CITATION: Curry v. Curry, 2017 ONSC 7028
OTTAWA COURT FILE NO.: FC-12-2306-1
DATE: 2017/11/24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ian Curry
Applicant
– and –
Cathy Curry
Respondent
H. Hunter Phillips, for the Applicant
Leonard Levencrown, for the Respondent
HEARD at Ottawa: November 2, 2017
REASONS FOR JUDGMENT
[1] This is Mr. Curry’s Motion to Change the Order of Justice Doyle dated March 17, 2016. The main issues are the quantum of child and spousal support payable by Mr. Curry to Ms. Curry for 2017, as well as ongoing support for 2018. An issue residual to Doyle, J.’s order is the amount of child and spousal support payable by Mr. Curry for 2016. Additional issues are whether I should make a specific order around the logistics of the sale of the parties’ cottage property at 30 Clark Lake Road in Quebec, and whether Ms. Curry should be found in contempt of Justice Doyle’s Order in relation to the division of the parties’ household contents and antiques.
[2] Mr. Curry’s position is that there has been a material change in circumstances since the Order of Doyle J. in that he commenced new employment effective January 2017 which would result in a reduction of the support payable for 2017 and onwards.
[3] Ms. Curry’s position is that there has been no material change in Mr. Curry’s circumstances in that his change in employment was completely foreseeable at the time of the Order of Doyle J. and that he should continue to pay support accordingly. Ms. Curry seeks retroactive section 7 expenses, an order imputing income to Mr. Curry for child and spousal support purposes on a go forward basis, a lump sum award for spousal support and security for such support. She denies that she has been the cause of delay in the sale of the cottage, and she also denies being in contempt of Justice Doyle’s order as it relates to household contents and antiques.
[4] Although Ms. Curry argued for retroactive section 7 expenses, I will not be dealing with that issue on the basis that that it was well settled by the parties’ interim agreements, the final order of Justice De Sousa of February 12, 2015 and within the reasons for decision of Justice Doyle. With respect to the remainder of the motion and for the reasons that follow, I find that there is a material change of circumstances which results in adjustments for 2016 and 2017 child and spousal support, and different child and spousal support for 2018 onwards. I decline to impute income to Mr. Curry. I am prepared to make the order requested regarding the 30 Clark Lake Road cottage. I do not find Ms. Curry in contempt of Justice Doyle’s order regarding the household contents and antiques. Finally, I will not make an order requiring Mr. Curry to post security for his support obligations.
Issues
[5] The issues to be discussed in this case are:
Has there been a material change of circumstances pursuant to Section 17(4) and (4.1) of the Divorce Act?
If so, should income be imputed to Mr. Curry?
What is the quantum of child support payable for 2016?
What is the quantum of child support payable for 2017?
What is the quantum of on-going child support payable commencing January 1, 2018?
What is the quantum of spousal support payable for 2016?
What is the quantum of spousal support payable for 2017?
What is the quantum of on-going spousal support payable commencing January 1, 2018?
What order can or should be made regarding the sale of 40 Clark Lake Road, Quebec?
Is Ms. Curry in contempt of the Order of Doyle J. regarding the household contents and antiques?
Should Mr. Curry be required to provide security for his support obligations?
Background
[6] Mr. and Ms. Curry were married June 27, 1992 and separated on July 1, 2012. There are four children of the marriage, Julie, born April 14, 1997, Jonathan, born March 5, 1999, Courtney, born May 10, 2001 and Michael, born April 14, 2003. At the time of the trial before Doyle, J. the three younger children resided with their mother, and Julie was on a one year program abroad. Julie returned to her mother’s home for the summer of 2016, and commenced a fulltime education program where she lived away from home as of September of 2016, returning again for the summer in 2017. Jonathan has also commenced a fulltime education program away from home as of September 2017.
[7] The parties entered into an interim without prejudice separation agreement dated April 9, 2014; an amended interim separation agreement dated January 18, 2015; partial minutes of settlement on January 14 and 15, 2015 (which were incorporated into a final order of Justice De Sousa dated February 12, 2015); and, partial Minutes of Settlement dated January 14 and 15, 2016 (which altered portions of Justice De Sousa’s final order having to do with parenting issues). There was also a temporary order of Justice Warkentin dated July 3, 2015 prior to the trial heard by Justice Doyle in January of 2016.
Reasons for Decision and Divorce Order of Justice Doyle dated March 17, 2016
[8] In her Divorce Order dated March 17, 2016, Justice Doyle found that:
• Mr. Curry’s income for support purposes was estimated at $433,621 per annum;
• Ms. Curry’s imputed income was $20,000:
• Commencing January 1, 2016, Mr. Curry was to pay child support for three children, Jonathon, Courtney and Michael, in the table amount based on an income of $433,621, or $6,695 per month;
• When the couple’s fourth child, Julie returned to the home and so long as she continued to be a “child of the marriage”, child support was to increase to the table amount for four children, based on an income of $433,621, or $8,150 per month;
• Commencing January 1, 2016, Mr. Curry was to pay Ms. Curry spousal support that when combined with child support resulted in her receiving 60% of the combined net disposable income;
• The parties were to exchange SSAG calculations, which were to “include incomes as determined by this court, other income from all sources, including but not limited to investment income, interest and capital gains, and the appropriate deductions, including Schedule III adjustments” to determine the appropriate amount of spousal support in accordance with the order, and to provide submissions to her if they could not agree on the amount;
• Support could be varied upon a material change of circumstances;
• Commencing June 1, 2017, the parties were to exchange tax returns and Notices of Assessment on an annual basis.
[9] In declining to build in a review of her order at the end of 2016, Doyle J. had the following to say at paragraph 210 of her reasons for decision:
Certainly, the husband has indicated that he will be exploring alternate employment and utilizing his expertise, skill and connections to find employment with remuneration commensurate with his abilities
Issue #1 – Has there been a material change of circumstances?
[10] At the time of trial, Mr. Curry was employed by OraSure, which had previously bought out the company for which he had been working, DNA Genotech Inc., where he earned an annual income of $315,000 as well as some income from restricted stock units (RSU’s). However, Mr. Curry had shortly before trial negotiated a transition agreement with OraSure which saw him leaving the company as of December 31, 2016. It was, therefore, foreseen that Mr. Curry’s employment and/or income would change, however, what those changes would be at the end of 2016 were not known by the trial judge.
[11] In or about November of 2016, Mr. Curry obtained employment with CORD3 Innovation Inc. which commenced January 2, 2017. At CORD3, Mr. Curry has a salary of $200,000 per year, and he has also received 300,000 common shares of the company, representing 3% of the fully-diluted shares, such shares to vest over a period of four years. Currently, the shares have no market value but will in the event that the company is taken over by another corporation or goes public.
[12] In or about August of 2017, Mr. Curry also received an offer to provide part-time consulting services to a company called Trend Micro. Mr. Curry attested to the fact that he expects to provide 11 days of consulting to Trend Micro between October and the end of December 2017, and another 11 days between January and the end of March 2018, all at $1,500 US (or approximately $1,800 CAN) per day. However, Mr. Curry’s salary with CORD3 will be reduced by 20% ($10,000) per quarter as a result of the one day per week he will be dedicating to Trend Micro. The net result is that Mr. Curry will lose $20,000 salary from CORD3, but will gain $40,000 from Trend Micro over the same two quarters. Mr. Curry’s expectation is that he will make $210,000 in salary ($190,000 from CORD3 and $20,000 from Trend Micro) for 2017, and $210,000 for salary ($190,000 from CORD3 and $20,000 from Trend Micro) in 2018.
[13] There is little doubt that this is a material change in circumstances. As Justice Chappel noted in paragraph 19 of Durso v. Mascherin, 2013 ONSC 6522, 2013 CarswellOnt 14879, after discussing section 17(4) of the Divorce Act: “Accordingly, a change in the payor spouse’s income….would satisfy the threshold test of whether there has been a change of circumstances since the previous order was made.” The change in this case, moreover, was one that was anticipated by the trial judge, and one for which she contemplated that a motion to change may be brought, both in her reasons for decision, as outlined in paragraph 9 above, and in her actual order, wherein she stated: “Support may be varied upon a material change of circumstances.” Mr. Curry does not now earn what he earned in 2016; his circumstances have significantly and materially changed. Furthermore, his estimated 2016 income which formed the basis for
Doyle J.’s final order ended up being significantly different than what he actually earned.
Issue #2 – Should income be imputed to Mr. Curry?
[14] Ms. Curry argues that Mr. Curry both “voluntarily” left his former employer, OraSure, and that he is currently under-employed. She argues that income should as a result be imputed to him pursuant to section 19 of the Federal Child Support Guidelines for the purposes of child and spousal support on the basis of an average of his incomes over the past three years.
[15] With respect to the first point, Justice Doyle had the following to say in her Reasons for Decision:
• “The court is left with uncertainty of how much the husband had a hand in the negotiation of his transition agreement.” – paragraph 73
• “It is not clear whether he was actually “dismissed” or whether he resigned. The wording of the termination letter and transition agreement speaks of “the relationship [being] no longer sustainable.” This is certainly ambiguous language and the court cannot infer who initiated it.” – paragraph 74
• “One is uncertain whether the husband could have continued working there; however, it is clear that the recent events were quite troubling.”
• Having said all of that, Doyle J. nevertheless found in paragraph 77 that “…on a balance of probabilities, a credible explanation was provided”.
[16] In this motion, Mr. Curry proffered a letter from the lawyer he engaged to negotiate with OraSure explaining the reasons for his departure. Ms. Curry objected to the admissibility of that letter, indicating that Mr. Curry was offered the opportunity to have his employment lawyer testify at the trial by Justice Doyle and he did not take it. Ms. Curry argues that Mr. Curry ought to not now be permitted to rely on evidence that was available at the time of trial but that he did not produce. I advised the parties that I would take the objection under advisement and deal with it in my endorsement, which I now do. Knowing of the objection in advance, I did not read the letter, but to see what it was and whom it was from. I agree with the objection of Ms. Curry and I have declined to admit the letter on the basis that its contents predate the trial; the witness should have been made available to the trial judge if Mr. Curry wished to rely upon his or her evidence. However, even without the witness being produced at trial, in the end Justice Doyle accepted Mr. Curry’s evidence as to his reasons for leaving his former employer (paragraph 78). I cannot go behind that finding and now find for the purposes of the motion that it was unreasonable and therefore “voluntary”.
[17] With respect to the second basis for wanting to impute income to Mr. Curry, the onus is on Ms. Curry to establish an evidentiary basis that he is now intentionally under-employed. (Homsi v. Zaya, 2009 ONCA 322, 65 R.F.L. (6th) 17, at para. 28).
[18] A spouse is intentionally underemployed if he or she chooses to earn less than he or she is capable of earning having regard to all of the circumstances (Drygala v. Pauli (2002), 61 O.R. (3d) 771 (C.A.), at para. 28). A spouse’s capacity to earn income can be influenced by his or her age, education, health, work history, and the availability of work that is within the scope of his or her capabilities (Marquez v. Zaipola, 2013 BCCA 4333, 344 B.C.A.C. 133, at para. 37);
[19] Ms. Curry asserts that Mr. Curry is precisely choosing to earn less than he is capable of earning, which she states is $600,000 to $700,000 per annum. She disputes Mr. Curry’s assertion that $200,000 is the highest income that he could find at the end of 2016, and states that he is simply choosing to work for that salary in order to evade his support obligations. She alleges that his efforts to find employment commensurate with his capacity to earn were faulty, in that he provided no documentary proof of applications or interviews. However, in his affidavit sworn on January 5, 2017, commencing at paragraph 16, Mr. Curry provided several pages of the contacts he made and discussions he had in an effort to find employment that was consistent with his knowledge, experience and specialization. Mr. Curry’s evidence was that he was fortunate to be able to obtain the salary he did from CORD3, and that it, in fact, resulted in him being the highest paid employee for the company. As I have indicated above, Mr. Curry has since been offered an additional contract to provide consulting services by Micro Trend.
[20] Ms. Curry argues that the rate of remuneration within Mr. Curry’s contract of $1,500 USD per day supports her contention that Mr. Curry is capable of making more money than he is. However, there was no evidence before me to support that Mr. Curry could be working fulltime at that rate, and the fact of the matter is, he accepted what was offered to him, and it will be included in his income for support purposes for 2017 and 2018. Mr. Curry is an excessively sophisticated business man and equally excessively astute financial manager. His contract with Micro Trend may lead to further opportunities and more income. His shares in CORD3 may gain extensive value in the future. He may sell other shares/stock options he owns from his previous Board work with other companies. If any of these things happen, whatever gains he makes from them will, of course, have to be included in his future income for support purposes. These, however, are distinct issues from whether such income should be imputed to him now.
[21] I find, in keeping with Justice Doyle’s reasons, that Mr. Curry’s exit from OraSure was not “voluntary” for the purposes of evading support, and that he is not currently intentionally underemployed.
[22] Ms. Curry argues additionally that because of Mr. Curry’s past ability to make very high incomes, the court should average his last three years of income and apply it on an on-going basis. As Chappel J. indicated at paragraph 21 of Durso, however, “the court is presumptively required to [make a child support order] in accordance with the Guidelines.” The FCS Guidelines provide that income is generally “determined using the sources of income set out under the heading of “Total income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III”, subject to sections 17 to 20 of the Guidelines. Absent a finding that Mr. Curry is under-employed, I can see no basis to impute income to him. Mr. Curry is, and has always been, a salaried employee, and his income must be determined accordingly. I can, additionally, find no other criteria for imputing income from section 19 of the Guidelines that apply. Mr. Curry has not historically hidden, and is not currently hiding income; he is not exempt from paying taxes; he is a resident of Canada for income tax purposes; he has not diverted income; he reasonably generates income from his investments; and he does not unreasonably deduct expenses from his income.
[23] For all of the reasons outlined above, I decline to impute income to Mr. Curry.
Issue #3 – What is the quantum of child support payable for 2016?
[24] Justice Doyle estimated Mr. Curry’s 2016 income to be $433,621 for the purposes of support. His actual income was slightly lower until November of 2016 when Mr. Curry sold some DNA stock, which sale appeared as employment income in his 2016 tax return. Both parties agree that Mr. Curry’s 2016 income from all sources, after deducting carrying charges and interest expenses in accordance with Schedule III of the Federal Child Support Guidelines, for support purposes was $588,294.
[25] Julie was away on her Placements Abroad Program until May of 2016. Thus, the child support payable for three children (January to May and September to December) was $8,922 per month. The child support payable for four children (June to August) was $10,904 per month.
Issue #4 – What is the quantum of child support payable for 2017?
[26] As I have outlined above, Mr. Curry’s salary for 2017 is expected to be $210,000 ($190,000 of which is from CORD3 and $20,000 of which is from Micro Trend). In addition to his employment income, Mr. Curry also sold OraSure stock options on three occasions in 2017, twice for his own benefit and once for the benefit of Ms. Curry. By consent order of Justice De Sousa dated February 12, 2015, the parties agreed as part of the property settlement between them that Mr. Curry would hold one half of his Orasure stock options in trust for Ms. Curry and that he would sell them when requested by her. Ms. Curry made such request in August of 2017, so Mr. Curry did so. In the course of the motion, it became clear that the parties agreed the sale of stock options by Mr. Curry which related to the division of matrimonial property (proceeds from the exercise of pre-separation stock options) would not be included in either Mr. Curry or Ms. Curry’s income for support purposes.
[27] The sale of stock options which are to be included in Mr. Curry’s 2017 income for support purposes are those from four transactions on February 17, 2017 totalling $179,516.93. Those which benefited Mr. Curry and should be excluded are another on February 17, 2017 resulting in gross proceeds of $125,325.07 and one on September 6, 2017, resulting in gross proceeds of $52,505.88 for a total exclusion of $177,857.95. Also to be excluded is $504,135.25 being the gross proceeds of the August sale.
[28] Mr. Curry’s 2017 income, therefore, consists of $210,000 in salary and $179,516.93 in proceeds from the sale of stock options. When calculated along with all other income (which includes some investment income) and deductions taken from his 2016 tax return, the result is a total income for support purposes of $420,104. At that income, child support for three children (January to April) would be $6,500 per month; child support for four children (May to August) would be $7,910 per month; and, child support for two children, when both Julie and Jonathan are away at school (September to December), would be $5,091 per month.
Issue #5 – What is the quantum of on-going child support commencing January 1, 2018?
[29] As of January 1, 2018, Mr. Curry’s annual income will be $210,000, which is the combination of his salary from CORD3 and his contract income from Micro Trend. There are no stock options left to sell, and unless and until his CORD3 options obtain some value, or he sells others he owns, that will be the extent of Mr. Curry’s annual income, along with his other income (again this includes some investment income) and deductions as shown in his income tax returns. These result in an annual projected income of $240,587 for Mr. Curry in 2018. Child support for two children when both Julie and Jonathan are away at school (January to April and September to December) will be $3,045 per month; and, child support for four children (May to August) will $4,714 per month.
Issue #6 – What is the quantum of spousal support for 2016?
[30] Having determined (on consent) Mr. Curry’s income for 2016 as $588,294, the issue becomes what is Ms. Curry’s 2016 income. In her reasons for decision and Divorce Order, Justice Doyle imputed an annual income of $20,000 to Ms. Curry, and I was provided no evidence to suggest that it would not remain in play. Thus, Ms. Curry’s annual income would remain at $20,000, along with her other income and deductions as shown in her 2016 income tax returns. In order to meet Justice Doyle’s threshold of 60% of the parties net disposable income, this would result in Mr. Curry paying to Ms. Curry $10,386 per month in spousal support when she had three children in her care (January to May and September to December), and $6,347 per month in spousal support when she had four children in her care (June to August).
Issue #7 – What is the quantum of spousal support for 2017?
[31] Having determined that no income will be imputed to Mr. Curry pursuant to section 19 of the FCS Guidelines, and that his 2017 income for support purposes is $420,104, DivoreMate calculations using the imputed $20,000 of income for Ms. Curry, along with her other income and deductions as shown in her 2016 income tax returns, results in spousal support at an NDI of 60% as $7,346 per month when she has three children in her care (January to April), $4,635 per month when she has four children in her care (May to August), and $10,123 per month when she has two children in her care (September to December), the latter of which is actually 59.8% NDI. Mr. Curry argues that the court should examine and adjust the percentage of NDI made available to Ms. Curry as the children who are home throughout the year reduce in numbers, particularly once it is down to two when both Julie and Jonathan are away at school. I would not consider doing this beyond the 59.8% in 2017. The period for which Ms. Curry would have less than three children in her fulltime care is short, and the slight reduction to the NDI from September to December accounts for it.
Issue #8 – What is the quantum of on-going spousal support in 2018?
[32] Again, as I have found no imputation of income for Mr. Curry is appropriate, his estimated income for 2018 will be $210,000 along with his other income and deductions as shown in his 2016 income tax return (as the most recent available figures), namely $240,587. Ms. Curry’s income will continue to be the imputed $20,000 along with her other income and deductions as shown in her 2016 income tax return (as the most recent available figures). The DivorceMate calculation, albeit with a 2017 date on it, reveals that Ms. Curry would receive $5,007 per month in spousal support in the low range of the SSAG’s when she has two children in her care (January to April and September to December) at 58.2% of the NDI or $5,743 per month at 60.2% of the NDI in the mid-range of the SSAG’s. The spousal support when Ms. Curry has four children in her care (May to August) will be $2,692 per month at 60% of the NDI.
[33] For 2018, Mr. Curry has directed the court to Chappel J.’s review in paragraph 50 of Durso of the approaches taken by courts in the calculation of child support pursuant to section 3(2) of the Divorce Act once those children live away from home for educational purposes. In this case, all of the children’s education and living expenses while away from home are being paid through a combination of RESP’s and the children’s trust accounts established in 2011. Mr. Curry has proposed an approach that would see a consistent payment for both child support and spousal support throughout the year, by “averaging out” the support payable for two children at home and two additional children for the summer, which would result in a child support payment of $3,601 per month for all twelve months, and $4,639 per month in spousal support over the whole year representing an NDI of 59.9%.
[34] In either scenario, given the length of the marriage and the compensatory nature of Ms. Curry’s claim, I am of the view an amount closer to a mid, as opposed to low, range of the SSAG’s is appropriate. In the scenario set out in paragraph 32 above, I would order that Mr. Curry pay Ms. Curry $5,300 per month in spousal support for the eight months when there are only two children in her care. In the scenario set out in paragraph 33, I would order that Mr. Curry pay Ms. Curry $4,800 per month for all twelve months of the year. In the first scenario, Ms. Curry would end up with a combination of child and spousal support of $96,384; in the latter she would end up with $100,816. I will, therefore, apply the latter approach.
Issue #9 - What order can or should be made regarding the sale of 40 Clark Lake Road, Quebec?
[35] Pursuant to the parties partial minutes of settlement pertaining to property which was incorporated into the order of Justice De Sousa dated February 12, 2015, Ms. Curry was to retain ownership of a cottage property at 36 Clark Lake Road in Quebec, and the jointly owned cottage property at 30 Clark Lake Road was to be sold.
[36] Mr. Curry alleges in his affidavit evidence that, notwithstanding her consent to this order, Ms. Curry had failed to cooperate with his efforts to sell the cottage. Mr. Curry states that Ms. Curry has refused to sign a listing agreement for the property and has impeded his efforts to get it sold. He seeks an order dispensing with Ms. Curry’s consent to a listing or to consent to an offer.
[37] Ms. Curry vigorously disputes these allegations and states that, although Mr. Curry was to prepare the cottage for sale, it has in fact been her who has expended funds and caused necessary work to be done on the cottage to ready it for sale. She states that she had the roof repaired, downed trees removed, and has paid property taxes. Ms. Curry received an assessment which valued the property at between $140,000 and $150,000, which she says is significantly less than when she and Mr. Curry first agreed for it to be sold. She attributes the delay and lack of activity on this front to Mr. Curry. She indicates that she now wishes to retain the property and is prepared to pay Mr. Curry $85,000. She seeks an order requiring Mr. Curry to transfer his interest in the property to her for this sum.
[38] I am not aware of any authority I would have to compel Mr. Curry to release his interest in a jointly owned property, especially where the parties have already agreed and a court has ordered that it is to be sold. While it is unclear to me whether this particular cottage fits within the definition of a matrimonial home, the Ontario Court of Appeal has made it clear in Martin v. Martin, 1992 CanLII 7402 (ON CA), that the court does not have statutory authority to make an order granting a spouse a right of first refusal.
[39] The evidence with respect to whom has shirked their responsibilities or caused of delay in the sale of the property is, to put it mildly, conflictual and difficult to assess. What is clear is that the property remains unsold, and it seems as though one party requires the authority to list it and sell it in order for that to get done. For this reasons, I am prepared to grant the order requested by Mr. Curry in this regard. Certainly, Ms. Curry can “enter the fray” once the cottage is listed, should she be interested in purchasing it.
Issue #10 - Is Ms. Curry in contempt of the Order of Doyle J. regarding the household contents and antiques?
[40] Mr. Curry alleges that Ms. Curry is in contempt of Paragraph 5 of the Divorce Order of Justice Doyle. He alleges that Ms. Curry failed to obtain an appropriate appraisal of the household contents at both the matrimonial home and the cottage at 36 Clark Lake Road, in that certain items are missing and it is not exclusive of antiques. He also alleges that she has failed to deliver on the in specie division of antiques as contemplated by the order. He seeks a finding that she is in contempt of the order, an order requiring Ms. Curry to pay to him $5,000 for his interest in the household contents and an order requiring her to deliver up the antiques he has selected.
[41] Ms. Curry states that she provided the required appraisal, but that some of the items which Mr. Curry identifies as missing were either not worth getting appraised or did not belong to them, but to the children. She also states that she has said to Mr. Curry many times that he can have whatever he wants in terms of antiques, and that, in fact, he has failed to collect them when she has offered for him to do so.
[42] In order to find Ms. Curry in contempt, I must find: 1) that the order of Justice Doyle of March 17, 2016 stated clearly and unequivocally what should and should not be done; 2) that Ms. Curry disobeyed it in a deliberate and wilful matter; and, 3) that the evidence shows contempt beyond a reasonable doubt. See Prescott-Russell Services for Children and Adults v. G. (N.), 2006 Can LII 81792 (ONCA) at paragraph 27.
[43] While Justice Doyle’s order with respect to what should be done with the household contents was clear and unequivocal, neither party was particularly conscious of seeing the process through in the manner contemplated by her. Again, the evidence before me is contradictory in regards to who caused delay, or who caused the delivery of the antiques to not be undertaken. On this basis, I cannot find either that Ms. Curry disobeyed Justice Doyle’s order in a deliberate and wilful manner or that the evidence shows contempt beyond a reasonable doubt.
[44] At this stage, Ms. Curry has provided an appraisal of the household goods. She has also provided the required photographs and Mr. Curry has identified the antiques he wishes to collect. The appraisal provided by Ms. Curry concludes that the value of the household contents appraised was $9,140, and the cost of the appraisal (which was to be shared) was $615.85. To put an end to the dispute between Mr. and Ms. Curry as it relates to the household goods, I am prepared to order that Ms. Curry will pay to Ms. Curry $4,262.07, which was suggested by Ms. Curry’s counsel to Mr. Curry’s counsel in July of 2016. Also to put an end to the dispute over the antiques, I am prepared to make an order that Ms. Curry is to provide to Mr. Curry three dates/times at which he may attend the home to collect the antiques he has selected. Mr. Curry will choose and confirm one of those three dates/times and make arrangements to pick up the antiques he has selected.
Issue #11 - Should Mr. Curry be required to provide security for his support obligations?
[45] Ms. Curry requests an order requiring Mr. Curry to post security in a sum that will secure his support obligations. Counsel have pointed me to the case of Singh v. Singh, 1999 CanLII 14954 (ON SC), 1999 CarswellOnt 2346, (Ont. SCJ), which at paragraphs 13 to 16 provides that a court may order security for support where: (a) a party has a history of dissipation of assets; (b) the payor is likely to leave the jurisdiction and become an absconding debtor; (c) the payor has, in the past, refused to honour an ordered or agreed to support obligation or refused to pay support at all; and, the payor has a poor employment history.
[46] Ms. Curry alleges that Mr. Curry has moved to Switzerland to live with his new partner, who has secured a position there. Ms. Curry states that Mr. Curry sold his home in Ottawa and held a garage sale. She fears he will become “an absconding debter.” Ms. Curry also alleges that Mr. Curry has in the past not honored his support obligations, in that, from her perspective, he has not provided support in accordance with agreements or final order.
[47] Mr. Curry disputes that he has ever failed to honour his support obligations. He indicates that he has disputed exactly what those obligations are, but he has never refused to pay support or honour them. He states that he paid support voluntarily originally, and then pursuant to the temporary order of Justice Warkentin until clarification and specification was obtained by Justice Doyle’s order of August 24, 2017, which was supplementary to her March 17, 2016 order. Prior to the commencement of this motion, and pursuant to Justice Doyle’s order of August 24, 2017, Mr. Curry was up to date on all of his support payments.
[48] Mr. Curry admits to having a garage sale to rid himself of some superfluous items when he joined households with his partner, however, he denies moving to Switzerland on a fulltime basis. While Mr. Curry did sell a home in Ottawa, he maintains another home here. Mr. Curry states that while he can work remotely for CORD3, his place of employment is Ottawa, and he will be required to be in Ottawa and/or Toronto from time to time for meetings, both for CORD3 and Trend Micro. He states that while he will be living and working remotely from Switzerland part of the time, he remains a resident of Canada for income tax purposes and he states he has no intention of giving up that status.
[49] Far from having a poor employment history, or a history of dissipation of assets, Mr. Curry has an impressive employment history and a history of accumulating assets.
[50] Based on all of this evidence, I am unable to find that the prerequisites to order security as set out in Singh are present in this case.
[51] Ms. Curry has requested an order of a lump sum award of spousal support as an alternative. I do not find this an appropriate case for an order of lump sum support as: 1) Ms. Curry’s entitlement is indefinite; 2) Mr. Curry’s income has the potential to fluctuate due to his penchant for obtaining and selling shares or exercising stock options; and 3) I am of the view that it is not feasible to calculate a lump sum in a manner that will render a fair and reasonable “one time” assessment as per Sharpe v. Sharpe [1997]RFL (4th) 206, paragraph 47.
Order
[52] My order is as follows:
2016 Support
For 2016, the Applicant shall pay the Respondent as child support for three children the sum of $8,922 per month for the months of January to May and September to December inclusive (while the child Julie was away from home attending university) and as child support for four children the sum of $10,904 per month for the months of June to August, inclusive (while Julie was living at home).
For 2016, the Applicant shall pay the Respondent spousal support in the amount of $10,386 per month for the months of January to May and September to December, inclusive, and in the amount of $6,347 per month for the months of June to August, inclusive.
The amount of spousal support payable pursuant to paragraph 2 above shall be deductible by the Applicant in the calculation of his taxable income and shall be included by the Respondent in the calculation of her taxable income pursuant to the provisions of sections 56.1 (3) and 16.1 (3) of the Income Tax Act.
The amounts payable pursuant to paragraphs 1 and 2 above totalling $225,525 and the Applicant having paid the Respondent $223,374 towards support for 2016, the Applicant has underpaid support for 2016 by the amount of $2,151.
2017 Support
For 2017, the Applicant shall pay the Respondent as child support for three children the sum of $6,500 per month for the months of January to April, inclusive (while Julie was away at university), $7,910 per month for the months of May to August as child support for four children (Julie having returned home during the summer) and $5,091 per month as child support for two children for the months of September to December, inclusive (while Julie and Jonathan are away from home attending university).
For 2017, the Applicant shall pay the Respondent spousal support in the amounts of $7,346 per month for January to April, inclusive, $4,635 per month for May to August, inclusive, and $10,123 per month for September to December inclusive.
The amount of spousal support payable pursuant to paragraph 6 above shall be deductible by the Applicant in the calculation of his taxable income and shall be included by the Respondent in the calculation of her taxable income pursuant to the provisions of sections 56.1 (3) and 16.1 (3) of the Income Tax Act.
The amounts payable pursuant to paragraphs 5 and 6 above totalling $166,420 and the Applicant having paid the Respondent $166,290 towards support for 2017, the Applicant has under paid support for 2017 by the amount of $130.
2018 Support
Commencing January 1, 2018, and continuing on the 1st day of each month thereafter, the Applicant shall pay the Respondent child support in the amount of $3,601 per month, being the Child Support Guidelines table amount of support for two children living with the Respondent full time and two children living with the Respondent during the summer months (averaged over 12 months) based on the Applicant’s income for support purposes of $240,587.
Commencing January 1, 2018, and continuing on the 1st day of each month thereafter, the Applicant shall pay the Respondent spousal support in the amount of $4,800 per month.
Commencing May 15, 2019, and on the 15th day of May each year thereafter, the parties shall exchange their income tax returns, attachments and Notices of Assessment/Reassessment for the preceding calendar year and the amount of child support to be paid by the Applicant to the Respondent commencing June 1st, and for the subsequent 12 months, shall be adjusted to the amount payable pursuant to the Child Support Guidelines for the number of children remaining eligible to be supported, based on the Applicant’s income for the preceding calendar year as calculated pursuant to the Guidelines. Child support for children attending university full time while living away from home but living with the Respondent during the summer shall be calculated on a “summer” basis (i.e., the table amount for such child for four months of the summer spread over 12 months).
Support may otherwise be varied upon a material change in circumstances.
Unless the support order is withdrawn from the office of the Director of the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the support order shall be paid to the Director, who shall pay them to the person to whom they are owed.
Cottage – 30 Clark Lake Road
The Respondent’s consent to a listing agreement with respect to the sale of the cottage located at 30 Clark Lake Road in the Province of Québec and her consent to any agreement of purchase and sale with a bona fide third-party purchaser is dispensed with.
Upon the closing of the sale of the said property there shall be a reconciliation of what expenses either party has paid with respect to repairs and maintenance of the 30 Clark Lake Road cottage from July 1, 2012 until the closing of sale with the Applicant and the Respondent each to be reimbursed from the net proceeds of sale for such expenses as he/she has paid before the balance of the net proceeds are divided equally between the Applicant and the Respondent.
Household Contents and Antiques
Ms. Curry will pay to Ms. Curry $4,262.07 for his interest in the parties’ household contents within 30 days of the release of this order.
Ms. Curry will within five days of the release of this decision provide Mr. Curry with three dates and times which are prior to January 15, 2018 during which he may attend the home to collect the antiques he has selected. Mr. Curry will choose and confirm one of those three dates and times within five days of receiving them from Ms. Curry and make arrangements to pick up the antiques he has selected.
Other Matters
- The Respondent’s claims for security for support and for lump-sum support are dismissed.
This order bears interest at the rate of percent per annum.
Costs
[53] Failing agreement by counsel by January 15, 2018 as to the liability for costs of this Motion to Change, counsel will make written submissions to me at intervals of 10 days and I will make an order.
Madam Justice Tracy Engelking
Released: November 24, 2017
CITATION: Curry v. Curry, 2017 ONSC 7028
OTTAWA COURT FILE NO.: FC-12-2306-1
DATE: 2017/11/24
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Ian Curry, Applicant AND
Cathy Curry, Respondent
BEFORE: Justice Tracy Engelking
COUNSEL: H. Hunter Phillips, for the Applicant
Leonard Levencrown, for the Respondent
REASONS FOR JUDGMENT
ENGELKING, J.
Released: November 24, 2017