Court File and Parties

Court File No.: DR-62315-13 Date: 2014-09-02

Ontario Court of Justice

Between:

Marguerite MacDonald The applicant, only participating in writing.

Applicant

- and -

John Langley

Respondent Acting in Person

Heard: August 29, 2014

Justice: S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] This case is about spousal support.

[2] The applicant is 54 years old. The respondent is 55 years old. They began living together in April of 1978 and were married on July 14, 1979. They had two children together who are now 32 and 36 years old.

[3] The applicant lives alone in Nova Scotia in a home jointly owned by the parties. She works full-time as a cook and earns about $19,000 per annum. She has had this job for 10 years.

[4] The respondent has lived in Ontario for the past ten years. Prior to then, he resided in Nova Scotia. The respondent is employed as a sanitation worker for the City of Toronto. He earned $56,468 in 2013.

[5] The parties are still married.

[6] The applicant issued this application on June 27, 2013, pursuant to the Interjurisdictional Support Orders Act (ISOA). This application was served on the respondent on April 30, 2014. In her application, the applicant sought indefinite ongoing spousal support, together with support retroactive to February 1, 2013, in the sum of $1,500 per month.

[7] The respondent submitted that the applicant was not entitled to spousal support.

[8] ISOA applications are usually decided on written material. However, the court may order an oral hearing at the request of the respondent. In this case, the respondent was given the opportunity to supplement his written material with oral evidence.

Part Two – The Date of Separation

[9] The parties provided conflicting evidence about their date of separation. In her affidavit sworn on June 18, 2013, the applicant says that the respondent separated from her in September of 2003, to live with another woman and moved with this woman to Toronto in 2004.

[10] The respondent did not dispute the applicant's evidence in his written material, but in oral evidence he expressed surprise that the applicant had claimed spousal support from him. He testified that until he received the application he thought that he and the applicant were still together. He testified that he talked almost daily with the applicant, would regularly send her money, paid for her to come to Toronto to see her children and grandchildren and that until about a year and a half ago they were still regularly having sexual relations when he went to Nova Scotia. The respondent said that he would return to Nova Scotia every few months and stay in the home he owns with the applicant.

[11] The court finds the applicant's evidence about the date of their legal separation more compelling. The respondent did not deny that he left the respondent in 2003 to live with another woman and moved with the other woman to Toronto in 2004. He has chosen to earn his living in Toronto and rents an apartment here. The applicant has chosen to live in Nova Scotia. There will be a finding that the parties separated in September of 2003. This means that the length of the relationship was just over 25 years as the parties started living together in April of 1978.

Part Three – Statutory Framework

[12] Paragraphs 2 and 3 of section 13 of the ISOA set out that, in a spousal support claim made by a claimant residing outside of Ontario, the issues of entitlement and amount of support are to be determined according to the law of Ontario. Section 14 of the ISOA permits the court to make or refuse to make a support order, make a periodic or lump sum order, or both, and to make a retroactive support order. In determining entitlement and the amount of support, this court is governed by the Family Law Act. Section 30 of the Act sets out that every spouse has an obligation to provide support for their spouse in accordance with need, to the extent that he or she is capable of so doing. I have considered the purposes of an order for spousal support that are set out in subsection 33(8) of the Act and the factors in determining the award set out in subsection 33(9) of the Act in making this decision.

Part Four – Entitlement to Spousal Support

[13] Spousal support is not merely a consideration of needs and means. In determining the appropriate amount of spousal support, compensatory and non-compensatory considerations should be taken into account in an effort to equitably alleviate the economic consequences of the breakdown of the relationship. See: Rioux v. Rioux, 2009 ONCA 569, [2009] 97 O.R. (3d) 102 (OCA). Entitlement can be based on compensatory, non-compensatory or contractual grounds. See: Bracklow v. Bracklow.

[14] The applicant established entitlement to support on both a compensatory and non-compensatory basis.

[15] The evidence indicated that the applicant was the primary caregiver for the parties' children and managed the household while the family lived together. When the children were very young, she stayed out of the workforce, at times, to raise them. Further, there were several years where she solely supported the family to permit the respondent to take courses to improve his earning potential. She did this when the respondent took courses to obtain his degree in engineering and to become a correctional officer. Between raising the children, managing the household and working to support the respondent through his education, the applicant had little opportunity to upgrade her own education or work skills. Her income-earning potential was compromised due to these roles. She has suffered an economic disadvantage as a result.

[16] The respondent did not challenge the applicant's evidence about her ability to earn income. He did complain that she spent huge amounts of money on bingo. He also pointed out that she lives almost expense-free in their jointly owned home, while he has to pay $900 per month for rent. This evidence will be considered when determining the amount of support, but is insufficient to disentitle the applicant to support. This is a long-term marriage and there is a significant disparity in the parties' incomes. The applicant has the need for spousal support and the respondent has the ability to pay it. The applicant has been financially disadvantaged by the breakdown of the marriage.

[17] The court also considered whether the applicant's delay in bringing her application disentitled her to support. The court finds that it does not. Such a finding would create a financial windfall for the respondent that is unwarranted. He has been advantaged by paying far less support to the applicant than would have been ordered if she had promptly pursued a support claim. While delay is a factor to be considered, it is not fatal to a claim for spousal support. See: Hillhouse v. Hillhouse (1992), 43 R.F.L. (3d) 266 (BCCA); Walker v. Greer, [2003] O.J. No. 3396 (SCJ); van Rythoven v. van Rythoven, [2009] O.J. No. 3648 (SCJ).

Part Five – Retroactive Support and the Start Date for Support

[18] The applicant is seeking an order that the respondent's support obligation be retroactive to February 1, 2013.

[19] The leading case on retroactive child support is D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37. At paragraph 133 of D.B.S., the Supreme Court of Canada held that, in determining whether to make a retroactive award, a court will need to look at all of the relevant circumstances in front of it. The payor's interest in certainty must be balanced with the need for fairness and flexibility. The court listed the following factors for consideration and provided that there is no priority among them; none are decisive and all should be considered:

1. Has the applicant provided a reasonable excuse for delay in applying to court?

2. Conduct of the payor

3. Circumstances of the child

4. Hardship for the payor

[20] The Supreme Court in Canada in Kerr v. Baranow, 2011 SCC 10 decided that D.B.S. factors apply, as modified, for spousal support (circumstances of spouse are relevant as opposed to circumstances of the child). The court found that there is no presumptive entitlement to spousal support and, unlike child support, the spouse is, in general, not under any legal obligation to look out for the separated spouse's legal interests. Thus, concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support. The court found that D.B.S. emphasized the need for flexibility and a holistic view of each matter on its own merits and that the same flexibility is appropriate when dealing with retroactive spousal support.

[21] While the applicant's request for a retroactive start date is relatively modest, she has not established that such an order should be made. She did not provide a satisfactory explanation as to why she waited so long to claim support. The conduct of the respondent is not blameworthy. He thought that the applicant was content with their informal support arrangements and structured his budget accordingly. He said that he sent the applicant money whenever she asked for it and that he supported her in their jointly owned home. There is no evidence from the applicant that she expressed dissatisfaction to the respondent about the support arrangements. Lastly, the respondent has no savings and a retroactive award would create hardship for him.

[22] There will be no order for retroactive support. This leads to the issue of when support should start.

[23] Any support claimed after an application is issued is prospective support, not retroactive support. Ordinarily, once entitlement to support has been established, an applicant who has provided notice of a support claim, and who then proceeds reasonably to a disposition of the claim, is presumptively entitled to prospective support from the date of notice that a support claim is being pursued. To do otherwise would only provide parties with an incentive to delay the final hearing. See: Mackinnon v. Mackinnon, 2005 13 R.F.L. (6th) 221 (Ont. C.A.).

[24] This is usually a sound principle in cases where the respondent party is served with the application in a timely manner. However, it is an unfortunate reality in ISOA cases that there is often a long delay between the application being prepared in the reciprocating jurisdiction and being served on the respondent in Ontario. Here, ten months elapsed between these dates. The delay is unfair to both the applicant who seeks and needs support and the respondent who receives notice of the claim much later and is potentially exposed to a large back-dated order that hasn't been budgeted for.

[25] The facts of this case are similar to those in another case this court heard, Murrell v. Wingfield, 2012 ONCJ 475. In both cases, there was a long delay between the issuance and service of the application; the court believed that the respondents had no prior notice of the claim; the respondents did not attempt to avoid service and were shocked by the receipt of the claim. In Murrell, I found that if I had believed that the subject of support had been broached in the period between issuance and service of the application, I would have likely used the date that the subject was broached as the start date, as any delay in service would have been beyond the control of the applicant.

[26] The court accepts the respondent's evidence that the support issue was not broached until he was served with this application on April 30, 2014. The applicant, in her detailed affidavit, does not mention telling the respondent that she intended to make a claim, or indicating to him that she was dissatisfied with their monetary arrangements. In fact, she deposes that she tried not to ask the respondent for money because she felt that he would insult and harass her and it was not worth it. It is likely that she avoided this uncomfortable topic with the respondent even after she issued her application. Spousal support will begin as of May 1, 2014.

Part Six – The Amount and Duration of Spousal Support

[27] The Court of Appeal in Fisher v. Fisher, 2008 ONCA 11, stated that the Spousal Support Advisory Guidelines, (Ottawa: Minister of Justice and Attorney General of Canada, 2008), by Carol J. Rogerson, and D.A. Rollie Thompson (SSAG) while only advisory, are a useful starting point to assess the quantum and duration of spousal support, once entitlement is established.

[28] The authors of the SSAG write in Section 6.7 that the SSAG start from the practical position that the relevant time for determining the incomes of the spouses is the date of the hearing or the date of the agreement, at both interim and initial stages, but that adjustments might be necessary where there has been delay between the time of separation and the hearing. They write:

The without child support formula gives theoretical emphasis to the marital standard of living, as measured by the spouses' incomes at or near the date of separation. The marital standard of living during cohabitation ought not be affected by a substantial post-separation increase in the payor's income.

[29] The impact of a post-separation increase in income is case-specific. Here, the court finds that it is appropriate to use the respondent's present income to determine the SSAG amounts for the following reasons:

a) The respondent provided no evidence of any significant post-separation increase in income. The income tax statements that he provided showed a consistent level of income since 2011.

b) The respondent has remained at the same job since the separation. Even if there was some increase in the respondent's post-separation income, it does not warrant any adjustment as the applicant has a significant compensatory claim for spousal support. See: Thompson v. Thompson, 2013 ONSC 5500, 2013 CarswellOnt 12392 (SCJ).

c) The respondent has had the benefit of paying far less monies to the applicant since the separation than he would have paid if she had made her spousal support claim in a timely manner.

[30] Based on the respondent's income of $56,468 per annum, the SSAG formula sets out figures of support at $1,172 per month at the low end of the range, $1,366 per month in the middle of the range and $1,456 per month at the high end of the range, with the duration of the order to be indefinite, subject to review and variation.[1]

[31] The court will order spousal support of $1,200 per month starting on May 1, 2014. This is towards the lower end of the range because the respondent's housing expenses are higher than the applicant's. The applicant has the benefit of living in the parties' jointly owned property. This property is mortgage-free and the applicant's housing needs are modest compared to the respondent's. If this situation changes in the future (for example, the respondent requires the property to be sold and the applicant's housing costs change) this will likely constitute a material change in circumstances that would justify a variation to the award.

[32] The SSAG analysis shows that a support payment of $1,200 per month will leave the applicant with about 55.7% and the respondent with about 44.3% of their total net disposable income. This is an appropriate distribution given the factors set out above.

[33] The spousal support order shall be indefinite subject to any future variation.

Part Seven – Credits to the Respondent and Repayment of Arrears

[34] The court accepts the respondent's evidence that he has paid the applicant approximately $300 per month since he received the application. He will receive credit for this.

[35] This order will create immediate arrears as follows:

a) Support arrears – 5 months (May – September) @ $1,200 per month = $6,000

b) Less credits: 4 months @ $300 per month (the assumption being that no monies have yet been paid for September) = ($1,200)

Balance owing: $4,800

[36] The applicant may repay the arrears at the rate of $200 per month, starting on October 1, 2014.

Part Eight – Conclusion

[37] A final order shall go on the following terms:

a) The respondent shall pay the applicant spousal support in the amount of $1,200 per month on the first day of each and every month, starting on May 1, 2014.

b) The spousal support is indefinite, subject to any future variation.

c) The respondent is to be credited for support payments of $1,200, leaving a balance of support arrears owing of $4,800 as of today. This takes into account the respondent's support obligations until the end of September of 2014. His next ongoing support payment will be due on October 1, 2014.

d) The respondent may repay the arrears at the rate of $200 per month, starting on October 1, 2014.

e) A support deduction order shall issue.

[38] It is important for the respondent to be aware that his spousal support payments are tax-deductible. At his income level, this will result in a significant tax reduction. He should seek advice on how to have less income tax deducted at source from his employer instead of waiting until the end of the year for a tax refund. Doing this will assist him with his cash flow.

Justice S.B. Sherr

Released: September 2, 2014

[1] It is important for the respondent to know that the SSAG amount would not have changed if the court had used the date he was served with the application as the date of separation. The parties' relationship was over 25 years, and already defined as long-term in the SSAG.