all of the relevant facts relating to these issues are before the Court. Similarly, I am not addressing property issues and property disputes for the same reasons. As a result, this motion will not address the following items of relief sought by the applicant and these are, on a without prejudice basis, left to be decided at trial (the numbering refers to the numbers found on the applicant’s notice of motion at tab 1 of volume 3 of the CR): 6, 7, 10, 13, 14, 20, 21, 22, 23, and 26. Any disclosure request that is excluded by this order is excluded because the information was provided.

17On the issue of disclosure, the respondent shall disclose to the applicant within the next 45 days (on a best efforts basis providing full particulars of efforts in the event of any nondisclosure):

a) The financial statements and notices of assessment for Secure Storage Consulting Inc. for the years 2013, 2014, 2015, 2016, and to date in 2017. The 2017 financial statements and notice of assessment shall be provided as soon as possible in 2018 (this answers item number 8 of the applicant’s motion).

b) Two costings of term life insurance in the amount of $200,000 payable to the applicant in the event of the respondent’s passing. If the parties cannot agree on the question of life insurance pending trial then this issue may return by way of a motion.

c) Items number 3 (b) (i), (ii), and (iii) of the order of Justice Labrosse dated March 27, 2015.

d) Item number 4 of the order of Justice Labrosse dated March 27, 2015, for the years 2009, 2010, 2011, 2012, and 2013 (to July 2013).

e) Item number 5 of the order of Justice Labrosse dated March 27, 2015, for the years 2013, 2014, 2015, 2016, and to date.

f) Copy of his 2017 notice of assessment as soon as available in 2018.

g) RRSP statements for the years 2009 to 2011.

h) All documents relating to amounts paid upon his dismissal or termination from SamDisk and Western Digital.

18On the issue of disclosure, the applicant shall disclose to the respondent within the next 45 days (on a best efforts basis providing full particulars of efforts in the event of any nondisclosure):

a) Answers to the letter from counsel for the respondent dated November 26, 2015, found at tab M/Exhibit M to the affidavit of the respondent, found at volume 4, tab 2 of the continuing record.

b) Obtain from her family doctor, Dr. O’Neil, and disclose to the lawyer for the respondent a complete copy of her medical file for the period from 2013 to date. The cost to photocopy this file shall be paid by the respondent within 30 days of receiving the invoice of Dr. O’Neil. Following payment, the applicant shall disclose to the lawyer for respondent a complete copy of that file. This file is subject to the deemed undertaking rule. In addition, to protect the privacy of the applicant, any lawyer for the respondent shall not provide a copy of this file to their client. The respondent may review this file but may not be provided with a copy of any document contained therein. This information is disclosed as it is relevant to the applicant’s ability or disability to work which is relevant to the issue of spousal support.

19Any and all items of disclosure sought by any of the parties in their respective notices of motion that are not allowed are dismissed on the basis that they have been answered or are not relevant, as applicable. For example, items 1, 15, and 16 in the applicant’s notice of motion have been answered, and item 12 is not relevant.

20I will briefly address the following as the respondent refers to this in his affidavit. Rule 12 (6) of the Family Law Rules, O. Reg. 114/99, provides that the Court may make an order splitting a divorce from the other issues in a case if (a) neither spouse will be disadvantaged by the order; and (b) reasonable arrangements have been made for the support of any children of the marriage. While (b) is addressed by this order, the respondent’s affidavit does not sufficiently address (a). Consequently, on a without prejudice basis to this returning later with better evidence, I will not at this time make an order that corollary relief be severed from the divorce.

21Finally, at the conclusion of the hearing of this motion, the parties agreed that each could withdraw from the funds held in trust following the sale of the matrimonial home in the amount of $15,000. Consequently, on consent and on a without prejudice basis, the real estate lawyer acting on this transaction and holding the funds in trust, Ms. Amy Jackson, may withdraw $30,000 from the trust account and pay $15,000 to the applicant and respondent respectively. These withdrawal and payments are made on a without prejudice basis to the positions of the parties at trial.

Conclusion

[22]

Conclusion

Consequently, on a temporary and without prejudice basis the following is ordered:

1. Starting on August 1, 2017, the respondent shall pay to the applicant child support in the monthly amount of $1,150, net of any contribution by the child for income or CPP (provided that the child Brayden is registered in post-secondary education, even if on a part-time basis).

2. Starting August 1, 2017, the parties’ contribution to section 7 expenses of the one remaining child shall be on the basis of 17.78% by the applicant and 62.22% by the respondent (provided that the child Brayden is registered in post-secondary education, even if on a part-time basis, with Brayden assuming 20%).

3. Starting on July 1, 2017, the respondent shall pay to the applicant spousal support in the monthly amount of $2,839.

4. This motion does not address the following items of relief sought by the applicant and these are, on a without prejudice basis, left to be decided at trial (the numbering refers to the numbers found on the applicant’s notice of motion at tab 1 of volume 3 of the continuing record): 6, 7, 10, 13, 14, 20, 21, 22, 23, and 26.

5. The respondent shall disclose to the applicant within the next 45 days (on a best efforts basis providing full particulars of efforts in the event of any nondisclosure):

a) The financial statements and notices of assessment for Secure Storage Consulting Inc. for the years 2013, 2014, 2015, 2016 and to date in 2017. The 2017 financial statements and notice of assessment shall be provided as soon as possible in 2018 (this answers item number eight of the applicant’s motion).

b) Two costings of term life insurance in the amount of $200,000 payable to the applicant in the event of the respondent’s passing. If the parties cannot agree on the question of life insurance pending trial then this issue may return by way of a motion.

c) Items number 3(b)(i), (ii), and (iii) of the order of Justice Labrosse dated March 27, 2015.

d) Item number 4 of the order of Justice Labrosse dated March 27, 2015 for the years 2009, 2010, 2011, 2012, and 2013 (to July 2013).

e) Item number 5 of the order of Justice Labrosse dated March 27, 2015 for the years 2013, 2014, 2015, 2016, and to date.

f) Copy of his 2017 notice of assessment as soon as available in 2018.

g) Any RRSP statement for the years 2009 to 2011.

h) All documents relating to amounts paid upon his dismissal or termination from SamDisk and Western Digital.

6. The applicant shall, within the next 45 days (on a best efforts basis providing full particulars of efforts in the event of any nondisclosure):

a) Disclose to the respondent answers to the letter from counsel for the respondent dated November 26, 2015, found at tab M/Exhibit M to the affidavit of the respondent, found at volume 4, tab 2 of the continuing record.

b) Obtain from her family doctor, Dr. O’Neil, and disclose to the lawyer for the respondent a complete copy of her medical file for the period from 2013 to date. The cost to photocopy this file shall be paid by the respondent within 30 days of receiving the invoice of Dr. O’Neil and following payment the applicant shall disclose to the lawyer for respondent a complete copy of that file. This file is subject to the deemed undertaking rule. In addition, to protect the privacy of the applicant, any lawyer for the respondent shall not provide a copy of this file to their client the respondent. The respondent may review this file but may not be provided with a copy of any document contained therein.

7. Any and all items of disclosure sought by any of the parties in their notice of motion that is not allowed is dismissed.

8. The real estate lawyer acting on the parties’ matrimonial home transaction and holding the balance of funds in trust, Ms. Amy Jackson, shall as soon as possible withdraw $30,000 from the trust account and pay $15,000 to the applicant and respondent respectively. These withdrawal and payments are made on a without prejudice basis to any of the positions of the parties at trial.

9. If the parties cannot agree on the costs of this motion within the next 10 days, then they may provide brief written submissions not exceeding three pages with a costs outline – by the respondent by September 22 and by the applicant by October 2, 2017. Otherwise, if no submissions are received by October 2, and if no additional order is made with respects to the costs of this motion, then there shall be no costs to either party for this motion.