Court File and Parties
COURT FILE NO.: FC-18-1663 DATE: 2019/05/03 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jayme Raynald Querry, Applicant AND Britt Adrienne Ostrander, Respondent
BEFORE: Justice Linhares de Sousa
COUNSEL: Michele D. Blais, Counsel for the Applicant Alice Weatherston, Counsel for the Respondent
HEARD: April 4, 2019 (Ottawa)
Endorsement
Overview
1This matter concerns a motion and cross-motion brought by the parties. The Respondent –mother, Britt Adrienne Ostrander, brings a motion seeking interim child and spousal support from the Applicant –father, Jayme Raynald Querry. There was also a claim for an order dealing with the proceeds of the sale of the matrimonial home but that issue has now been resolved by the parties for the time being and is not an issue before me.
2In his cross-motion, Mr. Querry seeks the following orders:
- That Ms. Ostrander be imputed an annual income of $51,324.00 for the purposes of determining interim spousal and child support;
- That his annual income for support purposes be considered to be $188,534.39, taking account of his deductions for employment expenses; and
- That Ms. Ostrander pay her after tax proportionate share of the children’s day care expenses.
3Mr. Querry also sought relief dealing with parenting issues and property issues, both of which, for the time being, have been resolved by the parties and were not in issue for this motion.
Background
4Briefly, the factual background of this motion is as follows.
5The parties began cohabiting in 2003 and were married in 2005.
6The parties are the biological parents of two children, Jackson Querry (born November 5, 2008) and Ryan Cameron Querry (born May 14, 2010). Mr. Querry also has a 17 year old son from a previous relationship, Ethan Alexandre Lefebvre, who lived with the couple and now lives with Mr. Querry, on a week-on, week-off basis with Ethan’s other parent. Mr. Querry provides support for Ethan, who will probably be attending post-secondary education next year.
7The parties separated sometime in March, 2016, after a 14 year relationship, but continued living together in the matrimonial home until sometime in February, 2017, when Ms. Ostrander left the matrimonial home to live with her next door neighbor, with whom she had developed a romantic attachment. Whether Ms. Ostrander was forced out of the home by Mr. Querry, as she alleges, is in dispute between the parties and I need not resolve this issue. It is clear that Mr. Querry did not want Ms. Ostrander to remain in the home after their separation.
8The parties could not agree on what support Ms. Ostrander should receive on leaving the home. Ms. Ostrander left the home without any agreement between the parties as to what support, if any, she should receive. Mr. Querry only began to voluntarily provide her with child support, at an amount he determined ($2,176.00 per month), in August of 2017, some 7 months after she left the matrimonial home. Mr. Querry has paid for all of the children’s extra-curricular activities and section 7 expenses since that time.
9Upon their separation, the parties entered into an equal parenting arrangement of their two children which has continued to the present. The co-parenting arrangement was incorporated into the interim order of Justice Shelston dated October 29, 2018.
10The matrimonial home has now been sold and the proceeds from that sale are being held in trust, pending the resolution of the matrimonial issues in this case. Following the sale of the matrimonial home, Mr. Querry acquired a townhouse rental within 5 minutes of Ms. Ostrander’s current address where he lives with his children and Ethan when he cares for them.
11Ms. Ostrander continues to live with her former neighbor and with her two children when she cares for them.
The Support Dispute and Financial Positions
12The issue of child support is not in dispute between the parties. The parties do not disagree that child support should be in accordance with the child support guidelines as they apply to their co-parenting arrangement and will involve a set-off approach. The question of spousal support remains the very seriously contested issue between the parties.
13At the time of the separation and continuing to the present, Mr. Querry was employed full-time as a portfolio manager and as an investment advisor for the TD Bank. His income is 100% commission based and changes from year to year. In addition, as a result of certain employment expenses that he says he incurs, Mr. Querry, for income tax purposes, is permitted to deduct employment expenses, which also vary on an annual basis.
14At the time of the separation Ms. Ostrander was employed part-time as a behavioral specialist at the Acquired Brain Injury Unit at the Ottawa Hospital. Ms. Ostrander stayed home and worked part-time prior to the children going to school full-time. She continued to work part-time for the duration of the relationship. Whether this was done with the consent of both parties was in dispute as was what roles each played in the historical care of their children. The merits of these issues will be resolved on the merits at a future time. It is a fact that Ms. Ostrander has held various positions for 19 years at the Ottawa Hospital and has only worked on a part-time basis.
15The evidence showed that she is currently on medical leave because of health issues that Ms. Ostrander indicates is directly related to her financial instability and the breakdown of the parties’ relationship.
16It was the evidence of Ms. Ostrander that after the separation she applied for a number of lucrative and permanent positions in her field but ultimately could only find permanent part-time work with a guaranteed number of shifts per month. In this way she attained her greatest salary since she commenced working in her field.
17Ms. Ostrander has also provided medical evidence, dated October 25, 2018 and November 27, 2018, indicating that she suffers from “chronic adjustment disorder”, with progressively worsening depression and anxiety”. These medical issues, according to Ms. Ostrander, has prevented her from properly meeting the demands of her job, which is why she is currently on medical leave.
18Mr. Querry questions this evidence as being self-reporting. Nonetheless, it is the only medical evidence before the court. The parties’ dispute over support has prevented them from arriving at some workable and mutually agreed financial arrangement for their family, which necessitated this motion. I interpret the medical evidence filed by Ms. Ostrander, relating to her medical leave, as transitory and related to the uncertainty of these legal issues and the matrimonial conflict.
19The financial evidence presented on the motion shows that over the years of their relationship, the annual income of the parties has been very disparate and that Mr. Querry has been the primary financial support of the family. The following evidence shows their respective earnings for the years in question:
| YEAR | MRS. OSTRANDER | MR. QUERRY |
|---|---|---|
| 2011 | $6,394 | $116,672 |
| 2012 | $24,329 | $118,302 |
| 2013 | $20,959 | $136,303 |
| 2014 | $14,995 | $173,820 |
| 2015 | $21,201 | $195,044 |
| 2016 | $23,278 | $193,751 |
| 2017 | $26,499 | $211,507 |
| 2018 | $7,740 | $236,988 |
Spousal Support and Imputed Income
20Mr. Querry argues that Ms. Ostrander is not entitled to interim spousal support and that the court ought to impute a full-time salary to her at $51,324.00 per year. He has provided the evidentiary basis for that annual income obtained from the Occupational & Labour Market Analysis dated January 14, 2019. This evidence has not been tested.
21I reject this position as not being supported by the preponderance of the evidence. There is no factual basis for imputing at this time an annual income of $51,324.00 to Ms. Ostrander. Given the way the parties organized their financial and family circumstances for almost the full duration of their relationship, Ms. Ostrander has only worked part-time. Her highest earnings were in the $26,000.00 range in the year of their physical separation which, I might add, is consistent with Ms. Ostrander’s evidence that post-separation she tried to get as much work as possible at the Ottawa Hospital before she had to go on medical leave.
22On the facts of this case I have no difficulty coming to the conclusion that on an interim basis Ms. Ostrander is entitled to spousal support on a non-compensatory basis. She may also be entitled to compensatory support but that issue need not be decided on this motion.
23At the separation Ms. Ostrander was clearly in a position of need. She left the matrimonial home in a position of need and was caring for her children on an equal basis with Mr. Querry. She continues to be in a position of financial need. The fact that she currently lives with someone who Mr. Querry maintains is able to support his spouse does not relieve him of his own legal obligation to financially contribute to the non-compensatory support of his spouse upon the separation in the circumstances of this case.
24It is the evidence of Ms. Ostrander that she will have to pay back the financial assistance her current partner has extended to her since she moved into his household. Furthermore, spousal support ought to have been paid from, February, 2017, from the time of the physical separation of the parties, and in accordance with the spousal support advisory guidelines. I can find no reason why those guidelines would not apply in this case, using Mr. Querry’s actual annual income.
25I accept, on the evidence that Ms. Ostrander, for medical reasons, is at this time not able to work to her maximum part-time level because of her bouts of depression and anxiety. At the same time, on the evidence, her medical situation appears to be related to her the uncertainty of her marital situation and financial instability. This is temporary, a substantial portion of which will be resolved upon the termination of this motion. I would allow Ms. Ostrander 3 to 4 months to continue with her treatment and to heal.
26Commencing in September 1, 2019, I would impute a part-time salary to her of $26,000.00 per annum for spousal support purposes. Her ability and obligation to work full-time and to earn more, will be decided at a future time on the merits.
Mr. Querry's Income
27With respect to the annual income of Mr. Querry, for purposes of both spousal and child support it is evident that his income does fluctuate from year to year. The highest salary earned by him was in 2018 ($236,988.00) and included a one-time RSU lump sum payment of $25,242.87 for, which, if deducted, leaves him with an annual income for that year of $211,745.13.
28The parties disagree as to whether this one time lump sum payment received in 2018 should be deducted from Mr. Querry’s income for support purposes and dealt with as a future property division issue between the parties.
29Both counsel have referred me to the jurisprudence on this issue. The case law is not clear on how to treat these payments, some cases dealing with them as a property issue and others as a support issue. What is clear, is that it cannot be treated as both. After considering the jurisprudence and hearing the submissions of counsel on this question, I am persuaded that the one-time RSU payment should continue to make up Mr. Querry’s income for that year for support purposes. My reason for this conclusion is that this one-time payment is readily available to Mr. Querry and is related to his employment remuneration. Mr. Querry has immediate access to the funds, controls them and can make use of them as he sees fit even for his own use now. In view of the immediate access Mr. Querry has to these funds, there is no reason why the family should also not benefit from this income now.
30With respect to the question of what, if any, employment expenses Mr. Querry ought to be able to deduct for support purposes, I am cognizant of the fact that the court for support purposes, is not bound to accept all of the expenses, Mr. Querry is able to deduct for income tax purposes. However, without the benefit of some testing of those expenses, by way of cross-examination, the benefit of which, I do not have, I must conclude that, in fairness to Mr. Querry, he should be allowed those deductions, as shown on his income tax returns until further order of the court. This decision is made without prejudice to Ms. Ostrander’s ability to seek a retroactive accounting of those expenses, should the court conclude otherwise at a future date.
31Mr. Querry has also requested that his financial obligations for his son Ethan and his anticipated section 7 expenses towards Ethan be factored in so as to reduce his obligation to pay Ms. Ostrander spousal support. Mr. Querry’s monthly support obligations towards Ethan are clear and quantifiable and I would account for those ongoing support payments ($8,700.00 per year). In other words accord Mr. Querry the benefit of deducting what support he pays for Ethan on a monthly basis.
32However, with respect to Ethan’s anticipated section 7 expenses for his post-secondary education, I find that claim, on the evidence, unsupported, unclear and subject to too many variables on which to base an order today. There is no evidence as to what independent resources Ethan may have to fund his own post-secondary education. Ms. Ostrander indicates that there is an RESP for Ethan. There is no evidence as to whether Ethan can work or obtain government loans in order to assist him with his post-secondary education. All of this could have a bearing on Mr. Querry’s ultimate obligation towards Ethan relating to his university education. That deduction should not be considered at this time.
Support Calculations
33At the end of the motion I requested counsel to provide me with Divorcemate calculations scenarios based on the potential outcomes of this motion. Counsel have now provided me with their Joint Divorcemate Calculations and I am grateful to them for having done that.
34Based on my rulings above and the Divorcemate calculations provided by counsel, tabs 5 and 8 of those calculations would apply. Tab 5 being applicable immediately and tab 8 being applicable commencing in September, 2019 when Ms. Ostrander can be imputed a part-time annual salary of $26,000.00 per year.
35Hence, for purposes of interim spousal and child support, Mr. Querry’s income is declared to be $236,988.00 with permitted business expenses of $17,133.00 for that year and permitting a deduction of prior support payments of $8,700.00 for Ethan. Ms. Ostrander’s income is taken to be currently zero. Applying the child support guidelines and spousal support advisory guidelines, Mr. Querry is ordered to pay Ms. Ostrander $2,915.00 per month in child support and $2,750.00 per month in spousal support in the low range which gives the parties roughly equal NDI, which in my view is fair on an interim basis.
36The interim child and spousal support ordered above takes effect on January 1, 2018 and continues until September 1, 2019. Mr. Querry is, of course, to be given credit for any child support he has already paid Ms. Ostrander during that same period.
37Effective September 1, 2019, an income of $26,000.00 shall be imputed to Ms. Ostrander. Mr. Querry’s declared income for child and spousal support shall continue to be as above with the same deductions being made. Applying the child support guidelines and spousal support advisory guidelines, it is ordered that commencing September 1, 2019 Mr. Querry is ordered to pay Ms. Ostrander $2,521.00 per month in child support and $2,449.00 per month in spousal support in the low range which will give the parties roughly equal NDI.
38Furthermore, Mr. Querry ought to have also paid both child and spousal support from February 1, 2017, when the parties physically separated to December 1, 2017, inclusive, in accordance with the child support guidelines and the spousal support advisory guidelines and I so order that this support be paid retroactively.
39With respect to the calculation of the quantum of child and spousal support for the retroactive period of February 1, 2017 to December 1, 2017, inclusive, the following will be applied. Ms. Ostrander earned an income of $26,499.00 in 2017. Mr. Querry’s declared income for that year was $211,507.00. For support purposes, he is able to deduct his business expenses for that year ($17,015.00) in addition to $8,700.00 for the support payments for Ethan.
40Counsel can do the Divorcemate calculations to determine the retroactive child and spousal support owed by Mr. Querry to Ms. Ostrander for that period. Mr. Querry should, of course, be given credit to him for any amount of child support paid by him to Ms. Ostrander during that same period, which child support I believe commenced voluntarily in August, 2017.
41It appears to me that tab 4 of the Parties’ Joint Divorcemate Calculation Scenario produces the appropriate and applicable calculations for this retroactive period. Based on the calculations found at tab 4, Mr. Querry is ordered to pay for the period between February 1, 2017 and December 1, 2017, inclusive, $2,218.00 in child support and $2,042.00 in spousal support at the low level which gives the parties roughly equal NDI. If counsel have any difficulty with these calculations, I can be spoken to.
Section 7 Expenses
42With respect to the children’s section 7 expenses, each party shall pay a proportional share of those expenses commensurate with their respective incomes, after deducting the spousal support paid by Mr. Querry from his income and adding the spousal support received by Ms. Ostrander to her income. Now that the spousal support due to Ms. Ostrander can be calculated and determined, the proportional sharing of the children’s section 7 expenses can also be calculated and is to apply from February 1, 2017 and ongoing.
Costs
43The last issue is costs. Mr. Querry shall have two weeks from the date of this endorsement to serve and file his written submissions on costs, including any offer to settle. Ms. Ostrander shall have two weeks from that date to serve and file her written submissions on costs, including any offer to offer to settle. Mr. Querry shall then have one week from that date to serve and file a reply, if he deems it advisable.
Linhares de Sousa J. Date: May 03, 2019
COURT FILE NO.: FC-18-1663 DATE: 2019/05/03 ONTARIO SUPERIOR COURT OF JUSTICE
RE: Jayme Raynald Querry, Applicant AND Britt Adrienne Ostrander, Respondent
BEFORE: Linhares De Sousa J.
COUNSEL: Counsel, for the Plaintiffs/Respondents Counsel, for the Defendant/Applicant
ENDORSEMENT
Released: May 03, 2019