Court File and Parties

Court File No.: D71531/14 Date: March 18, 2015

Ontario Court of Justice

Re: Aarthikka Dilany Niranchan – Applicant And: Niranchan Nadarajah – Respondent

Before: Justice Roselyn Zisman

Counsel:

• Adela Crossley and Theodra Operea - for the Applicant
• Dilani Gunarajah - for the Respondent

Heard On: March 6, 2015

Reasons for Order

Introduction

[1] This is a temporary motion for spousal support by the Applicant. The Applicant seeks spousal support of $1,200 per month retroactive to the date of separation. This amount is higher than the amount set out in the Spousal Support Advisory Guidelines. She also seeks a lump sum of $5,000 as a contribution by the Respondent to the Applicant's schooling costs. The Applicant is seeking that income be imputed to the Respondent in the amount of $120,000.

[2] The Respondent submitted that income should not be imputed to him but he is prepared to pay spousal support of $750 per month. It is conceded that this amount is higher than the amount set out in the Spousal Support Advisory Guidelines.

[3] Although at times the Respondent conceded that entitlement was not an issue and the only issue was the quantum of support at other times the Respondent raised issues regarding entitlement. As a finding of entitlement is necessary before the quantum of spousal support can be determined and the basis of that entitlement may impact on the quantum of spousal support, I will therefore consider both the Applicant's entitlement to spousal support and if there is a finding of entitlement I will then consider the appropriate quantum.

Background and Relevant Facts

[4] The Applicant is 31 years old and the Respondent is 43 years old. The couple's marriage was arranged by their families in Sri Lanka and they were married in Sri Lanka on December 13, 2009. Shortly after, the Respondent, who is a Canadian citizen, returned to Canada and he began the process of sponsoring the Applicant so she could come to Canada.

[5] The Applicant arrived in Canada in December 2012 and attained her permanent resident status in January 2013. As a condition of the spousal sponsorship, the Respondent executed a legal undertaking to financially support the Applicant for at least 3 years commencing as of December 2012. The sponsorship undertaking also requires the Respondent to provide for the Applicant's basic needs sufficient for her to live in Canada.

[6] The Applicant was also required to sign an undertaking as part of the sponsorship that she would ask her sponsor for help if she had difficulty supporting herself. The spousal sponsorship is not contingent upon the parties continuing to be married.

[7] The Applicant was a teacher in Sri Lanka and planned to attend university to obtain a degree. The Applicant deposed that she was self-sufficient in Sri Lanka and did not follow her plan to attend university as the Respondent advised her that a university degree would not be recognized in Canada and that he would assist her in attending university in Canada.

[8] The Respondent is a real estate agent and told the Applicant he made over $100,000.

[9] When the Applicant arrived in Canada, they resided with the Respondent's mother. The Applicant was unhappy about the living arrangements and how she was treated. The Respondent wanted her to obtain employment at Tim Horton's and was not supportive of her desire to further her education. The Respondent denies that the Applicant was not treated properly by either him or his mother. He deposes that the Applicant totally changed when she came to Canada.

[10] The Applicant inquired about applying for the Ontario Student Assistance Program ("OSAP") but the Respondent would not provide her with his financial information and eventually told her that she would not qualify as he made over $100,000.

[11] The Applicant left the home in April 2013 after an argument with her mother-in-law and stayed with her aunt. She then applied for and obtained OSAP and enrolled at Seneca College.

[12] Shortly after, the parties reconciled and the Applicant moved back. Although each party blames the other for the problems in the marriage, they agree that the relationship continued to be difficult. The Applicant deposes that if she asked the Respondent for money he would tell her to use her OSAP loan. The Respondent deposes that he felt the Applicant just used him to be able to come to Canada. The Respondent deposes that he spent a great deal of money and incurred debts for the marriage and for arranging for the Applicant to come to Canada.

[13] On May 25, 2014, the parties had an argument and the Applicant left the home. Again, despite different versions of the incident and who was to blame, the parties have not reconciled and have lived separate and apart since that date.

[14] The Applicant is currently enrolled in a three year course in advanced accounting and finance at Seneca College. She is expecting to complete the course in April 2017. In August 2014, the Applicant began to work 12 to 15 hours a week at Seneca Student Services for minimum wages. From August 2014 to the end of 2014 she earned $4,697.00.[1]

[15] Since the separation the Applicant has requested support from the Respondent. The Respondent has not provided any support.

[16] The Applicant began this application in August 2014. At the first appearance on October 20, 2014 the Respondent's time to file his responding materials was extended. A case conference was held on January 7, 2015 and both parties entered into a disclosure order and a timetable for a temporary motion for spousal support was set.

[17] The Applicant relies on her Notice of Motion returnable March 6, 2015, her affidavits sworn January 10, February 4 and 19, 2015 and her financial statements sworn August 15, 2014 and February 19, 2015.

[18] The Respondent relies on his affidavits sworn January 10 and March 3, 2015 and his financial statement sworn November 5, 2014.

Applicant's Financial Circumstances

[19] The Applicant's financial statement sworn February 19, 2015 indicates income of $561.00 per month or $6,732 annually. The financial statement sworn August 15, 2014 indicates income of $880.00 per month or $10,560 annually. I do not draw any adverse inference from this difference as the Applicant is simply estimating her income from a part-time job where her hours fluctuate. Her T-4 of 2014 indicates income of $4,697.00 but this was only for about five months. The Applicant's affidavit did not indicate if the Applicant worked all year or only when school was in session nor were further details of her employment requested by the Respondent's counsel in her disclosure request.

[20] At this stage of the proceedings and based on the information provided, attributing $10,560 annually to the Applicant as her income is appropriate based on her 2014 earnings for five months.

[21] The Applicant's expenses are extremely modest and include $637.00 per month allocated to her education costs. The Applicant has less than $1,000.00 in her bank account and debts of about $12,000.00. Based on the Applicant's expenses of $1,970.00 per month or $23,640 annually less her income of $880.00 per month or $10,560 annually she has a shortfall of $1,090.00 per month or $13,080 annually. But her expenses does not include her debt payments that are currently not being paid.

The Respondent's Financial Circumstances

[22] The Respondent is employed as a real estate agent and works on commission. His financial statement sworn November 4, 2014 indicates a gross annual income of $107,157.00 and an annual net income of $64,294.20. Therefore his annual business expenses would be $42,862.80. His financial statement indicates that he has personal expenses $6,336.35 per month or $76,036.20 annually and includes housing and food expenses of $3,000.00 per month and debt payments of $2,940.00 per month. His only significant asset is a car worth $30,000 and he has debts of $76,698.69. These include debts to Revenue Canada, his employer Royal LePage, personal debts and credit card debts. The credit cards are in the joint name of him and his mother and no break-down was provided as to their individual responsibility for these credit card debts.

[23] The Respondent's Notice of Assessment indicate income as follows:

Year	Gross Income	Net Income
2010	$132,674	$79,527
2011	$59,042	$21,897
2012	$112,431	$54,854
2013	$97,899	$59,600

[24] The Applicant submits that the Respondent has not provided all of the disclosure ordered and that the disclosure that has been provided is inconsistent and that there are some major discrepancies between his tax returns, financial statement and bank statements that have been provided. For example, the Respondent's 2013 tax return states that his gross business income is $108,777.50, which would include the applicable taxes, but the deposits in one of his bank accounts for the same year are $164,599.79. Although this discrepancy was pointed out in the Applicant's affidavit, the Respondent, in his responding affidavit, did not explain why his deposits would be greater than his gross business income.

[25] The Respondent's business expenses include advances he received from Royal LePage but if these are simply advances of commission and then deducted from his commission it is not clear why he would include these amounts as expenses. He has also expenses "garnishee liability" from his gross income and explains in his affidavit that this is for debts owing to Canada Revenue Agency. Again, this does not appear to be a proper business expense to reduce his gross income for support purposes.

[26] The Applicant also submits that the Respondent in his responding affidavit did not deny that he told the Applicant he made over $100,000 and his claims that he earns less than $100,000 are not credible.

[27] No information about the Respondent's 2014 income was filed on this motion.

Applicable Statutory and Legal Principles Regarding Spousal Support

[28] Section 30 of the Family Law Act ("FLA") provides that every spouse has an obligation to provide support for the other spouse "in accordance with need, to the extent that he or she is capable of doing so."

[29] In considering if the Applicant is entitled to spousal support, whether on a temporary or final basis, the court is required to consider the objectives of a spousal support order set out in subsection 33(8) of FLA as follows:

(8) An order for the support of a spouse should,

(a) recognize the spouse's contribution to the relationship and the economic consequences of the relationship for the spouse;

(b) share the economic burden of child support equitably;

(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and

(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home). R.S.O. 1990, c. F.3, s. 33 (8); 1999, c. 6, s. 25 (5); 2005, c. 5, s. 27 (9).

[30] In Bracklow v. Bracklow, the Supreme Court of Canada recognized three bases for an award of spousal support:

1. Compensatory based on the economic circumstances of each spouse's role during the marriage;
2. Non-compensatory based on need in circumstances where a spouse cannot become self-sufficient; and
3. Contractual based on an agreement between the parties.

[31] In this case, the Applicant was a teacher in Sri Lanka and financially self-sufficient and had plans to further her education and improve her financial circumstances. She gave up her career and her future opportunities to marry the Respondent and move to Canada. The Respondent submitted that there was no proof that the Applicant was financially self-sufficient or that she gave up her career opportunities in Sri Lanka. However, the Respondent did not dispute the Applicant's statements about her financial circumstances in Sri Lanka in his affidavit so that at this stage of the proceedings, I accept this as an undisputed fact. The Applicant by coming to Canada became totally dependent on the Respondent and as a result of the breakdown of the marriage she suffered an economic disadvantage. Based on these facts and despite the short duration of the marriage, I find that the Applicant is entitled to spousal support on a compensatory basis.

[32] The Applicant clearly has a need for spousal support. She is attempting to become self-sufficient by attending college and has also obtained a part-time job. Although her expenses are modest, she is unable to meet those expenses without the financial assistance of the Respondent who is capable of providing such support. I find that the Applicant is also entitled to spousal support on a non-compensatory basis.

[33] Further, the Applicant is entitled to spousal support on a contractual basis. The Respondent agreed to sponsor the Applicant and to meet her financial needs for three years. The case law is clear that the existence of an immigration sponsorship agreement is a relevant consideration in determining entitlement to spousal support.[3]

[34] Therefore, I find that in this case, the Applicant has demonstrated that she has a strong entitlement to temporary spousal support on all of the three criteria for entitlement.

[35] As the Respondent has raised the issue of the Applicant's conduct and his belief that the Applicant used him to come to Canada and in his words committed "immigration fraud", I wish to briefly deal with this issue. The allegations by the Respondent are pure speculation and not based on any objective facts. The parties' parents arranged this marriage. There is no evidence that the Applicant pursued the Respondent, duped him or misled him in any way.

[36] Section 33 (8) of the FLA requires the court to consider all of the circumstances of the parties and specifies some particular ones to be taken into account. Section 33 (10) of the FLA provides that the obligation to provide support for a spouse exists without regard to conduct of either spouse and it is only when the court determines the amount of support that the court may consider the conduct of either spouse but that conduct must be so unconscionable as to constitute an obvious and gross repudiation of the relationship.

[37] I therefore reject the Respondent's submissions that the Applicant's conduct should be considered in the determination of either her entitlement to spousal support or the amount of spousal support.

Legal Principles Regarding Temporary Spousal Support

[38] As this is a motion for temporary spousal support, the relevant applicable principles to be applied are as follows:[4]

a) Temporary support is to provide income for the dependent spouse from the time the proceedings were instituted until trial. It should only be ordered when a prima facie case for entitlement has been made out.

b) On temporary support motions, needs of the dependent spouse and the ability of the other spouse to pay support take on greater significance than the need to achieve self-sufficiency;

c) The court need not conduct a complete inquiry into all aspects and details to determine what extent either party suffered an economic advantage or disadvantage as a result of the relationship. That is to be left for the trial judge;

d) Temporary support is a holding order to maintain the accustomed lifestyle if possible pending final disposition as long as the claimant is able to present a triable case for economic disadvantage;

e) Temporary support is to be based on the parties' means and needs, assuming that a triable issue exists. The merits of the case in its entirety must wait a final hearing;

f) Temporary support should be ordered within the Spousal Support Advisory Guidelines ("SSAG") range unless exceptional circumstances dictate otherwise.

[39] Applying these principles, I have already outlined the basis for finding that the Applicant has established her entitlement to spousal support and her need. The next step is to determine the Respondent's ability to pay.

What is the Respondent's Income? Should the Court Impute Income to Him?

[40] Income can be imputed to a party for spousal support purposes. In determining the payor's means the court may impute income in appropriate cases, including where the payor spouse is intentionally under-employed. As noted in Rilli v. Rilli, the test in Drygala v. Pauli for imputing income for child support purposes applies equally to claims for spousal support.

[41] "Intentional under-employment" does not require a finding of bad faith or the intention to defeat a support claim. The issue is whether the support payor, through his own conduct, that is, not as a result of circumstances beyond his control, is earning less than he or she is capable of earning.[7]

[42] The Ontario Court of Appeal in Drygala v. Pauli, supra, set out the following three questions which should be answered by a court in considering a request to impute income:

1. Is the party intentionally under-employed or unemployed?
2. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs, the needs of the child of the marriage or reasonable health needs?
3. If not, what income is appropriately imputed?

[43] The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed.[8]

[44] In considering if income should be imputed to a payor, section 19 of the Child Support Guidelines is relevant. That section, in summary provides that income may be imputed when:

(a) the parent is intentionally under employed;

(b) income has been diverted which would affect the level of child support to be determined;

(c) the parent's property is not reasonably utilized to generate income;

(d) the parent has failed to provide income information when under a legal obligation to do so; and,

(e) the parent unreasonably deducts expenses from income, such reasonableness is not solely governed by whether the deduction is permitted for income tax purposes.

[45] In my view, the Applicant has met the onus on her to prove that income should be imputed to the Respondent.

[46] I find that is an appropriate case where the court should draw an adverse inference against the Respondent for his failure to fully comply with his disclosure obligations.[9]

[47] Further, the onus rests upon the parent seeking to deduct expenses from income to provide meaningful supporting documentation in respect to those deductions, failing which an adverse inference may be drawn.[10]

[48] It may be that at trial or upon the Respondent explaining the discrepancies in his financial disclosure and providing proof that the deductions from his gross income are reasonable that a different income may be attributed to him. However, on this temporary motion, I find that imputing the Respondent's gross 2013 income of $97,899.00 is fair and reasonable subject to further adjustment as may be necessary.

Should the Amount of Spousal Support Be Higher Than the Spousal Support Advisory Guidelines?

[49] The Court of Appeal in Fisher v. Fisher stated that the SSAG, while only advisory, are a useful starting point to assess the quantum of spousal support, once entitlement is established. However, as was pointed out in that case, in some atypical cases it is not fair to base spousal support on the SSAG and the reasonableness of the award produced by the SSAG must always be balanced with the circumstances of the individual case, including the particular financial history of the parties during the marriage and their likely future circumstances.

[50] Based on the Applicant's income of $10,560 and the Respondent's income of $97,988, the SSAG provides that spousal support would only be in the range of $491 to $655 per month. Even at the high range, this amount would leave the Respondent with 78.9% of the parties' collective Net Disposable Income and would leave the Applicant with only 21.1%.

[51] Respondent's counsel submitted that the Applicant should receive $750 per month. She based this amount on the amount the applicant would be entitled to if she was eligible to receive social assistance as this represented an amount sufficient to cover her basic needs. Respondent's counsel calculations were based on the Applicant's income of $10,560 and the Respondent's income of $59,600, the SSAG provides that spousal support would only be in the range of $245 to $327 per month. Even at the high range and based on the respondent's lower income, this amount would leave the Respondent with 74.6% of the parties' collective Net Disposable Income and would leave the Applicant with only 25.4%.

[52] The SSAG formula is intended to apply to the vast majority of cases but that there will be unusual or atypical cases where the formula generates results that are inconsistent with the support factors and objectives found in the legislation and an appropriate result can only be achieved by departing from the formula. Several exceptions are outlined in the explanatory notes to the SSAG. The exceptions that apply in this case are the exception for compelling financial circumstances in the interim period and the compensatory exception for short marriages without children.[12]

[53] In this case, the applicant has very limited income and is unable to earn any further income as she is in school attempting to become self-sufficient. She cannot meet her very basic expenses without the financial assistance of the respondent and the formula amount would not even meet those basic needs.

[54] The SSAG recognized that the formula may create specific problems for short marriages without children where the recipient has little or no income as some short marriages can involve a large compensatory claim disproportionate to the length of marriage. One of the examples provided is, "one spouse moves across the country to marry, giving up his or her job or business to do so."[13]

[55] Based on the facts of this case, the spousal support amounts provided in the SSAG would not result in a fair amount to the Applicant. The Applicant is in immediate need of financial support. The Applicant has a strong claim for compensatory support despite the short length of this marriage as she gave up the security of her job and the support of her extended family in Sri Lanka and gave up her plans to further her education in Sri Lanka. The Applicant is also bound by his immigration undertaking to support her.

[56] Based on the Respondent's imputed income of $97,899 and the applicant's income of $10,560, an order of spousal support for $1,200 per month would provide the Applicant with a total net income of $1,846 per month or $22,152 annually which is still slightly less than her expenses.[14] This would result in the Respondent having 73.4% of the parties' collective Net Disposable Income and would leave the Applicant only 26.6%. As an aside even if I had based the Respondent's income on his stated income of $59,600 an order of spousal support of $1,200 per month this would have still resulted in the Respondent having 61.3% of the total Net Disposable Income of the parties.

[57] I am not prepared to order a further lump sum of $5,000 as requested by Applicant's counsel as the expenses for college tuition and other related school expenses are already included in the in the Applicant's expenses as outlined in her financial statement.

[58] The applicant has also requested an order that spousal support be retroactive to the date of separation as the respondent paid no support despite requests that he do so. Although generally a retroactive order is not made on a temporary motion for spousal support, I find that it is appropriate to make the order in this case as the Respondent was under a legal obligation to support the Applicant in accordance with his immigration undertaking and the Applicant was required to obtain a OSAP loan to pay for her expenses and school fees that she will need to repay. The temporary order would in any event have been made as of the date of the Application which was commenced a few months after the separation. I do not find that it would be fair or reasonable to deprive the Applicant of support for those months, even at this stage of the proceedings, as a result of attempting to negotiate spousal support before she was required to initiate these proceedings.

[59] As counsel did not make submissions on a re-payment schedule for any retroactive support award I will order an amount I find to be fair in the circumstances but if counsel can agree on any other schedule of re-payment that can be submitted to the court by counsel.

Temporary Order

[60] Temporary Order as follows:

1. The Respondent shall pay spousal support of $1,200 per month to the Applicant as of April 1, 2015.

2. Spousal support arrears from June 1, 2014 to March 1, 2015 are fixed at $12,000 payable at a rate of no less than $50.00 per month as of April 1, 2015 unless counsel agree on a different re-payment schedule that can be submitted to the court by means of a Form 14B.

3. Support Deduction Order to issue.

[61] If counsel cannot agree on costs, the Applicant shall serve and file her cost submissions not to exceed 3 pages with a Bill of Costs and any Offer to Settle attached, within 14 days. The respondent shall serve and file his response not to exceed 3 pages with a Bill of Costs and any Offer to Settle attached, within 14 days thereafter.

Justice Roselyn Zisman

Date: March 18, 2015

Footnotes

[1] Exhibit 1 on motion. T-4 only became available after motion materials were filed and on consent it was filed on the motion.

[2] [1991] 1 S.C.R. 420

[3] See Pourian v. Zaghian 23594 (Ont. S.C.); Nathoo v. Nathoo [2005] A.J. No. 255 (Q.B.); Ferron v. Ferron, [1997] O.J. No. 3706 (CJ); Johnson v. Johnson 2005 ONCJ 325

[4] Kowalski v. Grant 2007 MBQB 235; Robles v. Kuhn 2009 BCSC 1163; Decker v. Fedorsen 2010 ONCJ 618, [2010] O.J. No. 5661 (OCJ)

[5] [2006] O.J. No. 2142

[6] (2002), , 61 O.R. (3d) 711 (C.A.)

[7] See also Perino v. Perino [2012] O.J. No. 6061 (C.A.)

[8] See Homsi v. Zaya 2009 ONCA 322, [2009] O.J. No. 1552 (C.A.)

[9] Smith v. Pellegrini, [2008] O.J. No. 3616 (Ont. S.C.); Mainone v. Maimone, [2009] O.J. No. 2140 (Ont. S.C.)

[10] Orser v. Grant [2000] O.J. No. 1429 (Ont. S.C.); Motyka v. Motyka 2001 BCCA 18

[11] 2008 ONCA 11

[12] Spousal Support Advisory Guidelines, 2008, sections 7.4.2, 12, and 12.1

[13] Supra, 12.5

[14] Calculations attached as Schedule A.