Court File No.: 550/07

Released: 20080407

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Re: Nina Antonia Pagnotta v. Paul Malozewski

Before: Molloy, Swinton and Low JJ.

Counsel: Jeffrey Wilson and Lorna M. Yates for the Applicant (Appellant)

Gordon A. Meiklejohn for the Respondent (Respondent on Appeal)

Heard at Toronto: March 31, 2008

ENDORSEMENT

[1] This is an appeal from the order of Backhouse J. made June 21, 2007 after she heard a motion for interim spousal support, among other relief.

[2] The motions judge ordered spousal support of $2,000 per month from August 2006 through August 2007. She ordered that spousal support would cease September 1, 2007, having imputed an annual income of $34,000 to the appellant wife from part-time work as a French teacher, starting September 2007. In her handwritten endorsement, she stated that it would be realistic that the appellant would be working full-time by September 2008.

[3] The endorsement does not indicate that this is an interim order for spousal support. On September 28, 2007, the motions judge signed an order that had two boxes on the first page: one indicating that the order was temporary and the other that it was "final as to spousal support". This order has been entered, and the appellant has appealed to this Court pursuant to s. 19(1)(a) of the Courts of Justice Act¸ R.S.O. 1990, c. C. 43 on the basis that it is a final order.

[4] The motions judge had no jurisdiction to make a final order for spousal support on a motion for interim spousal support (see Walsh v. Walsh (2004), 2004 36110 (ON CA), 69 O.R. (3d) 577 (C.A.) at para. 29). Therefore, the order must be set aside.

[5] The appellant argued that this Court should exercise its power under s. 134(1)(c) of the Courts of Justice Act and make an order that is just. She does not take issue with the support ordered up to August 2007, but submits that the motions judge erred in failing to continue the payment of $2,000 a month until trial.

[6] An appellate court should not overturn a support order unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong (Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518 at para. 11).

[7] The motions judge made a finding of fact that it was reasonable to expect the appellant to return to work part-time as of September 2007. There was evidence from the appellant's counsellor, a social worker, respecting the depression and anxiety suffered by the appellant as a result of the ending of the marriage. However, given the lack of medical evidence explaining the extent of her condition, the motions judge could reasonably conclude that the appellant was able to return to work. Indeed, the counsellor's letter states that the appellant intended to resume part-time work in the fall of 2007.

[8] The motions judge ordered that spousal support would cease as of September 2007, when she imputed an annual income of $34,000 to the appellant. However, she did not explain why support should cease, as opposed to being adjusted downwards to take into account the appellant's imputed earnings.

[9] Subsections 15.2(4) and (6) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) set out the factors and objectives to be considered in making an order for spousal support. They include the length of the marriage, the functions performed by each party during the marriage, any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown, and the promotion of economic self-sufficiency.

[10] The parties were married for 20 years at the time of separation. The wife has worked part-time since the birth of the second child with some interruptions because of medical conditions. The two children reside with her 80% of the time. The Spousal Support Advisory Guidelines suggest that an appropriate amount of support, given the duration of the marriage and the respondent's income of $127,000, would range between $1,179 and $1,940 per month, with the mid-point $1,563.

[11] The Court of Appeal in Fisher v. Fisher, 2008 ONCA 11, 2008 CarswellOnt 43 has noted that the Guidelines, when considered in context and applied in their entirety, assist in appellate review (at paras. 102-3). In that case, the Court observed that "the reasonableness of an award produced by the Guidelines must be balanced in light of the circumstances of the individual case, including the particular financial history of the parties during the marriage and their likely future circumstances" (at para. 96).

[12] The motions judge did not discuss the factors or objectives in the Act, nor the Guidelines, which were raised in argument before her.

[13] In our view, the motions judge erred in principle in failing to consider the economic disadvantage to the appellant caused by the termination of the marriage and her ongoing financial need after September 1, 2007 in light of the ability of the respondent to pay. While the appellant is imputed to have $34,000 annual income beginning in September 2007, she would still be in a monthly deficit position. There appears to be no articulated basis for departing from the Spousal Support Guidelines, which would supplement the appellant's income with an amount ranging from $1,179 to $1,940. Therefore, the order terminating spousal support as of September 1, 2007 is set aside.

[14] Given the length of the marriage, the traditional role played by the wife during the marriage, and the relative economic positions of the parties, it is appropriate to order continued interim spousal support, but to reduce it to reflect the appellant's imputed income. The mid-range of the Guidelines is $1,563.00 per month. That is an appropriate amount, given the circumstances of this case.

[15] The appellant submits that the order of interim support should be indefinite. However, the motions judge made a finding that the wife would be able to work full-time by September 1, 2008. That was a reasonable conclusion on the evidence before her, particularly given the lack of persuasive medical evidence respecting the appellant's condition, the ages of the children and the apparent opportunities for work. The order is consistent with the factor of promoting economic self-sufficiency in s. 15.2(6)(d) of the Act. Therefore, we order that interim spousal support shall cease as of September 1, 2008, subject to any further court order, either on motion or at trial.

[16] Therefore, the appeal is allowed. The order below is varied to state that it is temporary with respect to spousal support, that the respondent shall pay interim spousal support from September 1, 2007 to August 1, 2008 in the amount of $1,563 per month and that interim spousal support shall cease September 1, 2008, subject to further order of the Court.

[17] If the parties cannot agree on costs, they make brief written submissions within 30 days.

Molloy J.

Swinton J.

Low J.

Released: April 7, 2008