COURT FILE NO.: FC-18-1478-0
DATE: 20191203
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Lori May Mary Wickert, Applicant
AND
Gregory Claude Peter Matte, Respondent
BEFORE: Justice Robert J. Smith
COUNSEL: Ian C. Vallance, for the Applicant
Michèle Labrosse, for the Respondent
HEARD: November 28, 2019
ENDORSEMENT
[1] The Applicant Lori Wickert has brought a motion for interim spousal support along with a number of incidental matters including maintaining life insurance, disclosure of certain items, removal of his belongings and sale of the matrimonial home. She did not argue the issue of child support for the youngest child who is in third year university.
[2] The parties are both 56 years of age and were married for 28 years. The Respondent has had a very successful career in the Canadian Airforce achieving the rank of Brigadier General. The Applicant has obtained two Master’s degrees in the geology field and is hopeful that she will obtain full-time employment in the future. However she is not currently working on a full-time basis and only works on contract from time to time. She has sworn that she will earn $34,466.00 in 2019 and she earned $60,950.00 in 2018.
[3] The Respondent decided to leave the marriage on August 1, 2019 to live with his girlfriend in Victoria, British Columbia. The Applicant was taken surprised by the separation as she was unaware that the Respondent had been having a sexual relationship with his girlfriend for 2 years before separation.
[4] The Respondent husband agreed that the wife was entitled to receive interim spousal support, but submitted as follows:
a) That income should not be imputed to him as a result of leaving/or being terminated without cause from H2H, as this required findings of credibility that could not be made on this motion;
b) That interim retroactive spousal support should not be awarded, but rather should be adjusted upon the sale of the matrimonial home and if retroactive support was to be granted I should assume that the wife earned $60,000.00 in 2019 (the same amount she earned in 2018); and
c) That the Respondent should receive credit for half of the expenses he paid for the matrimonial home plus the interest on the $28,000.00 taken by the Applicant on their joint line of credit.
A. Sale of the Matrimonial Home
[5] The parties agree that the matrimonial home should be listed and sold. I order as follows in this regard:
a) The Respondent/Husband will make arrangements for the removal of his remaining items in the matrimonial home by January 31, 2020.
b) The matrimonial home, known as 6370 Deer Valley Crescent, Greely, Ontario shall be listed for immediate sale, with a mutually agreeable real estate agent, no later than January 15, 2020. The Listing Agreement shall be concluded within thirty (30) days.
c) The Respondent shall initially pay for the expenses to ready the matrimonial home for sale, as recommended by the listing agent and consented to by both parties, such consent not to be unreasonably withheld. These expenses shall be shared equally from the proceeds of the sale of the matrimonial home.
d) The proceeds of sale of the matrimonial home shall be held in truyst pending futher Order or Agreement between the parties.
B. Division of Respondent’s Pension
[6] The parties agree that the Respondent’s pension shall be divided as of the date of separation. This will provide a substantial amount of money (approximately $700,000.00) to the Applicant which will assist the Applicant to meet financial needs.
C. Imputing Income to the Respondent
[7] The Applicant asks me to impute income to the Respondent for the purposes of spousal support because she alleges that he resigned from employment with H2H earning $191,000.00 per year in order to move to Victoria, British Columbia to live with his girlfriend. The Respondent has obtained employment as the General Manager of a flying club in Victoria earning $90,000.00 per year.
[8] The Respondent states in his affidavit that his employment with H2H was terminated without just cause and that he did not leave voluntarily. He submits that I should not decide this issue on an interim motion as I do not have sufficient evidence to make the required findings of credibility. I agree. I will not impute income to the Respondent for purposes of interim spousal support. The issue of imputing income to the Respondent may be dealt with at trial on a full record.
D. Retroactive Spousal Support
[9] The Applicant seeks an order for retroactive spousal support commencing August 1, 2018 on the date of separation until the present at the mid to high SAGG range based on their actual 2018 incomes and based on their estimated income for 2019.
[10] The Respondent submits that retroactive support should not be ordered because he has been paying for all of the costs of maintaining the matrimonial home, including the Applicant’s half share of expenses since separation, and the Applicant has delayed bringing this motion for over a year and a half. In the alternative he submits that an income of $60,000.00 should be imputed to the Applicant for 2019 and going forward.
[11] The parties moved across Canada nine times in the last twenty years to allow the Respondent to advance in his career. The Applicant’s career was always secondary to the Respondent’s and she has worked on a part-time basis earning from $19,736.00 per year to about $60,000.00 in the last five years of earning. Her estimate of $34,000.00 for 2019 is a reasonable estimate as we have completed eleven (11) months in 2019.
[12] The parties have two children one of whom is independent and a son who is in third year University. The Respondent has been paying his rental costs and his tuition is being paid from RESP’s.
[13] In 2017 the Respondent earned a total of $270,988.00; $188,382.00 from his employment with H2H and $80,362.00 from pension income. In 2018 the Respondent earned $273,399.00; $191,391.00 from H2H and $80,632.00 from pension income. In 2019 the Respondent earned a total of $232,840.00; $83,641.47 from pension income plus $45,000.00 (6 months) from the Victoria Flying Club, plus he received a severance of $104,199.00 from H2H. On an ongoing basis the Respondent will earn $92,670.00 from pension income plus $90,000.00 from the Flying Club for a total of $182,670.00.
[14] The parties actual incomes are known for 2018 and reasonably estimated for 2019. I see no reason why interim spousal support should not commence as of the date of separation based on the parties’ incomes. The Applicant has demonstrated her need for support and the Respondent has the ability to pay. The sums paid by the Respondent for the Applicant’s half share of the expenses related to the matrimonial home, the truck and trailer, and the interest on the line of credit and the family health insurance plan shall be credited to him, for a total of $1950.00 per month.
For 2018
[15] The parties agree that $28,632.00 per year of the Respondent’s annual pension income will not be equalized. The Respondent’s income for 2018, including only his non-equalized pension income was $220,023.00 ($28,632.00 plus employment income of $191,391.00). The Applicant’s income was $60,950.00. Using the mid-range of the SAGG results in a spousal support payment of $5800.00 per month (the high range is $6628.00 per month). I order the Respondent to pay monthly interim spousal support to the Applicant of $5800.00 per month for which he will receive a credit of $1950.00 per month ($5800.00-$1950.00) for net retroactive amount of $3750.00 per month commencing August 1, 2018.
For 2019
[16] The Respondent earned income of $177,831.00 in 2019 ($28,632 + $104,199.00 + $45,000.00). The Applicant will earn $34,466.00 for 2019. The mid-range SAGG amount for spousal support is $5227.00 per month. The Respondent’s spousal support for 2019 is set at $5227.00 per month commencing on January 1, 2019 until December 31, 2019. The Respondent shall receive a credit of $1950.00 per month for payment of the expenses for the matrimonial home and other expenses for a net monthly payment of $3275.00 per month commencing on January 1, 2020.
Ongoing (2020)
[17] The Respondent is expected to earn $118,632.00 per year ($90,000.00 + $28,632.00) in 2020. The wife is expected to earn $34,466. The wife will commence paying for half of the mortgage payments, property taxes, house insurance, truck and trailer insurance, of interest on the line of credit and family health insurance. The mid-range interim spousal support based on the SAGG for these incomes is about $3100.00 per month ($3123.00 if Applicant earned $32, 964.00). The Respondent is ordered to pay ongoing interim monthly spousal support of $3100.00 per month commencing January 1, 2020 and monthly thereafter.
Costs
[18] If the parties are unable to agree on costs they may each make submissions within 15 days.
Mister Justice Robert J. Smith
Date: December 3, 2019
COURT FILE NO.: FC-18-1478-0
DATE: 20191203
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Lori May Mary Wickert, Applicant
AND
Gregory Claude Peter Matte, Respondent
BEFORE: Honourable Justice Robert J. Smith
COUNSEL: Ian C. Vallance, for the Applicant
Michèle Labrosse, for the Respondent
ENDORSEMENT
R. Smith J.
Released: December 3, 2019