Court File and Parties

Court File No.: D81346/15 Date: March 20, 2017

Ontario Court of Justice

Re: Hajar (Marie) Elhoujjaji – Applicant And: Gimmi (Jim) Campigoto – Respondent

Before: Justice Roselyn Zisman

Counsel:

• Karen Hindle, for the Applicant
• Michael Bury, for the Respondent

Heard On: December 19, 20, 23, 2016 and March 14, 2017

Reasons for Decision

1. Nature of the Case

[1] The applicant ("Marie" or "the mother") commenced this application on July 31, 2016 seeking spousal support and child support for her daughter, Yazmyn Holness ("Yazmyn") born August 23, 2001. Yazmyn is the mother's child from a prior relationship. Marie also sought that any order be made retroactive to the date of the separation and that the Respondent ("Jim") be required to continue to provide extended medical and dental coverage for her and her daughter.

[2] The respondent ("Jim") seeks that the Application be dismissed.

[3] The trial dealt with two main issues:

1. Is Marie entitled to child support on the basis that Jim demonstrated a settled intention to treat Yazmyn, who is not his biological daughter, as a child of his family? If so, in what amount?

2. Is Marie entitled to spousal support? If so, in what amount and when should support commence?

2. Background

[4] Marie is 40 years old. She is the mother of the child Yazmyn whose biological father is Wayne Holness.

[5] Mr. Holness obtained custody of Yazmyn on an uncontested basis on April 7, 2005. Marie began court proceedings to set aside that order shortly thereafter. But for a variety of reasons she was unable to pursue her claim. She began proceedings again in 2007. After several court attendances, the parties agreed that Marie's access would be increased if she moved closer to the child's residence. The final order of February 25, 2009 provided final custody to Mr. Holness and access to the mother for the first 3 week-ends of the month from Thursdays to Sundays and on the other week on Tuesdays and alternating weeks in the summer.

[6] Both the mother and Mr. Holness agree that they never followed the final custody order and that Yazmyn spent increasing amounts of time at the mother's home. The mother testified that she was living full time with her by 2009 whereas Mr. Holness testified that she was living there almost fulltime by 2011 or 2012.

[7] In 2012, Mr. Holness wrote to Canada Revenue Agency to transfer the child tax benefit to the mother and she began to receive those funds as of January 1, 2013. Currently, Yazmyn does not spend any significant amount of time with Mr. Holness and he testified that he only sees her when she needs money.

[8] Jim is 55 years old. He has two daughters from his prior marriage, Angelina who is now 22 years old and Vanessa who is now 20 years old. After his separation, Angelina and Vanessa lived with their mother and would spend time with their father on alternate week-ends from Saturday at noon to Sunday evenings. They also spent every Christmas with their father. As of about 2011, neither child spent week-ends with their father or saw him much due to their part-time employment and school commitments.

[9] The parties agree that they had a relationship from about 2004 to 2014. The circumstances of how they met were a matter of considerable dispute. Jim alleges that he met Marie when she was working as an escort and that she just ended up moving in with him. Whereas, Marie alleges that they met when she was working in a restaurant where Jim was a regular customer.

[10] The parties separated after an altercation on June 29, 2014. Jim was charged with assault and was required to leave their apartment. The criminal charges against him were subsequently withdrawn.

[11] Jim alleges that Marie was and continues to be self-supporting as an adult escort worker. Marie alleges that she gave up her career in the restaurant and hospitality industry to assume the role of homemaker and their relationship resembled a traditional marriage. Further, she suffered from severe depression throughout the relationship that became worse after her mother died and she is incapable of working.

[12] Marie characterizes the relationship as a long term common law relationship whereas Jim deposes that it was an on and off again relationship. He states that the relationship lasted 3-4 months, followed by a lengthy break-up, then followed by a girlfriend/boyfriend relationship or sometimes they simply lived together as roommates.

[13] The parties relied on their affidavits and were subject to cross-examination. The mother's brother filed an affidavit and was subject to cross-examination. The respondent's two daughters both filed affidavits and were also subject to cross-examination. Mr. Holness, Yazmyn's biological father, testified pursuant to a summons issued on behalf of the mother for him to attend court.

3. Did the Respondent Demonstrate a Settled Intention to Treat the Child as a Child of His Family?

3.1 Evidence

[14] There was a great deal of disparity in the evidence with respect to the nature of the relationship between the parties and Jim's relationship with Yazmyn. Although generally the evidence on behalf of the mother was more internally consistent and more consistent with the documentary evidence than the evidence of Jim and his daughters nevertheless there were instances where I found Marie's evidence to be exaggerated.

[15] Where there is a disparity in the evidence I have therefore relied on the documentary and corroborating evidence in determining which version of events is more credible.

[16] The mother relied on the following facts to support her position that Jim formed a settled intention to treat Yazmyn as a child of the relationship:

1. In December 2007, Jim agreed to move to a larger apartment closer to Mr. Holness' residence so that the mother could have more access to Yazmyn as the court order of September 17, 2007 stated that expanded access would occur if the mother lived closer;

2. When Yazmyn lived with her father, Jim would pick her up and return her from her access visits with Marie;

3. Jim added the mother and Yazmyn as family members to his extended medical and dental benefit plan through his employment as of 2008;

4. Jim would pick Yazmyn up from school and drive her to her activities;

5. Jim would pay for Yazmyn's lunches at school;

6. Yazmyn called Jim, "Papa Jim" or "Dad";

7. Jim introduced her to his friends and colleagues as his daughter;

8. They would enjoy activities together as a family such as going swimming, to the park and to the mall;

9. When Yazmyn broke her arm Jim drove her to the hospital; and

10. When Jim had a heart attack, Yazmyn visited him at the hospital.

[17] In support of Jim's position that he did not form a settled intention to treat Yazmyn as his child he relies on the following evidence:

1. Although he agrees that as of 2009, Yazmyn was spending a great deal of time in their apartment, it was not until 2011 or 2012 that she was living there full-time;

2. He would pick up Yazmyn at school as he finished work early and he did so only as a favour to the mother;

3. He only went to one of her soccer games and they only rarely went on outings together;

4. He did not pay for Yazmyn's expenses;

5. He only added Yazmyn and Marie to his extended benefit plan through his employment as a favour;

6. He never introduced Yazmyn as his daughter to anyone; and

7. Yazmyn called him "Jim".

3.2 Law with Respect to Settled Intention

[18] Subsection 1(1) of the Family Law Act defines a parent as follows:

"parent" includes a person who has demonstrated a settled intention to treat a child as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody

[19] If Jim meets the definition of a parent of Marie's daughter, he would be responsible for her support pursuant to s. 31 of the Family Law Act:

31(1) - Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.

[20] In the Supreme Court of Canada's decision in Chartier v. Chartier, Justice Bastarache stated the relevant factors a court should consider in determining whether a person stands in the place of a parent are:

"The court must determine the nature of the relationship by looking at a number of factors, among which is intention. Intention will not only be expressed formally. The court must also infer intention from actions, and take into consideration that even expressed intentions may sometimes change. The actual fact of forming a new family is a key factor in drawing an inference that the step-parent treats the child as a member of his or her family, i.e., a child of the marriage. The relevant factors in defining the parental relationship include, but are not limited to, whether the child participates in the extended family in the same way as would a biological child; whether the person provides financially for the child (depending on ability to pay); whether the person disciplines the child as a parent; whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child; the nature or existence of the child's relationship with the absent biological parent.

[21] Justice Spence in the case of Watts v. Watts cited with approval the case of Widdis v. Widdis and excerpts contained therein from a paper by Professor Carol Rogerson. At paragraphs 34 and 35 of his decision, Justice Spence states:

[34] I agree with the court in Widdis v. Widdis, supra, and the paper by Professor Rogerson, that "the threshold for a parental status finding must be pegged at a sufficiently high point that it avoids the imposition of obligations and the acquisition of access and custody rights except where the step-parent can be clearly shown to have assumed the role of the natural parent and in substantial substitution for the natural parent's role"

[35] The consequence of not having a sufficiently high threshold is that stepparents may be held to long-term financial obligations for simply being a "nice person", a friend to their new spouse's child.

[22] Justice Spence at paragraph 22 of his decision also sets out further factors Professor Rogerson states courts have considered in her review of the case law as follows:

1. Poor relationship between the step-parent and the child prior to the separation

2. An older child

3. An involved biological parent

4. Short length of relationship

[23] I have considered the factors set out in these cases and the cases relied upon by both counsel.

3.3 Analysis and Findings of Fact

[24] The onus is on Marie to establish that Jim has "demonstrated a settled intention" to treat Yazmyn as "a child of his family". It is necessary for Marie to show that Jim's relationship with Yazmyn was more than a mere display of common courtesy or hospitality.

[25] In this case, I find that on a balance of probabilities that Marie has not met the onus on her to prove that Jim demonstrated a settled intention to treat Yazmyn as a member of his family.

[26] I find that except for the fact that Jim included Yazmyn on his extended benefits, there is no objective evidence that he was anything more than being supportive of the mother's attempts early in the relationship to obtain more access to Yazmyn. Thereafter, he showed kindness and a willingness to assist the mother with respect to her daughter.

[27] Although I find that there was a lengthy relationship that is, from 2009 to 2011 when Yazmyn spent a considerable amount of time with her mother and Jim and thereafter when she lived with them full-time, there is no evidence that Jim was closely involved with Yazmyn.

[28] There was no evidence that Yazmyn spent time with Jim and his children over Christmas and other family holidays when they visited his parents each year in Elliott Bay.

[29] Marie did not provide any evidence that Jim was involved in Yazmyn's school such as attending parent-child interviews, that he was listed as an emergency contact or that he ever gave Yazmyn's gifts or that she ever gave him cards or gifts such as at Father's Day.

[30] Marie did not provide any evidence that Jim was involved in any decisions regarding Yazmyn such as, which school she should attend or what activities she should participate in. Although I accept the mother's evidence that Yazmyn is a good child and there has not been a need for Jim to ever discipline her, there are always decisions that need to be made for a child, and there is no evidence that Jim was ever involved.

[31] Although I also accept the evidence of the mother and her brother that she called him "Dad" or "Papa Jim" this is to be expected when a child lives with another male figure. This is a positive factor I have considered, but it is from the child's perspective and there is simply insufficient evidence to indicate that Jim ever considered or treated Yazmyn as his daughter.

[32] No photos were provided that showed them enjoying family time together. I do not accept the mother's evidence that Jim removed all of the photos. After he was charged criminally, he was only allowed to return to the apartment on one occasion to remove his personal things and I accept his evidence that he had a very limited amount of time to do this and that he did not remove the photos.

[33] When Jim met Yazmyn she had a strong relationship with her father who had legal custody of her and over the years she has continued to have a relationship with him. As with Jim's own daughters, as Yazmyn has become older, she sees her biological father less. But he is the parent that signed her school registration forms and I accept his evidence that he buys her clothing each season and she sees him whenever she needs money. Although I found that his evidence with respect to the extent to his financial contributions to be self-serving and exaggerated, nevertheless he does contribute to his daughter's support and the mother has not pursued him for child support which she would be entitled to do.

[34] I find that the court must consider the reality of blended families and that when one party brings their child from a previous relationship into the new family unit, that there is not simply an assumption that the step-parent will now be financially responsible for that child.

[35] I agree with the observations of Professor Rogerson, as cited in the Widdis v. Widdis case, that unless there is a high threshold in finding parental status, "a court must take care not to punish a step-parent for behaving kindly or offering emotional, physical and financial assistance to the natural parent who would otherwise be raising the children alone or with some assistance from the non-custodial natural parent."

[36] In summary, I find that despite the length of time that Yazmyn has lived with Jim and her mother that he has never assumed responsibility for her or shown a clear commitment to treat her as a member of his family.

4. Is the Applicant a Spouse Within the Definition of the Family Law Act?

4.1 Statutory Test

[37] A "spouse" for support purposes is defined in subsection 29 of the Family Law Act to include either of two person who are not married to each other and have cohabited continuously for a period of not less than 3 years.

4.2 Evidence with Respect to Cohabitation and Nature of the Relationship

[38] In support of the mother's position that the parties were in a long term continuous common law relationship, she relies on the following facts:

1. The mother moved into Jim's 2 bedroom apartment in 2004 and they shared one bedroom and his daughters, when they visited slept in the other bedroom as did Yazmyn when she stayed over;

2. In December 2007, they moved into a 3 bedroom apartment where they shared one bedroom. Marie's name was on the offer to lease and she was listed as an occupant. Marie's mother moved in with them for a short time and then returned in 2008 and lived there in the master bedroom until she passed away in May 2014. Yazmyn lived in the third bedroom as did Jim's daughters when they visited;

3. Although she sometimes fell asleep on the couch, which occurred more when she was depressed, they shared a bedroom together and slept together. She denied that the father slept on his own or had a lock on his bedroom door;

4. Brad Elabdi, the mother's brother testified that he visited the parties at least 50 times between 2004 and 2014. He stayed with them for several months before he moved to Calgary in 2012, briefly in 2013 and also when he returned to Toronto in 2014. He confirmed that his mother lived with the parties and also that there was a spouse like relationship between Jim and his sister;

5. Jim bought her a used car;

6. Since 2008, Jim included herself and Yazmyn on his extended medical and dental plan and paid the difference in the coverage;

7. Jim stated that they were in a common law relationship on his income tax returns from 2005 to 2008 to his financial benefit. Marie provided copies of Jim's income tax returns for 2006 and 2007 and testified she did not have copies of other years. In subsequent years, he did not state they were in a common law relationship as the mother testified that she was in receipt of ODSP;

8. Jim was the sole financial provider. He paid for the rent, her cell phone bill and other expenses and gave her money to buy groceries;

9. Marie cooked and cleaned and entertained Jim's friends who came over on at least one occasion;

10. Jim listed the Marie as a beneficiary on his RRSP and she produced several 2014 statements as proof;

11. Jim prepaid $400 so that she could obtain a credit card with a maximum of $500 in her own name;

12. When the mother was hospitalized for depression in 2005 and again in 2006 she advised the staff that Jim was her common law partner. Jim was interviewed and confirmed the relationship and advised the hospital staff that he was worried about her binge drinking. The mother provided a copy of the hospital records as proof;

13. When Jim suffered a heart attack in 2011, she and Yazmyn attended at the hospital. Marie is listed as an emergency contact and her cell number is on the hospital records. She assisted with all his post-surgery care and drove him to his various appointments;

14. The hospital records produced by Marie with respect to Jim's heart attack all refer to Marie as his common law spouse. In several of the reports, it is clear that the discussion is directly with Jim who refers to Marie as his partner and that they are living in a common law relationship;

15. She attended with Jim to family events and to his father's funeral in Elliott Lake and later went with him to get the home ready for sale. She produced email exchanges between the pastor and herself and between herself and members of Jim's family and a family photograph from the funeral that included her. The emails and photograph suggest that she was considered to be Jim's partner; and

16. In 2014, Jim bought her an engagement ring to replace the one she lost.

[39] Jim in disputing the mother's claim that they were in a continuous common law relationship for more than 3 years explained some of the mother's evidence by relying on the following facts:

1. After he met Marie she began "hanging around" and eventually moved into his apartment and then moved with him to the second bigger apartment. He had his own bedroom in both apartments that he kept locked. At times he alleged that they had an on and off relationship and separated for long periods of times but he admitted Marie lived with him full-time since 2004 and they had occasional sex. However, he maintained that they were not in a relationship;

2. He accused Marie of adding her name to the Offer to Lease for the apartment;

3. He had his own bank accounts and Marie paid for her own and Yazmyn's expenses;

4. Marie convinced him to say they were living common law on his 2005 and 2006 tax returns as she told him there was a financial advantage to him. Thereafter, he filed returns as divorced or single;

5. He explained that he only included Marie and Yazmyn on his extended medical and dental insurance as a favour and that any expenses not covered were a loan that Marie was to reimburse him for;

6. He also explained that he listed Marie as a beneficiary on his RRSP for only a short time and because she convinced him to do so;

7. He denied that he bought her an engagement ring and that it was only a Valentine's gift;

8. He denied that she cooked, cleaned or helped him care of his daughters when they visited. He also denied that she entertained when he had friends over. He could only recall one occasion when he has some friends over and Marie prepared some food for them;

9. He denied that if ever referred to Marie as his common law spouse to her doctors or to his doctors. He admitted that he may have referred to her as his girlfriend. He also denied that she helped him recover from his heart attack; and

10. He relies on the evidence of his daughters who testified that Marie usually slept on the couch when they were there and they confirmed his evidence that he had his own bedroom.

4.3 Analysis and Findings of Fact with Respect to Relationship Between the Parties

[40] The determination of whether or not the parties cohabited in a continuous relationship for at least 3 years is a factual determination. The court is required to examine the nature of the relationship between the parties having regard to the presence or absence of various circumstances that normally exist when a couple cohabits.

[41] I find that the mother has met the onus on her, on a balance of probabilities, to prove that there was a long standing continuous common law relationship between the parties.

[42] I do not accept the respondent's evidence that they were only friends or roommates. Friends or roommates do not usually buy cars for each other or list a friend as a beneficiary on RRSPs or on an employment benefit plan. I do not accept the respondent's explanation that the doctors must have made a mistake when the reports refer to Marie as his common law partner. All of the documentary evidence produced by Marie is consistent with Jim representing to third parties that they were in a committed relationship even if there were many periods of difficulties in that relationship.

[43] Jim could have produced documents to support his position that the mother added her name to the lease or that he only made the mother the beneficiary of his RRSP for a few months. Although he testified that Marie took these documents without his permission, he did not dispute their authenticity. He could have easily obtained his own bank records or a copy of his apartment lease to substantiate his version of events. I also discount his daughters' evidence about the sleeping arrangements or the nature of the relationship between their father and Marie as they had stopped spending time with their father as of 2011 and they would not have been aware of the financial arrangements.

[44] Therefore I find that Marie and Jim are spouses within the definition of the Family Law Act.

5. Is the Applicant Entitled to Spousal Support and if so, the Amount and Duration?

5.1 Statutory Provisions and Legal Principles

[45] Section 30 of the Family Law Act ("FLA") provides that:

Obligation of spouses for support- Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.

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

(8) Purposes of order for support of spouse - 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)

[47] 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.

[48] If there is a finding of entitlement then subsection 33 (9) of the FLA sets out the factors that the court should take into consideration in determining the amount and duration of support to be paid as follows:

Determination of amount for support of spouses, parents -

In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,

(a) the dependant's and respondent's current assets and means;

(b) the assets and means that the dependant and respondent are likely to have in the future;

(c) the dependant's capacity to contribute to his or her own support;

(d) the respondent's capacity to provide support;

(e) the dependant's and respondent's age and physical and mental health;

(f) the dependant's needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;

(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;

(h) any legal obligation of the respondent or dependant to provide support for another person;

(i) the desirability of the dependant or respondent remaining at home to care for a child;

(j) a contribution by the dependant to the realization of the respondent's career potential;

(k) Repealed: 1997, c. 20, s. 3 (3).

(l) if the dependant is a spouse,

(i) the length of time the dependant and respondent cohabited,

(ii) the effect on the spouse's earning capacity of the responsibilities assumed during cohabitation,

(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,

(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,

(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family's support,

(v.1) Repealed: 2005, c. 5, s. 27 (12).

(vi) the effect on the spouse's earnings and career development of the responsibility of caring for a child; and

(m) any other legal right of the dependant to support, other than out of public money.

5.2 Analysis with Respect to Entitlement to Spousal Support and Findings of Fact

[49] There is a presumption that spouses owe an obligation to support each other in accordance with need and to the extent that he or she is capable of doing so. So that evidence that may not have met the high threshold on the mother to prove that the Respondent had formed a settled intention to treat her daughter as a child of the family may be sufficient to meet the test of proving that he has an obligation to support her.

[50] In this case I have found that the parties were in a 10 year common law relationship. The mother was dependent on Jim for financial support throughout the relationship.

[51] Based on the factual findings already made, I find that the mother is entitled to support on both a compensatory and non-compensatory basis.

[52] The mother began to receive ODSP sometime in 2010 as a result of being found to be a person suffering from a disability due to a finding of a major depression and anxiety disorder with panic attacks.

[53] I find that the mother's only source of income is ODSP. She has been deemed to suffer from depression that has rendered her incapable of working. She also had an alcohol dependency issue which is considered to be a disease.

[54] I find that she was financially dependent on Jim to meet her needs. I accept Marie's evidence that Jim paid for the household expenses. Although they had a modest lifestyle in that they did not go out or entertain or take vacations nevertheless she became accustomed to a lifestyle based on his greater resources.

[55] Jim focused his evidence on the fact that Marie was self-supporting as she continued to work as an escort during their relationship. On the other hand it is Marie's evidence that she gave up a job as a manager of a restaurant when they met.

[56] Even if Marie had been an escort when the parties met and even for a few years thereafter, there is no evidence that she is now continuing in that line of work. I draw the common sense conclusion that younger women would generally be involved in being escorts. Although I find that the issue of whether or not Marie worked as an escort to be irrelevant to the determination of the issues before the court, in view of the considerable amount of time Jim devoted to this issue, I wish to add that the evidence of various Google searches produced by Jim did not provide proof that the ads were connected to Marie. Except for one ad that used the name, Mia, which is a nickname sometimes used by Marie, none of the ads were connected to her cell phone number or matched her physical description. I agree with the submissions of Marie's counsel that Jim made these allegations to embarrass Marie and dissuade her from pursuing this litigation.

[57] Marie was not cross-examined with respect to her ability to become employed or her attempts to find employment. Her entitlement to ODSP was also not questioned.

[58] I find that in view of Marie's difficulties with depression and alcohol dependency she has not worked in the restaurant industry for over 13 years and it would be difficult for her re-enter that line of work. I find that there is no evidence that Marie could become self-supporting. Jim has the ability to provide support based on his employment income and his overall financial circumstances.

[59] Therefore, I find that as a result of her illness and the amount of time she has not worked, she is not capable at the current time or at any time in the immediate future of obtaining employment.

5.3 Evidence with Respect to the Parties' Income

[60] Having determined that Marie is entitled to spousal support, the next step is to determine Jim's income.

[61] Jim has worked for the same employer for 26 years doing utility and maintenance work. He has a base salary and the opportunity to obtain overtime income. He testified that the availability of overtime has decreased. He estimated that his 2016 income would be about $71,000 but he did not produce any proof of his 2016 income.

[62] Based on the Notices of Assessment and the tax returns he produced, the following financial information with respect to his income was provided:

• 2006 - $92,522
• 2007 - $87,316
• 2012 - $102,295
• 2013 - $89,208
• 2014 - $99,343
• 2015 - $76,347

[63] Based on his financial statement sworn December 18, 2016, he has no debts and he has 2 GICs totalling $64,203 and an RRSP totalling $227,773. His financial statement does not indicate that he has any ongoing child support obligation to his daughters.

[64] It is not disputed that the mother receives an annual ODSP income of $15,696. There is no evidence that she is in receipt of any other source of income. She has no significant assets.

5.4 Analysis and Findings of Fact with Respect to the Parties' Income and Amount and Duration of Spousal Support Payable

[65] It is submitted by Marie's counsel that income should be imputed to the Jim as after the separation his income decreased significantly.

[66] It is well settled law, that 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. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made.

[67] However, although the decrease in Jim's income is suspicious, he was not shaken in cross-examination and his explanations for the decrease of the availability of overtime appeared to be credible.

[68] I therefore find that Jim's obligation to provide spousal support to Marie should be based on his actual income. The most recent Notice of Assessment filed is for 2015. Jim should have provided documentary evidence of his 2016 income to substantiate his claim that his income would be further reduced to about $71,000 in 2016. In the circumstances I find that his spousal support obligation should be based on his 2015 income of $76,347.

[69] Both counsel agreed that if there was a finding that Marie was entitled to spousal support that the court should rely on the Spousal Support Advisory Guidelines.

[70] Marie's counsel provided many Divorcemate calculations based on the different possible scenarios. These calculations were helpful and reliable.

[71] Jim's counsel only provided a calculation from, "My Support Calculator" which he advised was an online free service. I find that this calculation was inaccurate, misleading and not helpful. Counsel inputted Marie's ODSP as employment income which is not accurate as her income is from ODSP and there will be an automatic claw back if she receives spousal support. Further although the calculation provides a range of spousal support it does not indicate any details such as the Net Disposable Income of the parties' as a result of the various spousal support ranges. I surmise this is rather a crude tool and I place no weight on the range of spousal support in that calculation.

[72] Based on my finding that Jim does not have a child support obligation and that he is only required to pay spousal support and that his spousal support obligation should be based on his 2015 income of $76,347 and Marie's ODSP income is $15,698, the range of spousal support is from $965 to $1,287 with a mid-range of $1,126.

[73] In determining the appropriate amount and duration of spousal support I have considered that this was a 10 year relationship and that Marie is disabled. In Moge v. Moge the court held that the greater the disparity in the standards of living that is experienced by spouses in the absence of support are often a revealing indication of the economic disadvantage inherent in the role assumed by one party in the relationship. The court also held that as marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standard of living upon dissolution of the relationship.

[74] In this case I have found that the parties had a 10 year relationship. Ten years is a mid-length relationship but it is still quite a significant amount of time especially as it is clear in this case that Marie's standard of living has been drastically reduced as she is now forced to meet all of her expenses from her disability income.

[75] In Bracklow v. Bracklow the court examined the obligation to support a spouse with health issues and at para. 48 stated that, "in some circumstances the law may require a healthy party continue to support a disabled party, absent contractual or compensatory entitlement. Justice and consideration of fairness may demand no less."

[76] I find that in the circumstances of this case and in particular her disability, her needs and her limited means, Marie is entitled to the higher end of the spousal support range of $1,287 per month as even at that amount Jim would still have 74.2% of the net disposable income.

[77] No submissions were made by either counsel as to the duration of the spousal support. Considering the length of the relationship, the inability of Marie to support herself and her need, there is no basis for any fixed termination date at this time subject to the ability of the Respondent to bring a motion to change based on a change of circumstances.

6. Should the Order of Spousal Support be Retroactive to the Date of Separation?

[78] With respect to the commencement date, counsel for Marie submits that the date should be as of the separation. Marie testified that after the separation, she needed to concentrate on obtaining new accommodations for her and her daughter and then it took some time for her to obtain legal assistance through Legal Aid. She commenced her Application in 2015 about a year after the separation.

[79] Jim's counsel submits that any award should only commence as of the date of the application as it should not have taken Marie a year to find counsel who would accept a legal aid certificate.

6.1 Applicable Legal Principles with Respect to a Retroactive Order of Spousal Support

[80] Marie's counsel relies on the factors set out in the case of Kerr v. Baranow for the general principle that the factors with respect to retroactive child support as set out in D.B.S. apply with some modifications to a claim for retroactive spousal support. Presumptively the date of the claim being issued is the start date for support, unless there is a reason to order otherwise.

[81] In the case of Bremer v. Bremer the Court of Appeal at para. 9, set out the following considerations governing an award of retroactive spousal support include:

i) the extent to which the claimant established past need (including the requirement to encroach on capital) and the payor's ability to pay;

ii) the underlying basis for the ongoing support obligations;

iii) the requirement that there be a reason for awarding retroactive support;

iv) the impact of a retroactive award on the payor and, in particular, whether a retroactive order will create an undue burden on the payor or effect a redistribution of capital;

v) the presence of blameworthy conduct on the part of the payor such as incomplete financial disclosure;

vi) notice of an intention to seek support and negotiations to that end;

vii) delay in proceeding and any explanation for the delay; and

viii) the appropriateness of a retroactive order pre-dating the date on which the application for divorce was issued.

6.2 Analysis and Findings of Fact with Respect to Retroactive Spousal Support

[82] Applying these considerations to the facts of this case, I find that:

1. Marie's past need for support is undisputed and Jim has the ability to pay spousal support;

2. Marie was dependent on Jim throughout the relationship to meet her needs as her own income from ODSP was insufficient to meet her needs and the needs of her daughter;

3. There was no unreasonable delay by Marie in commencing this application. I find that her explanation that her first priority was to find appropriate accommodations for herself and her daughter and that it then took some time to find legal assistance. There was only a 1 year delay which I do not find unreasonable;

4. There is some blameworthy conduct by Jim in that he did not financially assist Marie since their separation except for providing her with first and last month's rent;

5. Marie has suffered hardship in that she has had to support herself based only on her ODSP income; and

6. Jim would not suffer any undue hardship if a retroactive order was made based on his financial circumstances as he presently has sufficient assets to pay a lump sum.

7. Order

[83] There will be an order as follows:

1. The Applicant's claim for child support is dismissed.

2. The Respondent shall pay spousal support to the Applicant in the amount of $1,287.00 per month as of April 1, 2017.

3. The Respondent shall pay a lump sum of spousal support of $42,471.00 being $1,287.00 per month from July 1, 2014 up to and including March 1, 2017, within 60 days.

4. The Applicant and Respondent shall exchange copies of their respective Income Tax Returns and Notices of Assessment as of June 30, 2017 and each year thereafter as long as there is an existing support obligation.

5. Support Deduction Order to issue.

[84] In the event either party is seeking costs, he or she will give the other party notice within 14 days. If the parties are unable to reach an agreement, the party seeking costs shall serve and file a written cost submissions, not to exceed 3 pages with any Offer to Settle and a Bill of Costs attached within 30 days. The responding party shall serve and file their responding written cost submissions, not to exceed 3 pages, with any Offer to Settle and Bill of Costs attached within 14 days after being served. All cost submissions are to be filed with the trial co-ordinator.

Justice Roselyn Zisman

Date: March 20, 2017