Court File and Parties

COURT FILE NO.: F51/15

DATE: 20180305

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: Jennifer Lauri Kilgar, Applicant

AND:

Brian Arthur Church, Respondent

BEFORE: Rady J.

COUNSEL: Brenda D. Barr, Counsel for the Applicant

Peter D. Eberlie, Counsel for the Respondent

HEARD: January 17, 2018

ENDORSEMENT

Overview

[1] The respondent seeks an order severing the divorce from the corollary issues pursuant to Rule 12 (6) of the Family Law Rules. The applicant opposes.

Facts

[2] The parties, who are both physicians, married in 1998 and separated in 2013. They have three children, two of whom are dependents. The third, the eldest, has withdrawn from parental control. The two younger children, who are 10 and 14 years old, live primarily with their mother but spend time with their father. The respondent pays $4832.00 a month in child support negotiated by the parties’ former counsel and based on the respondent’s income at the time and the Guidelines.

[3] The applicant’s income is in the range of $260,000 and $280,000 in round terms. The parties resolved many of their differences as reflected in an order dated June 2, 2017 of Vogelsang J. based on Partial Minutes of Settlement. Pursuant to its terms, the applicant has received an equalization payment of in excess of $500,000.

The Parties’ Positions

[4] The respondent deposes that all property issues between the parties have been finally resolved and that he has provided child support in accordance with the Guidelines as previously negotiated through counsel. The parties have been separated for four years now there is no prospect of reconciliation.

[5] The applicant deposes that the support paid by the respondent does not reflect his current and true income, which is higher that he says. He has not contributed to s.7 expenses. Finally, she deposes that if the divorce proceeds, she will lose the extended health benefits available to her as a spouse. She also notes that her claim to spousal support is outstanding.

The Law

[6] Rule 12 (6) provides:

The court may, on motion, 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.

[7] Justice Mitrow has helpfully summarized the relevant law respecting severance in Shawyer v. Shawyer, 2016 ONSC 2093 which I need not review at length. The important point is that each case must be decided on its own facts.

[8] In some decisions, a severance was refused where the judge was unable to determine whether appropriate child support was being paid given the state of the disclosure. In others, the court grappled with whether the loss of health care benefits was prejudicial. Courts have come to different conclusions based on the relevant factual circumstances.

Analysis and Disposition

[9] I am persuaded that the respondent’s request for a severance should be granted, for several reasons. First, reasonable arrangements for child support have been made. In my view, arrangements need not be perfect. Here, the children can certainly be adequately cared for given the quantum paid. The payments also bear some correlation to the Guidelines and already noted, were agreed to by the parties some time ago with the assistance of counsel. I recognize there may be an issue with respect to the true quantum of the respondent’s income for the purposes of calculating child support but that should not in itself preclude a severance at this time. Child support payments are routinely adjusted to reflect changes in income. Put another way, I cannot say that the arrangements are not reasonable because they are subject to possible adjustment.

[10] The s.7 expenses are also unsettled. They relate primarily to expenses apparently paid to the applicant’s mother to act as the children’s nanny. I have no invoices or receipts related to those services, for which the respondent questions the need. There are expenses for music lessons and counselling as well, which the respondent says should be covered in the existing order.

[11] There is no evidence that the applicant cannot afford these expenses at this time. If they are determined to be appropriate s. 7 expenses, she will be reimbursed. Furthermore, the respondent deposes that there are no outstanding health care expenses for the children, which might otherwise be of concern.

[12] With respect to health care benefits, both parties have access to plans. The applicant submits that the respondent’s plan provides a superior level of benefits and reimbursement. That may be so, but her loss of those benefits – for example for eyeglasses – does not amount to the kind of prejudice that should stand in the way of a severance. Any disadvantage is minimal. The loss of those benefits will be the result of

[13] If the parties cannot agree on costs, I will receive brief written submissions by March 16, 2018.

”Justice H.A. Rady”

Justice H. A. Rady

Date: March 5, 2018