Understanding Income Motions: Smith v. Smith, 2019 ONSC 83

Background

This case addresses income motions and the preparation required to meet them. The parties separated in January 2016, after nineteen and a half years of marriage. They continued to live separate and apart under the same roof until March of 2016. It was then that the wife and the parties’ three children moved out of the matrimonial home. The wife took out a mortgage to purchase a home that she and the children have been living in since spring of 2016.

Meanwhile, the husband continued to live in the matrimonial home, which is mortgage-free. Subsequent to the date of separation, the parties shared expenses related to the matrimonial home (i.e., property taxes and insurance). However, the husband has recently assumed full responsibility for expenses related to the matrimonial home.

There is a significant disparity in the parties’ respective incomes. The wife earns a six-figure income and has a 49% ownership interest in a pharmacy. The husband works as a volunteer firefighter and contributes to his family’s farm. He earns a five-figure income. His ownership stake in the family farm is an issue in the parties’ dispute. No child support, spousal support, or occupation rent have been paid since the date of separation.

The husband brought a motion for interim spousal support. In response, the wife brought a motion for: (a) interim child support, (b) occupation rent, and (c) an order for the sale of the matrimonial home owned by the parties as joint tenants.

Analysis

The husband was awarded interim spousal support and the wife was awarded child support. The child support amount would be reduced a month later, after the eldest child left home to attend university. There was no dispute that the wife had paid for all of the children’s section 7 expenses. However, the husband argued that some of the expenses were unnecessary and contributed to a lavish lifestyle. The court refused to undertake a detailed analysis, and the judge based his decision on the father’s interim contribution to section 7 expenses on a figure of $9,000, rather than the $12,000 that the mother was seeking. It is not clear why, however the judge decided that this was a more reasonable figure.

Regarding occupation rent, the judge dismissed the wife’s claim due to a lack of evidence. Though she had ample time to review the average rent in the area, as well as the household expenses, the wife submitted no such evidence. As such, the court dismissed it without prejudice. The husband put forth evidence that the matrimonial home is situated on a piece of property that was severed from his parents’ family farm. As a result, the home has sentimental value to him. The judge found it unreasonable to require the husband to move out of the matrimonial home prior to the issues of net family property being determined, and as such dismissed the wife’s motion for sale of the home.

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