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It’s not uncommon for couples going through a divorce or separation to disagree of what they think the other is entitled to in terms of spousal support, child support, and the division of property. A recent decision from the Ontario Superior Court of Justice serves as a good example of how the courts might navigate through these intertwined issues.
The family
The couple were married for over 19 years before they separated in January 2016. They lived under the same roof in the matrimonial home for a few months before the mother moved out with their three children. They moved into a home purchased by a mortgage secured by the mother. The father, meanwhile, continued to live in the matrimonial home, which did not have a mortgage. The parties shares expenses related to it, including property taxes and insurance.
The mother has a 49% ownership interest in a pharmacy where she works. This earns her a six-figure income. The father works on the family farm and is a volunteer firefighter. He earns a modest five-figure income from this work.
Since the separation, the parties have not paid each other child support, spousal support, or occupation rent. By the time the trial came around, the mother was bringing a motion for interim child support, occupation rent, and an order for the sale of the matrimonial home. The husband, meanwhile, sought interim spousal support.
Spousal support
The father testified he had been living off this Tax-Free Savings Account (“TFSA”) since the separation, having depleted the account from $43,700 down to $6,870. He pointed to the disparity between the incomes of him and the mother. In his application he sought spousal support retroactive to the date of the separation. The mother, meanwhile, argued that the depletion of the father’s savings happened shortly after the separation, and that its balance has remained fairly level since. She also testified that he spent $20,000 on a jet ski after their separation. Nevertheless, the court found there was some evidence to indicate a need for spousal support.
The parties were not able to agree on the father’s annual income. He claimed it to be $28,000 while she said it was closer to $40,000 after taking cash income into account. The court sided with the father. The wife’s income was assessed according to her 2017 income tax return, with that amount being $264,000.
The parties were ordered to calculate spousal support costs based on their incomes as determined by the court.
Child support
The parties entered into an arrangement in June 2018 which saw them sharing joint custody of the children, though they lived primarily with their mother, who had the final say with respect to education and extra-curricular activities. The father was to have parenting time with the children on alternate weekends and other times agreed on by the parties.
The mother sought child support from the date of separation. Based on the father’s income of $28,000, he had been ordered to pay $582 per month until September 2018, and $428 per month thereafter. The court did not change this amount, but did add an additional $75 per month to cover Section 7 expenses.
Occupation Rent
The mother sought occupation rent from the father, who remained in the matrimonial home. The mother argued the home could be rented out, and was seeking rent of $600 per month from the father. She arrived at that figure by cutting in half the monthly mortgage payments she has on her new home.
The couple was not able to agree on the value of the home. The father said it was worth approximately $510,000 while the mother estimated its value to be $765,000. The court was critical of the mother’s failure to provide details on property tax, insurance, and the contributions each party made to the home. Without her doing so, the court found itself without sufficient evidence to support an order for payment of occupation rent. The court also found it unreasonable at this time to force the father to sell the home, which had been built on his family’s property. The court also pointed to the fact that the home was used as security when the mother took out a new mortgage.
Jason P. Howie helps clients with all types of family law issues, including separation and divorce, and issues around the child and spousal support. With over 25 years of experience in helping clients through the stress and strain of a relationship ending, we have seen it all and take pride in helping our clients reach solutions for their family law issues. We are proud to state that most of our clients come by way of referral from former and current clients, as well as by lawyers, accountants and other professionals. Please call us at 519.973.1500 or reach us online to see how we can help you today.
