COURT FILE NO.: FS-17-88325 DATE: 20181206
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Tracey Hamilton, Applicant - and – Miles Andrew Hunter, Respondent
BEFORE: FRAGOMENI J.
COUNSEL: Malerie Rose, for the Applicant Dean Allison, for the Respondent
HEARD: December 4, 2018
Endorsement
[1] The Respondent husband brings a motion to deal with the following two issues:
- a variation of the temporary spousal support in the sum of $7,275.00 ordered by Justice Trimble on October 5, 2017;
- that the applicant wife pay child support for the two children of the marriage, Lauren MacKenzie Hunter, born October 6, 1998 and Rachel Taylor Hunter, born November 6, 1996, in accordance with the child support table amount retroactive to February 1, 2018.
[2] The husband’s position at the motion is that there has been a material change in circumstances that warrants a reduction in the temporary order.
[3] The wife argues that the issue of temporary spousal support has already been decided by Justice Trimble on the same arguments the husband is making at this motion and, therefore, the issue is res judicata.
[4] The wife argues further that in any event there is no material change in circumstances.
October 5, 2017 Order of Trimble J.
[5] Justice Trimble deals with spousal support at paragraph 8 of his order as follows:
The Respondent Husband, Miles Andrew Hunter, shall pay to the Applicant Wife, Tracey Hamilton, interim monthly spousal support in the amount of $7,275.00 per month, calculated on the Respondent Husband’s 2014 to 2016 3-year average income of $319,000.00 and the Applicant Wife’s of $19,000.00 at the midrange of the SSAGs, calculating 1 child living with the Respondent Husband, commencing on the 15th day after the closing of the sale of the Matrimonial Home, and paid monthly thereafter. A Support Deduction Order shall issue once the date of the 1st payment is ascertained.
[6] In his handwritten endorsement of October 5, 2017, Justice Trimble notes the following, in part:
This order is an interim order. There is conflicting evidence. The Application is only 10 months old. The parties have fluctuating incomes (his is based on commissions and hers is part-time). For these reasons, among others, it is appropriate to use a three year average for each spouse, for incomes 2014-2016. Because their incomes fluctuate it is not appropriate that I extrapolate for 2017 and use that income to calculate interim spousal support. Therefore, interim spousal support shall be calculated on the husband’s 3 year average income of $319,000 and wife’s income of $19,000 at the mid-range of the SSAGs calculating 1 child being with the husband, which results in a monthly spousal support payment by the husband to the wife of $7,275.00/month. By agreement, the interim spousal support per month will begin on the 15th day after the closing of the sale of the house…
[7] The house sale closed on February 23, 2018 so the first payment was due March 15, 2018.
[8] At paras. 57 and 58 of her factum, the wife sets out the following:
At the Motion on October 5, 2017, before the Honourable Justice Trimble, the Respondent argued the following (See the summary of Argument dated September 27, 2017 as filed by the Respondent): a) The Applicant earns at least $37,277.50 per annum b) The Respondent only earns $125,000 per annum with a bonus that is not guaranteed. c) The court should order support based on an income for the Respondent of $193,917 and an income for the Applicant wife of $40,000. d) The parties incomes vary each year. e) The court should not have taken a one-time payment received by him into account when calculating the support payable. f) Both children would be residing with him once the home was sold g) The Applicant has more money than she claimed to have
These assertions were considered by Justice Trimble. The Respondent seeks to rely on the same arguments now to reduce the temporary spousal support, so the issue of temporary spousal support is res judicata.
[9] I agree with the position of the wife on this issue. The husband now wants the court to vary Justice Trimble’s order to reflect the actual 2017 incomes of the parties, namely $48,564 for the wife and $286,395 for the husband.
[10] Justice Trimble, however, rejected that approach on the basis that the parties’ incomes fluctuate and as such he took a three year average.
[11] I am satisfied that the temporary order ought to continue.
[12] In any event, the onus on the husband to establish a substantial change in circumstances has not been met. The issues relating to a final order for spousal support are best left to be determined at trial with a full evidentiary record. Counsel advise that a settlement conference has been held about six weeks ago. It is my view that this matter should proceed to trial or mediation if the parties agree. The trial judge will be in the best position to consider and assess the issues surrounding spousal support, such as the actual incomes of the parties. For example, the wife’s doctor, Dr. Frederic Grainger, sets out in a letter dated October 18, 2018 that the wife’s work schedule is reduced to 2 days a week and only 4 hours a day due to bursitis in her right shoulder and arthritis in her neck. The status of her ability to work will be a live issue at trial.
[13] On the evidentiary record before me the husband’s motion to vary Justice Trimble’s October 5, 2017 temporary order is dismissed. There are no compelling reasons to vary the order prior to trial. In Simmons v. Simmons, 2011 ONSC 5020 the Court set out the following at paras. 25 and 26:
As a result, interim orders are not varied lightly. The court in Huculak v. Huculak, [1998] B.C.J. No. 242 (B.C.C.A. [In Chambers]) at para. 3 makes it clear that an interim variation of an interim support order is not granted lightly:
It is fair to say that previous cases, both in this court and in the Supreme Court, have made it clear that variations to interim maintenance orders are not granted lightly. There are sound policy reasons for that because if that were not the case, there would be a considerable expenditure of judicial and legal time and resources on matters that are in their nature of an interim or temporary nature and subject always to revision at the trial of the matter. In the recent case of Spolenti v. Spolenti, [1996] B.C.J. No. 965 (9 December 1997), Prince George Docket 31411, Master Chamberlist, at p. 3, noted the following:
It is important to keep in mind that the applicant seeks to vary the terms of an interim support order. In Coley v. Coley, 20 R.F.L. (2d) 327, the Manitoba Court of Appeal stated at page 327 of that decision:
Applications to vary interim orders are rare. There is a heavy onus on the person who, instead of waiting until the trial takes place, brings on a motion to vary the interim order.
In Coley v. Coley, [1981] M.J. No. 57 (Man C.A.) the court stated at para. 3 that “Applications to vary interim orders are rare. There is a heavy onus on the person who, instead of waiting until the trial takes place, brings a motion to vary the interim order.”
Child Support
[14] The wife agrees to pay child support in the sum of $266 per month based on a three year average of their respective incomes. I am satisfied such an order is appropriate, without prejudice to any adjustments that may be made by the trial judge.
[15] Order to issue as follows:
- The husband’s motion to vary the temporary order of Justice Trimble dated October 5, 2017 is dismissed;
- The Applicant wife shall pay to the Respondent husband child support for the two children of the marriage in the sum of $266.00 per month commencing December 1, 2018, without prejudice to ongoing or retroactive adjustments that may be made by the trial judge;
- The parties shall file written submissions on costs within 20 days.