DATE: October 19, 2022

COURT FILE NO. D41776/21

ONTARIO COURT OF JUSTICE

B E T W E E N:

MERLENE THOMAS

IKENNA ANIEKWE, for the APPLICANT

APPLICANT

• and -

JEFFREY SAUNCHEZ

ACTING IN PERSON

RESPONDENT

HEARD: OCTOBER 17, 2022

JUSTICE S.B. SHERR

REASONS FOR DECISION

Part One – Introduction

[1] This trial was about the applicant’s claim for spousal support from the respondent.

[2] The applicant seeks indefinite spousal support from the respondent in the amount of $474 each month, starting on January 1, 2018, increasing to $576 each month, starting on January 1, 2022. She seeks to impute the respondent’s annual income at $65,000 from 2018 to 2021 and at $75,000, starting on January 1, 2022, for the purpose of the support calculation.

[3] The respondent asks the court to dismiss this application. He submits that the applicant is not entitled to spousal support. If the court finds that the applicant is entitled to spousal support, he submits that he has a limited ability to pay it. He also seeks to impute additional income to the applicant for the purpose of the support analysis.

[4] On June 17, 2022, Justice Roselyn Zisman provided directions for a focused hearing of the spousal support issues. She endorsed that the parties could rely on affidavits and financial statements filed to date. She ordered that updated financial statements and any supplementary affidavits should be filed at least two weeks before the trial and that if the respondent was unable to prepare his own affidavit, he could testify orally. Both parties were given up to one hour to cross-examine the other.

[5] Neither party filed a supplementary affidavit or a further financial statement. The applicant advised the court that there had been no changes in her financial circumstances since her last financial statement was prepared.

[6] The court gave the parties additional time to provide oral evidence so that it would have the necessary evidence to make this decision.

[7] The issues for this court to determine are:

a) Is the applicant entitled to spousal support?

b) If so:

i. What are the parties’ incomes for the purpose of the support analysis?

ii. What should be the duration and amount of the support order?

iii. When should the support order start?

Part Two – Background facts

[8] The applicant is 56 years old. The respondent is 55 years old.

[9] The parties were married in Jamaica on December 24, 2010. It was the first marriage for both parties. They have no children together.

[10] Both parties have adult children from other relationships. The applicant has two other children. The respondent has three children. One of his children resides with him in Toronto. His other children reside in Jamaica.

[11] The applicant lived in Canada and the respondent lived in Jamaica after they were married.

[12] The applicant sponsored the respondent to live in Canada. He arrived in Toronto on October 8, 2014. He is now a permanent resident of Canada.

[13] The parties cohabited until they separated on January 1, 2018. They have not reconciled since then.

[14] The applicant issued this application on August 25, 2021.

[15] The applicant is employed part-time as a lunchroom supervisor by the Toronto District School Board. She also receives a monthly amount each month from Ontario Works. This amount varies based on her employment earnings. She also receives Employment Insurance during the summer months.

[16] The respondent is employed in construction. His year-to-date pay stub indicates that he is on pace to earn about $73,749 in 2022.

Part Three – Is the applicant entitled to spousal support?

3.1 Legal considerations

[17] Section 30 of the Family Law Act (the Act) states that 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.

[18] Subsection 33 (8) of the Act sets out the purposes of spousal support and subsection 33 (9) sets out the considerations for the determination of the amount, if any, and duration of spousal support. The court has considered these subsections in making its decision.

[19] 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.

[20] It is critical for the court to determine all grounds for entitlement, as the basis for entitlement may have a significant impact on quantum and duration of spousal support. See: Cassidy v. McNeil, 2010 ONCA 218 (C.A.), at para. 64.

[21] The Court of Appeal in Fisher v. Fisher, 2008 ONCA 11 stated that before applying the Spousal Support Advisory Guidelines (SSAG), entitlement to support must first be established.

[22] In Beneteau v. Young, the court described three categories of compensatory support as follows:

i. non-specific compensatory support (where a spouse’s ability to achieve self-sufficiency was comprised by career/job dislocation for the family); Walsh v. Walsh, 2006 CarswellNB 582 (Q.B.);

ii. specific calculable disadvantage (where a spouse can point to a specific calculable overriding loss resulting from the marriage or the roles adopted in marriage)’ Spurgeon v. Spurgeon (2001), 15 R.F.L. (5th) 440 (Ont. Div. Ct.);

iii. specific calculable and advantage conferred (where a spouse conferred a substantial career enhancement opportunity on the other spouse): Caratun v. Caratun (1992), 42 R.F.L. (3d) 113 (Ont. C.A.).

[23] The legal considerations for the entitlement to compensatory support were reviewed by Chappel J. in Thompson v. Thompson, 2013 ONSC 5500, at paras. 55–58, as follows:

[55] The compensatory basis for spousal support entitlement recognizes that upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage. The objective of a compensatory award is to provide some degree of compensation for the sacrifices and contributions which a spouse made during the marriage, for economic losses which they experienced and may continue to experience as a result of the marriage, as well as the benefits which the other spouse has received as a result of these sacrifices and contributions. A compensatory award recognizes that such sacrifices, contributions and benefits conferred often lead to interdependency between the spouses and merger of their economic lives.

[56] Compensatory support claims arise most typically in situations where one spouse has suffered economic disadvantage and contributed to the other spouse’s income earning potential as a result of assuming primary responsibility for child care and/or home management obligations. However, a compensatory claim can also be founded on other forms of contribution to the other party’s career, such as supporting the family while the other party obtained or upgraded their education, selling assets or a business for the benefit of the family unit, or assisting a party in establishing and operating a business that is the source of that party’s income.

[57] In considering whether a compensatory claim exists, the court must undertake a broad and expansive analysis of advantages and disadvantages which each party experienced throughout the relationship as a result of the marital union. In some situations, a compensatory claim may be defeated or weakened by the fact that disadvantage suffered by the claimant spouse is offset by disadvantage of a different type experienced by the other spouse.

[58] A compensatory claim for spousal support may be established even where the recipient spouse is employed and reasonably self-supporting at the time of the parties’ separation. This situation can arise where, despite that spouse’s ability to meet their own needs, their financial advancement has been impaired as a result of subordinating their career to that of the other spouse, or from adopting a less lucrative career path in order to accommodate the needs of the family.

[24] In determining need, courts ought to be guided in part by the principle that the spouse receiving support is entitled to maintain the standard of living to which she was accustomed at the time cohabitation ceased. The analysis must consider the recipient’s ability to support herself, in light of her income and reasonable expenses. See: Gray v. Gray, 2014 ONCA 659.

[25] The word “need” is not limited to one’s basic needs. It can be interpreted to cover situations where a spouse suffers a significant decline in the standard of living he or she enjoyed during the relationship. See: McIntyre v. Winter, 2020 ONSC 4376; Nixon v. Lumsden, 2020 ONSC 147.

[26] On its own, a mere disparity of income that would generate an amount under the SSAG does not automatically lead to entitlement, although a disparity of income may lead to a finding that there is an economic hardship arising from the breakdown of the marriage. See: Lee v. Lee, 2014 BCCA 383; R.L. v. L.A.B., 2013 PESC 24; Berger v. Berger, 2016 ONCA 884.

[27] In practice, entitlement will generally be found in cases where there is a significant income disparity at the time of the initial application. See: Spousal Support Advisory Guidelines: The Revised User’s Guide, April 2016: Professor Carol Rogerson and Professor Rollie Thompson.

[28] The depth of need can be a strong non-compensatory factor pushing the amount of support higher in the range. See: Bastarache v. Bastarache, 2012 NBQB 75.

3.2 Analysis

[29] The respondent’s position is that the applicant is not entitled to support for the following reasons:

a) He said that she promised a better life for him in Canada and did not deliver on that promise.

b) He said that she promised to sponsor his children to Canada and did not do so.

c) He said that she promised to have a job for him when he came to Canada and that was not the case.

d) He testified that he would not have come to Canada if he had known that she would have broken those promises.

e) He said that she stayed home for most of their time together in Canada and refused to work.

f) He testified that they were not financially interdependant.

[30] The respondent provided no independent evidence (such as texts or emails) that the applicant made the alleged promises to him. He did not take any steps to sponsor two of his children until two years after he arrived in Canada and did not sponsor his third child.

[31] The respondent testified that he was able to find work two weeks after arriving in Canada. He was not disadvantaged, if in fact, the applicant had promised to find him work before he came to Canada.

[32] The respondent has chosen not to return to Jamaica, so the court places little credence on his statement that he would have never come to Canada if he had known that the applicant would break her promises. The evidence established that he is earning far more money in Canada than he ever earned in Jamaica.

[33] The applicant established entitlement to some compensatory spousal support for the following reasons:

a) She sponsored the respondent to come to Canada and in doing so, conferred a financial advantage on him. She provided evidence that she paid $1,500 for the sponsorship application and a total of $650 for the respondent’s airfare and passport expenses to enable him to come to Canada.

b) The respondent is earning far more income in Canada than he did in Jamaica and is living a better lifestyle in Canada.

c) The applicant also sent the respondent money for expenses, including medical expenses, from 2010 to 2014. Although the amounts were not large ($1,000 according to the applicant, a bit less according to the respondent), the amount was significant to the applicant since she was only earning about $16,000 annually during this time.

d) The court finds credible the applicant’s evidence that she primarily took care of the household while the parties lived together. This permitted the respondent to maximize his income in Canada.

[34] However, the applicant’s compensatory entitlement to support is limited for the following reasons:

a) The parties had no children. Assuming primary care for children is often the basis for a strong compensatory support claim. See: Moge v. Moge, [1992] 3 S.C.R. 813.

b) The applicant conceded that her relationship with the respondent did not result in a loss of income or her earning capacity. She would have earned, and would be earning the same level of income if she had never married the respondent.

[35] The court finds that the applicant also established a non-compensatory basis for support for the following reasons:

a) While the parties disagree on the promises made to each other, they agreed that they intended to become financially interdependant when they married.

b) There is a significant disparity in the parties’ incomes. The applicant earns about $18,500 annually. The respondent earns $73,749 annually.

c) The applicant suffered some economic disadvantage from the breakdown of the relationship. She is reliant on Ontario Works. The respondent contributed towards rent and household expenses when they cohabited – the applicant now assumes the entirety of these expenses.

d) The respondent enjoys a much higher standard of living than the applicant.

[36] The applicant’s non-compensatory claim for support is limited by the following factors:

a) The applicant’s economic disadvantage arising from the breakdown of the relationship is relatively minor. She is earning what she would have earned if she had never met the respondent.

b) The parties had limited financial interdependence during their relationship. They had separate bank accounts and separate credit cards. The respondent contributed a monthly amount towards rent.

Part Four – Duration and amount of support

4.1 Legal considerations

[37] The Court of Appeal in Fisher v. Fisher, 2008 ONCA 11 stated that the SSAG, while only advisory, are a useful starting point to assess the quantum and duration of spousal support, once entitlement is established. The court wrote at paragraph 103:

In my view, when counsel fully address the Guidelines in argument, and a trial judge decides to award a quantum of support outside the suggested range, appellate review will be assisted by the inclusion of reasons explaining why the Guidelines do not provide an appropriate result. This is no different than a trial court distinguishing a significant authority relied upon by a party.

[38] Amount and duration are interrelated parts of the SSAG formula. See: Domirti v. Domirti, 2010 BCCA 472. Using one part of the formula without the other undermines its integrity and coherence. Extending duration beyond the formula ranges, for example, may require a corresponding adjustment of amount by means of restructuring (see SSAG Ch. 10) or a finding that the facts of the case require an exception (see SSAG Ch. 12). See: Spousal Support Advisory Guidelines: Revised User’s Guide, supra, Chapter 7).

[39] The Ontario Court of Appeal in Mason v. Mason, 2016 ONCA 725 set out that if the court is going to apply the SSAG, it must calculate income in accordance with the Child Support Guidelines (the guidelines) or provide an explanation for why it isn’t doing so.

[40] In Mason, the Ontario Court of Appeal cautioned against courts defaulting to the middle range of the SSAG in a spousal support determination. Each case requires a contextual analysis. It wrote in paragraph 122:

Further, in The Spousal Support Advisory Guidelines: A New and Improved User’s Guide to the Final Version, the authors note, at p. 1 of the Introduction, that one of the challenges of the SSAGs “is the problem of unsophisticated use.” The authors continue by stating:

For too many, using the Guidelines means just plugging the income figures into the software program, getting the range and choosing the mid-point. There is more to the advisory guidelines than this, and using them in this way can lead to inappropriate results.

[41] A strong compensatory claim suggests support in the higher end of the ranges for both amount and duration. See: Wharry v. Wharry, 2016 ONCA 930, paragraph 95.

[42] In general, awards in highly compensatory cases tend to be at the longer end of the durational range and those in many non-compensatory cases (e.g. where the purpose of the award is to provide a transition from the higher, marital standard of living) at the shorter end of the duration range. See: Spousal Support Advisory Guidelines: Revised User’s Guide, supra, Chapter 7).

[43] Just because there is a partial compensatory basis for support does not automatically entitle a recipient to indefinite support. See: Choquette v. Choquette, 2019 ONCA 306.

[44] In Climans v. Latner, 2020 ONCA 554, the court found it was an error to order indefinite spousal support, in a without children scenario, because the rule of 65 was not engaged, and made a 10-year support order.

[45] A basic principle of spousal support law is that the recipient must make reasonable efforts to become economically self-sufficient. See: Dingle v. Dingle, 2010 ONCJ 731.

4.2 Assessment of the parties’ incomes

[46] The respondent submits that income should be imputed to the applicant for the purpose of the support calculation. The applicant submits that her 2021 income of $18,533 should be used.

[47] The test for imputing income for child support purposes applies equally for spousal support purposes. See: Rilli v. Rilli, [2006] O.J. No. 4142, (Ont. Fam. Ct.); Perino v. Perino, O.J. No. 4298 (Ont. S.C.). The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson.

[48] The applicant has a grade 10 education. She works as a seasonal lunchroom supervisor for the Toronto District School Board.

[49] The applicant testified that she also has a certificate as a personal support worker but has never worked in that field.

[50] The applicant testified that she worked full time at a call centre, earning about $11 each hour, from 2011 to 2016. This would result in an annual income of about $23,000. She also spent many years doing factory work. She claimed that she last worked at a factory in 2016 full time for 6 months. However, the notices of assessment filed by the applicant don’t reflect that she earned this level of income. They set out the following annual income:

2013 $16,074 2014 $17,951 2015 $12,037 2016 $859 2017 $6,658 2018 $13,469 2019 $13,469 2020 $30,394 (inclusive of Canada Emergency Recovery Benefits) 2021 $18,533

[51] The applicant receives a top up each month from Ontario Works. She testified that she is earning the same amount of income in 2022 that she earned in 2021.

[52] The applicant testified she has medical limitations. She said that she cannot do heavy lifting due to tendinitis and pain in her arm and shoulder. She said that she has Type Two diabetes and high blood pressure.

[53] In Davidson v. Patten, 2021 ONCJ 437, Justice Carole Curtis set out that a party resisting a claim for imputation of their income based on medical reasons should provide a medical report setting out at least the following information:

i. Diagnosis;

ii. Prognosis;

iii. Treatment plan (is there a treatment plan? And what is it?);

iv. Compliance with the treatment plan; and,

v. Specific and detailed information connecting the medical condition to the ability to work (e.g, this person cannot work at the pre-injury job; this person cannot work for three months; this person cannot work at physical labour; this person cannot return to work ever).

[54] The mother did not provide such supporting medical evidence – specifically medical evidence that sets out what work she can and cannot do.

[55] The applicant testified that she had recently made an application to work in a retirement home as a personal support worker. She could not explain why she has waited so long to apply for this type of work. She also could not provide an acceptable reason for why she hasn’t applied for another job at a call center.

[56] The court recognizes that the applicant’s job opportunities are partially limited due to her age and some physical limitations. However, it finds that she could be earning more income and that she has not taken sufficient steps to become self-sufficient. The court will impute an annual income to her of $24,000 for the purpose of the support analysis. This is only 75% of a minimum wage income.

[57] The applicant asked the court to impute additional income to the respondent. There have been some minor cash deposits in his bank accounts that the respondent could not explain at trial. If the court was using the respondent’s 2018 income for the support analysis, it would have likely imputed a minor amount of additional income based on these unexplained deposits. However, since the court is permitting the applicant to participate in the respondent’s post-separation increase in income, it will not impute more than the full-time income the respondent is earning from his present employment.

[58] The respondent’s most recent pay stub indicates that he has earned $56,730 to date until October 8, 2022. This is for a 40 week period. This projects to a 2022 income of $73,749. Wherever it can be ascertained, current income should be used in a support application. See: Vanos v. Vanos, 2010 ONCA 876; Wright v. Christie, 2011 ONCJ 109.

4.3 Duration and amount of support

[59] The SSAG set out that the formula in this case results in duration of 3.5 years to 7 years from the date of separation for spousal support, subject to variation and possible review. [1]

[60] The court will order spousal support of 5 years in an amount between the low range and the mid range of support in the SSAG calculation for the following reasons:

a) The applicant has a compensatory claim for spousal support, although it is a limited claim as set out in paragraph 34 above.

b) The applicant has a non-compensatory claim for spousal support, although it is also limited as set out in paragraph 36 above.

c) While the parties were married for 7 years, they only cohabited for three and one-half years. There was very limited financial interdependence while they lived in different countries.

d) The applicant is 56 years old. This makes it far more difficult for her to retrain. It limits her employment opportunites.

e) The duration of support will supplement the applicant’s income until she becomes eligible for early CPP payments at age 60.

f) The court is only going to order prospective spousal support. It will use the respondent’s current income for the purpose of the support calculation. This means that the applicant will be sharing in the post-separation increase in the applicant’s income. The respondent earned $53,523 in 2018.

[61] The SSAG calculations show that if an income of $24,000 is used for the applicant and an income of $73,749 is used for the respondent, the low range for monthly support is $435 and the mid range for monthly support is $508. The court will order an amount in between these two figures – $475 each month.

4.4 Start date for support

[62] The applicant asked to order support retroactive to the parties’ date of separation – January 1, 2018.

[63] The court will not order retroactive support. It will order that support be paid only on a prospective basis for the following reasons:

a) The duration of the award will be fixed for five years. A retroactive award to 2018 would leave the applicant without support prior to her turning 60 years old and receiving CPP.

b) If the court ordered support prior to January 1, 2021, it would need to discount the award for tax considerations. See: Hume v. Tomlinson, 2015 ONSC 843; This is because the respondent would lose the ability to deduct his support payments prior to that date. A discount for tax considerations would disadvantage the applicant.

c) The respondent does not have funds available to him to pay a lump sum retroactive award. The court would have ordered monthly payments for any support arrears if it had ordered retroactive support. The applicant would be no further ahead if the court took this approach.

d) The applicant will receive the benefit of sharing in the respondent’s post-separation increase in income by making the order prospective. Although she has some compensatory entitlement to support, ordinarily she would not be entitled to share in the full increase in the respondent’s increase in income. [2]

e) The applicant does not have a strong retroactive support claim for the following reasons: [3]

i. She did not ask for spousal support from the respondent prior to issuing her application on August 25, 2021. [4] Her explanation was that she hoped that she could maintain her relationship with the respondent. However, when she saw him with another woman, she felt that the respondent should be supporting her and not the other woman.

ii. There is no blameworthy conduct by the respondent. There has been an issue about the applicant’s entitlement to support. It was not realistic to expect that the respondent knew that he had a spousal support obligation to the applicant.

iii. The applicant led no evidence that her circumstances were disadvantaged because support wasn’t paid during the retroactive period.

iv. Lastly, a sizeable retroactive support order would cause some hardship to the respondent.

Part Five – Conclusion

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

a) The respondent shall pay the applicant spousal support of $475 each month, starting on November 1, 2022. The payments shall continue for five years, after which time spousal support shall terminate.

b) A support deduction order shall issue.

[65] If either party seeks costs, they shall serve and file written submissions by November 2, 2022. The other party will then have until November 16, 2022 to serve and file their written response (not to make their own costs submissions). The submissions shall not exceed 3 pages, not including any bill of costs or offer to settle. They are to be either delivered or emailed to the trial coordinator’s office.

Released: October 19, 2022

_____________________ Justice S.B. Sherr

Footnotes

[1] The software calculation will be attached to this decision.

[2] See: Kinsella v. Mills, 2020 ONSC 100 for a full discussion of the factors involved in determining whether a spousal support recipient should share in a post-separation increase in income. Here, the court has partially offset the impact of the applicant sharing in the respondent’s post-separation increase in income by ordering support in a lower range in the SSAG, by not ordering retroactive support and by not imputing additional income to the respondent.

[3] These are the factors for courts to consider in a retroactive spousal support analysis. See: Kerr v. Baranow, 2011 SCC 10; Bremer v. Bremer.

[4] The applicant did demand, starting in August 2020, that the respondent refund what she paid for the sponsorship application and for paying for his plane tickets and passport. She threatened to take him to court if he did not pay these monies (which she added up to $2,150). This was not a spousal support request.