COURT FILE NO.: 53504-18

DATE: 2019/08/20

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Linda Marie Webster, Applicant

AND:

David Allan Juniper, Respondent

BEFORE: Mr. Justice G.E. Taylor

COUNSEL: Randy S. Brant and Kayla Gordon, Counsel for the Applicant

Patrick Morris, Counsel for the Respondent

HEARD: August 9, 2019

ENDORSEMENT

Introduction

[1] This is a motion for interim spousal support and other related relief.

[2] The applicant is 61 years of age and the respondent is 57 years of age. The parties began cohabiting in the fall of 1994 or the spring of 1995. They were married on July 6, 1996 and they separated in May 2015. There are no children of the marriage.

[3] The applicant operates a tutoring business from which she earned $145,000 in 2017. The respondent is an investment advisor operating his own firm. He earned $755,000 in 2017 and $661,000 in 2015, the year of separation.

[4] The applicant seeks support based on both compensatory and non-compensatory principles. The respondent takes the position there is no entitlement to support.

Evidence

[5] The parties met in 1994. The applicant says they began cohabiting in the fall of 1994 while the respondent maintains that cohabitation did not begin until the spring of 1995. This is a minor discrepancy. The parties were married on July 6, 1996. They separated on May 9, 2015. The significant point is that this relationship existed for in excess of 20 years. There are no children of the relationship.

[6] The applicant was born on October 9, 1957. The respondent was born on April 4, 1962. The applicant was therefore 38 years of age and the respondent was 34 years of age at the date of the marriage. At the date of the marriage the applicant was employed as a Vice Principal with the Waterloo District School Board. She was earning approximately $74,000 per year. The respondent was an investment advisor with Scotia McLeod earning approximately $250,000 per year.

[7] In 2002, the applicant began her own tutoring business called Webster Educational Services. In August 2016 the applicant incorporated Webster Educational Services Inc. through which she continues to operate the tutoring business. In 2004, the respondent incorporated David Juniper Investments Inc. through which he continues to operate his investment advisor business.

[8] The parties retained Alison Sawatsky of Sawatsky Valuations to determne their respective incomes for the purpose of this proceeding. Ms. Sawatsky determined the parties’ incomes as follows:

Applicant Respondent

2014 $151,582 $669,000

2015 $155,000 $661,000

2016 $155,000 $661,000

2017 $145,000 $755,000

The evidence of the applicant’s 2018 income is from her income tax return which shows line 150 income of $95,250. (It is noted that the applicant’s line 150 income as per her 2017 income tax return was $98,240). The applicant estimates that her total income earned in 2018, including income earned by her corporation, was $117,500. The respondent did not produce a copy of his 2018 income tax return for the purpose of the motion. Therefore the evidence of the respondent’s 2018 income is his statement that he expects to earn the same amount in 2018 and 2019 as he did in 2017.

[9] The applicant says that the parties enjoyed a lavish lifestyle. The respondent says that they lived modestly. They made renovations to the matrimonial home which cost approximately $500,000. They had a housekeeper and a gardener. The travelled regularly, often flying first class. They acquired 5 automobiles and 7 timeshares. The timeshares were located in Hawaii, Bahamas and California.

[10] In May 2015, the respondent advised the applicant that he no longer wished to be married to her. The respondent vacated the matrimonial home in June 2015. The matrimonial home was sold for $1,220,000 with a closing date of July 21, 2017. The applicant continued to reside in the matrimonial home from the date of separation until the completion of the sale. From June 30, 2015 to the date of the closing of the sale of the matrimonial home the respondent paid 50% of the expenses relating to the matrimonial home. The respondent also paid the applicant’s monthly credit card expenses to a maximum of $3,500.

[11] Starting in January 2018, the respondent began paying $3,500 per month to the applicant. In January 2019, the respondent unilaterally reduced his monthly payment to $2,500 to secure the respondent’s contribution to the cost of maintaining the timeshares. He says he intends to return his monthly payment to $3,500 as of September 2019.

[12] In March 2018, the respondent cancelled the applicant’s medical and dental coverage through his business. He says the motivation for this was cost and that the plan was only covering himself and the applicant.

[13] According to the respondent’s Financial Statement sworn June 12, 2018, which is the only Financial Statement he has filed, his monthly expenses are in excess of $58,000 although that includes “business expenses” of $17,000. Even reducing his expenses by that amount, he spends approximately $480,000 annually.

Analysis

[14] In my view, it is significant that this is a motion for interim support to the date of the trial. At trial a decision will be made as to whether the applicant is entitled to permanent support, and if so, the amount and duration of that support. On a motion for interim support it is appropriate to make an order that will allow the support recipient to continue to live at the standard of living enjoyed during cohabitation if the payer’s ability to pay permits: Driscoll v. Driscoll, 2009 ONSC 66373, 2009 CarswellOnt 7393 at para 14.

[15] It is my view that the applicant is entitled to an award of interim support. Whether or not the lifestyle enjoyed by the parties was lavish as claimed by the applicant, I am satisfied that the parties spent generously throughout the marriage and experienced a lifestyle which saw them enjoy the material goods and amenities which they wanted. The respondent decided abruptly to end the marriage and in my view it is not up to him to decide how much support the applicant should receive.

[16] I place little emphasis on the evidence that the respondent continued to contribute to the expenses of the matrimonial home after he vacated it. The applicant had little choice but to continue to reside in and maintain the matrimonial home until it was sold. It is only reasonable that the respondent should contribute to these expenses up to the date of sale.

[17] The respondent appears to have decided that the applicant is entitled to interim support in the amount of $3,500 per month less her contribution to the timeshare expenses which the respondent has unilaterally fixed at $1,000. For the purpose of interim support, I take this as a realization by the respondent that the applicant is entitled to some amount of support pending trial.

[18] It is concerning that the respondent, without consultation with the applicant, terminated the applicant’s medical and dental insurance coverage. At a minimum, the respondent ought to pay the applicant an amount to reimburse her for dental and medical expenses which previously would have been covered by his corporation’s group health plan.

[19] The respondent’s annual expenses of approximately $480,000 are an indication of the lifestyle the parties enjoyed prior to the separation and which the respondent continues to enjoy. In my view, it is appropriate that the respondent pay interim support to the applicant pending trial to permit her to continue to enjoy a similar lifestyle.

[20] Both parties submitted DivorceMate calculations in support of their respective positions. The applicant submits that based on her income for 2017 of $145,000 and the respondent’s income for the same year of $755,000, the support range is between $15,250 and $20,333 monthly. The respondent submits that his income should be the average of his income for the three years prior to separation which is $615,000. He then submits that the midpoint between the average annual income so calculated and the $350,000 “ceiling” in the Spousal Support Advisory Guidelines is the figure to be used for the respondent’s income for support purposes. This results in an annual income of $482,000 and a range of support between $8,512 and $11,350 monthly.

[21] I find the DivorceMate calculations presented by the parties are helpful but they are not determinative. I have concluded that a reasonable and appropriate amount of interim support to be paid by the respondent to the applicant pending trial is $12,500 per month. Payment of this monthly amount is intended to permit the applicant to continue to enjoy, pending trial, a standard of living to commensurate with that enjoyed by the parties prior to separation. The respondent is well able to pay this amount. Payment of this amount will be retroactive to January 1, 2019.

Conclusion

[22] For these reasons, there will be an order that the respondent pay to the applicant as interim spousal support the sum of $12,500 per month commencing January 1, 2019, subject to credit being given for the actual payments made by the respondent to the applicant subsequent to that date.

[23] I was advised during oral argument that the parties are in agreement that each will obtain and produce reports from Ms. Sawatsky, or some other qualified professional, determining their respective incomes for 2018 for support purposes. There will be an order accordingly. The respondent is also ordered to produce a copy of his 2018 income tax return.

[24] At the conclusion of oral argument, counsel advised that they had resolved the issue of costs of the motion dependent on my endorsement. I therefore make no order as to costs, as that issue was resolved between the parties.

G.E. Taylor J.

Date: August 20, 2019