Court File and Parties

Date: December 4, 2024 Court File No.: D44879/24 Ontario Court of Justice

B E T W E E N:

BRUCE HERNAN CANALES APPLICANT

LISA CHEGINI and JULIANA DAPULA, for the APPLICANT

- and –

LORA DI CARMINE RESPONDENT

MYKHAYLO POLUEKTOV, for the RESPONDENT

Heard: DECEMBER 2, 2024

JUSTICE S.B. SHERR

Reasons for Decision

Part One – Introduction

[1] The respondent (the mother) has brought a motion seeking temporary spousal support from the applicant (the father). She asks that he pay spousal support of $2,593 each month, starting on April 1, 2024.

[2] The parties cohabited for 15 years. They separated on December 23, 2023. They have two children, ages 13 and 11 (the children). The children spend equal time with each parent.

[3] The mother claims that she has been fully disabled and unable to work since 2016. She submits that she is entitled to spousal support from the father on both a compensatory and a non-compensatory basis.

[4] The father submits that the mother is not entitled to spousal support, as she is deliberately unemployed and is capable of being self-supporting. He further submits that there are material facts in dispute about the mother’s entitlement to support and it is premature to make a spousal support order. He asks that the issue be sent to trial for a full testing of the evidence.

[5] The father has been paying child support of $725 each month to the mother since March 1, 2024. [1]

[6] On October 8, 2024, the court gave the mother leave to bring a motion for temporary child and spousal support.

[7] The mother only moved for temporary spousal support. When discussing this with her counsel on the return of the motion, it appeared he felt a claim for child support was included within his claim for spousal support. It wasn’t.

[8] The court canvassed with the father’s counsel if the father would agree that the court also determine temporary child support on the motion. He did not agree. The court understood his position. A child support analysis in this case is not straightforward. The court needs to consider the entirety of section 9 of the Child Support Guidelines (the guidelines), as this is a shared parenting arrangement. [2] The father reasonably thought he was only responding to the mother’s spousal support motion. While he filed evidence regarding the set-off factor in section 9 (a) of the guidelines, he did not file evidence regarding the increased costs of a shared parenting time arrangement in section 9 (b), and did not address the means, needs and circumstances of the parties in a shared parenting context, as required in section 9 (c).

[9] The court advised the parties it would only determine the temporary spousal support issue.

[10] The parties agreed that the court should base its spousal support analysis on the father paying child support of $725 each month to the mother.

[11] The court relied on the affidavits and financial statements filed by the parties.

[12] The issues to be determined on this motion are:

a) Should the court decline to determine spousal support on a temporary basis and, instead, send the issue to trial? b) Is the mother entitled to temporary spousal support? And, in making this determination, should any additional income be imputed to her? c) If the mother is entitled to spousal support, how much temporary support should the father pay to her and what should the start date be?

Part Two – Brief background facts

[13] The mother is 48 years old. The father is 49 years old.

[14] The parties cohabited from 2008 until December 23, 2023.

[15] The mother has an adult child from another relationship.

[16] The father works as a delivery operations manager. He represented that his annual income is $106,675. [3] The mother believes he is earning additional income from a side business. However, at this time, she has no evidence to support an imputation of additional income to him.

[17] The mother has not worked since 2016. She says that she is medically disabled.

[18] In 2020, the mother received a settlement from a disability insurer of $125,000. The mother had been employed as an administrative office assistant when she stopped working in 2016. Once she received her settlement funds, her former employer paid her severance of about $23,000.

[19] The mother is in receipt of social assistance through the Ontario Disability Support Program (ODSP). She receives $1,057 each month.

[20] The mother is the parent claiming all tax benefits and credits for the children, including the Canada Child Benefit. The parties agreed that the spousal support analysis should be conducted based on the mother being the only parent receiving these benefits at this time.

[21] The mother resides in her mother’s (the maternal grandmother’s) home. The father has his own residence.

[22] The father issued this application on March 4, 2024.

[23] The mother filed her Answer/Claim on April 4, 2024.

[24] The parties consented to a comprehensive parenting plan that was incorporated into a temporary court order on July 3, 2024. The order provides for joint decision-making responsibility for the children, a week-about parenting schedule and specified holiday parenting time.

Part Three – Statutory considerations

[25] 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.

[26] Subsection 33 (8) of the Act sets out the purposes of spousal support and subsection 33 (9) of the Act sets out how to determine the amount of spousal support. The court has considered these provisions in making this order.

Part Four – Legal principles on temporary spousal support motions

[27] In Liddell-MacInnis v. MacInnis, 2021 ONSC 1787, Justice Melanie Kraft summarized the principles that apply on motions for temporary spousal support as follows:

a) The party claiming temporary spousal support has the onus of establishing that there is a triable (prima facie) case, both with respect to entitlement and quantum. The merits of the case in its entirety are to be dealt with at trial. b) In the event that a spousal support claimant cannot establish an arguable case for entitlement to spousal support, the motion for temporary relief should be dismissed, even if the claimant has need and the other party has the ability to pay. c) The court is not required to carry out a complete and detailed inquiry into all aspects and details of the case, or to determine the extent to which either party suffered economic advantage or disadvantage as a result of the relationship or its breakdown. That task is for the trial judge. d) The primary goal of interim spousal support is to provide income for a dependent spouse from the time the proceedings are commenced until the trial. Interim support is meant to be in the nature of a “holding order” to, insomuch as possible, maintain the accustomed lifestyle pending trial. e) Assuming that a triable case exists, interim support is to be based primarily on the motion judge’s assessment of the parties’ means and needs. The objective of encouraging self-sufficiency is of less importance. f) The Spousal Support Advisory Guidelines is a non-binding guideline that provides a “valuable litmus test” for assessing both the range within which spousal support, whether interim or final, should be ordered and the duration of such support.

[28] It must be kept in mind that an interim support award is a temporary order only and inevitably imperfect. See: Cardoso v. Cardoso, 2013 ONSC 5092. It is meant to provide “a reasonably acceptable solution to a difficult problem until trial”: See: Chaitas v. Christopoulos, [2004] O.J. No. 907 (S.C.J.).

Part Five – Entitlement to spousal support – legal considerations

[29] 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. Entitlement can be based on compensatory, non-compensatory or contractual grounds. See: Bracklow v. Bracklow.

[30] Where compensation is not the basis, a support obligation may arise from the marriage relationship itself when a spouse is unable to become self-sufficient. It can be based on need. Under this model, spousal support will be based on economic hardship resulting from the breakdown of the marriage, but not necessarily the roles assumed during the marriage. See: Bracklow, supra.

[31] 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.

[32] On its own, a mere disparity of income that would generate an amount under the Spousal Support Advisory Guidelines (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. There must be some evidence that the disadvantage to the recipient spouse must arise from the breakdown of the marriage. See: Lamb v. Watt, 2017 ONSC 5838. However, 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 (the RUG), Chapter 4. [4]

[33] The objectives for needs-based spousal support for persons with illness or disability are set out in Bracklow, at para. 46:

Following Moge’s broad view of causation in compensatory support and the concomitant acceptance of the availability of non-compensatory support, courts have shown increasing willingness to order support for ill and disabled spouses. Sometimes they have done this as a “transition” to self-sufficiency. But more often, they have frankly stated that the obligation flows from the marriage relationship itself. Collecting cases, Rogerson explains in “Spousal Support After Moge”:

The [more dominant] approach, ... particularly in cases of earning capacity permanently limited by age, illness or disability, and the one generally supported by the developing Court of Appeal jurisprudence, has been to award continuing support without regard to the source of the post-divorce need. On this approach, which I earlier referred to as the “basic social obligation” approach, causal connection arguments have been rejected not only in determining entitlement to support, but also in assessing the extent of the obligation. The message coming from the cases adopting this approach appears to be that one takes one’s spouse as one finds him or her, subject to all his or her, weaknesses and limitations with respect to income-earning capacity; and a spouse with higher earning capacity has a basic obligation to make continuing provision for a spouse who is unable to become self-sufficient at the end of the marriage. One is simply not allowed to abandon a spouse to destitution at the end of a marriage if one has financial resources which might assist in relieving the other spouse’s financial circumstances. [Emphasis in original; citations omitted.].

Also see: McGuire v. Bator, 2022 ONCA 431, paragraph 27.

[34] The Ontario Court of Appeal discussed entitlement to spousal support based on non-compensatory grounds where the claimant had health issues in paragraphs 27 and 28 of Gray v. Gray, 2014 ONCA 659 as follows:

[27] One of the objectives of the Divorce Act is to relieve economic hardship. Need is not measured solely to ensure a subsistence existence, but rather should be assessed through the lens of viewing marriage as an economic partnership. As stated by this court in Marinangeli v. Marinangeli (2003), 66 O.R. (3d) 40 at para. 74, 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.

[28] In the case before us, Ms. Gray’s health prevents her from working. This is relevant to the assessment of her needs. As stated by the Supreme Court in Bracklow v. Bracklow, [1999] 1 S.C.R. 420, “in some circumstances the law may require that a healthy party continue to support a disabled party, absent contractual or compensatory entitlement. Justice and consideration of fairness may demand no less.” (at para. 48).

[35] 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; Fiorenza v. Mitic, 2024 ONCJ 467.

Part Six - Positions of the parties regarding entitlement to spousal support

[36] The mother claims that she is entitled to temporary spousal support on both a compensatory and a non-compensatory basis.

[37] The mother states she was the children’s primary caregiver until she agreed to a shared parenting arrangement with the father after the parties separated. She said this role resulted in the father being able to advance his career.

[38] The mother claims she has been economically disadvantaged by the breakdown of the relationship. She said she is unable to work due to her disabilities. She is in receipt of ODSP. She says she has the need for support and the father has the ability to pay it.

[39] The father submits that the mother is not entitled to support. He claims that:

a) The mother has not established a prima facie case for entitlement to spousal support and this issue should, instead, be determined after a trial. b) The mother was not the children’s primary caregiver. He submits she does not have a compensatory claim for spousal support. c) The mother is medically capable of working. He feels she has been manipulating the system since 2016. d) The mother is intentionally unemployed. e) The mother’s standard of living is similar to his own and she has no need for non-compensatory support.

[40] The father asks the court to impute annual income of $60,000 to the mother for the purpose of the support analysis. He feels she is capable of being self-supporting and asks that her motion be dismissed.

Part Seven – Should income be imputed to the mother?

7.1 Legal principles for imputing income

[41] The jurisprudence for imputation of income sets out the following:

a) The Ontario Court of Appeal in Drygala v. Pauli, [2002] O.J. No. 3731(Ont. CA), set out the following three questions which should be answered by a court in considering a request to impute income:

i) Is the party intentionally under-employed or unemployed? ii) If so, is the intentional under-employment or unemployment required by virtue of his or her reasonable educational needs, the needs of a child or reasonable health needs? iii) If not, what income is appropriately imputed?

b) 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. See: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552. (Ont. C.A.). c) Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719. d) The receipt of ODSP or Workplace Safety and Insurance Board benefits is not sufficient proof of one’s inability to work for support purposes. See: Tyrrell v. Tyrrell 2017 ONSC 6499 (SCJ). The court cannot take judicial notice of any eligibility requirements for ODSP. Nor can it delegate the important and complex determinations of employability and income earning capacity to unknown bureaucrats applying unknown evidence to unknown criteria. See: Abumatar v. Hamda, 2021 ONSC 2165. e) A party must prove that any medical excuse for being underemployed is reasonable. See: Rilli v. Rilli, [2006] O.J. No. 4142 (SCJ.). Cogent medical evidence in the form of detailed medical opinion should be provided by the party in order to satisfy the court that his/her reasonable health needs justify his/her decision not to work. See: Cook v. Burton and Stoangi v. Petersen. f) A party who wishes to have her medical condition taken into account as a basis that she cannot work bears the onus to establish material disability. This goes beyond testifying that she suffers from depression and anxiety: she must establish that the extent of her condition disables her from work. This onus cannot ordinarily be discharged solely on the basis of the party’s testimony. … She would need to produce medical records and expert evidence about her condition, prospects and treatment. See: Geishardt v. Ahmed, 2017 ONSC 5513; Wilkins v. Wilkins, 2018 ONSC 3036. g) The court must have regard to the payor’s capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living enjoyed during the parties’ relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson. h) The court can also impute income where the evidence respecting income is not credible for any other reason. See: Heard v. Heard, 2014 ONCA 196 (C.A.), at paras. 33-35; Gostevskikh v. Gostevskikh, 2018 BCSC 1441 (S.C.).

[42] Some courts have determined income should not be imputed to a recipient on a temporary spousal support motion when it requires an in-depth analysis. See: Rankin v. Rankin, 2021 ONSC 4537; Gannon v. Gannon, 2021 ONSC 7160. That said, if there is strong evidence supporting an imputation of income, the court should not hesitate to do so on a temporary motion to achieve a fair result.

7.2 Analysis of the father’s request to impute income to the mother

[43] The court finds that the father did not meet his onus to impute income to the mother on a temporary basis.

[44] The court also finds that the mother has provided sufficient medical evidence to establish that she is presently unable to work. The court finds she is not deliberately unemployed without valid reason. The court will not impute additional income to her for the purpose of this motion.

[45] The mother provided current medical reports from her family doctor and a specialist.

[46] The mother was assessed by Dr. Elliott Jacobson on June 5, 2024. Dr. Jacobson is Board Certified in Integrative Medicine. He has a specialized practice where he treats patients with chronic complex illness. Dr. Jacobson conducted an independent medical assessment of the mother in 2019, as part of the mother’s case against her disability insurer.

[47] Dr. Jacobson provided the following diagnosis of the mother:

a) Mylagic Encephalitis/Chronic Fatigue Syndrome. b) Migraine headaches. c) Chronic Myofascial Pain Syndrome. d) Post-Treatment Lyme Disease Syndrome.

[48] In his 2024 assessment, Dr. Jacobson found that the mother’s condition has not changed significantly since he assessed her in 2019. [5] Although she is more functional than she was at that time, she still has significant physical and cognitive disabilities that prevent her from being able to work in any capacity.

[49] Dr. Jacobson notes in his report that the mother has attempted a number of treatments. Any success appears to be transient. He wrote that she was being followed by her family doctor and was also seeing a nutritional therapist. The mother also goes to acupuncture which she reports helps with her neck and head pain. He noted the mother tried to see a manual therapist/osteopath which helped with her pain, but she could not afford to continue.

[50] Dr. Jacobson reported there is a lack of coordinated care with regard to the mother’s illness. He said, unfortunately, this is common with patients with these conditions. He said she has been trying to navigate the health care system on her own, with poor results.

[51] Dr. Jacobson made the following recommendations for the mother’s care:

a) To pursue her upcoming consultation with a pain clinic. b) Her family doctor should consider referring her for a physiatry assessment. c) She may benefit from a referral to the Environmental Health Clinic at Women’s College Hospital. d) She should consider seeing a Neurologist/Migraine specialist, who may be able to offer treatment advice related to her chronic head and neck pain. e) Once the mother’s symptoms are better managed, she may be able to engage in a formal exercise/rehab program.

[52] Dr. Jacobson concluded that it is difficult to predict when the mother will be able to return to work. If her symptoms are better managed and she was educated further on pacing, she may be able to do some sedentary part-time work in the future.

[53] The mother also filed a report, dated July 4, 2024, from Dr. Oandasan, her family doctor.

[54] Dr. Oandasan reported that the mother first developed her symptoms in November 2015. These symptoms progressed and included: [6]

a) Headaches b) Fatigue c) Flu-like symptoms d) Light sensitivity e) Eye pain and visual blurriness f) Joint pain g) Nausea h) Sleep disturbances i) Anxiety and panic attacks j) Depression k) Tinnitus l) Neck and shoulder pain m) Muscle spasms n) Stomach issues

[55] Dr. Oandasan referred the mother to an internal medicine specialist. She said the mother was diagnosed with Lyme disease and Chronic Fatigue Syndrome.

[56] Dr. Oandasan outlined in her report several attempts the mother has made to treat her illness, including Naturopathy, Biomagnetic Therapy and Ozone Therapy. She reported the mother has had financial barriers seeking treatment.

[57] Dr. Oandasan opined that the mother cannot be employed due to her multisystemic nature of her disability, both mentally and physically.

[58] Dr. Oandasan indicated she would refer the mother to the Environmental Health Clinic at Women’s College Hospital and the Canadian Centre for Integrated Medicine, as suggested by Dr. Jacobson.

[59] Dr. Oandasan stated she closed her clinical practice at the end of June 2024. The mother is now being followed by her replacement.

[60] The mother deposed she is on the waitlist at the Women’s College Hospital’s Environmental Health program for chronic fatigue. Unfortunately, it is a long wait-list.

[61] The father is convinced the mother is not disabled. In his affidavit, he uses the heading, “The respondent’s purported medical/health issues and medical disorder”. He hired a private investigator to put her under surveillance. His report did not add much to the discussion. The father said the mother engaged in physical activities at home. He questions how the mother can care for the children if she is so disabled.

[62] The father pointed out potential frailties in the medical reports. Dr. Oandasan did not file a curriculum vitae. Given the nature of the mother’s illness, there is also a significant self-reporting component in the reports. He also referred to a tribunal decision where Dr. Oandasan was criticized.

[63] At this stage, the court prefers the medical evidence. It is consistent, thorough and spans five years. Dr. Jacobson is independent and specializes in patients like the mother. The mother has had multiple, chronic illnesses since 2016 that have significantly impacted her quality of life. She may be able to work part-time in the future, but that is highly speculative.

[64] The father lived with the mother from 2016 to 2023. He was aware she wasn’t working and was constantly seeking medical care. He filed no documentary evidence, such as texts, that he ever felt she was feigning these illnesses during their relationship.

[65] The nature of the mother’s illness means her functioning will vary from day to day. She has the maternal grandmother to assist her with childcare when she is not well. The father did not adduce convincing evidence that the mother is capable of even doing part-time work at this time.

[66] No additional income will be imputed to the mother.

Part Eight – Analysis of the mother’s entitlement to temporary spousal support

[67] The court finds that the mother has established a prima facie entitlement to temporary spousal support on both a compensatory and non-compensatory basis. There is no need to defer this decision until trial. The mother needs spousal support now and the father should be paying it.

[68] The court agrees with the father that it is unclear on the evidence whether the mother was the children’s primary caregiver prior to 2016. However, the evidence informs the court that the mother was the children’s primary caregiver starting in 2016. She was a stay-at-home parent. She took the children to their appointments. The father was at work full-time and financially supported the family. He was able to advance his career while the mother looked after the children and the household. This forms a compensatory basis for temporary spousal support. The extent of that compensatory claim will be fully assessed at trial.

[69] The mother has a strong prima facie non-compensatory claim for temporary spousal support for the following reasons:

a) She has a significant need for spousal support. She is on ODSP, a form of social assistance. b) She is medically disabled and unable to earn income at this time. c) The father was aware she had medical disabilities during their relationship. She was not working. He supported the family. d) She has been significantly disadvantaged by the breakdown of the relationship. e) This was a 15-year relationship. She was completely financially dependent on the father. f) The children have a lower standard of living with her than with the father.

Part Nine – The amount of spousal support

9.1 Legal considerations

[70] 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 of spousal support once entitlement is established. They have been endorsed as ideal for use on temporary support motions. See: D.R.M. v. R.B.M., 2006 BCSC 1921, [2006] B.C.J. No. 3299. Both parties presented the court with SSAG software calculations.

[71] At Chapter 8.6 in the RUG, the authors observe the following about spousal support orders in shared parenting arrangements:

a. In shared custody cases, there is a clear default location for amount in the range: the amount of spousal support which would leave the children in each household with roughly similar standards of living. This outcome is consistent with the strong statements about similar living standards in Contino v. Leonelli-Contino, 2005 SCC 63. b. Where neither spouse has re-partnered and there are no new children in either household, the starting point should be an amount of spousal support that leaves each household with equal net disposable income (NDI). The SSAG range in shared custody cases always includes this 50/50 NDI split, to recognize the importance of this principle. This default outcome can be adjusted, depending upon housing costs and other factors. Sometimes the equal NDI point is in the mid-range, but it is just as often lower or higher in the SSAG range. c. In Ontario, there is now a strong trend to equalize net incomes in these cases: Kochar v. Kochar, 2014 ONSC 5211; Neilipovitz v. Neilipovitz, 2014 ONSC 3008; Lafazanidis v. Lafazanidis, 2014 ONSC 3287; Rankin v. Rankin, 2014 ONSC 235; Martins v. Martins, 2014 ONSC 113; Dupuis v Desrosiers, 2013 ONCJ 720; C.L.Y. v. D.G.Y., 2013 ONSC 6550; Mayer v. Mayer, 2013 ONSC 7099; Cuffe v. Desjardins, 2013 ONSC 4044; Price v. Burgess, 2013 ONSC 1142; MacDonald v. MacDonald, 2012 ONSC 6657; and Hurrell v. Hurrell, 2012 ONSC 4824.

[72] In Mason v. Mason, [2016] ONCA 725, 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.

[73] 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.

[74] 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.

9.2 Analysis

[75] In determining the SSAG ranges, the following has been inputted into the software calculations:

a) The father’s annual income is $107,607. b) The mother’s income is zero. In Chapter 6 of the RUG, the authors write:

Social assistance is not income for spousal support purposes, whatever its name, even if it’s called Ontario Works or Ontario Disability Support Program (ODSP) or Alberta’s Assured Income for the Severely Handicapped (AISH) or some other confusing name (SSAG 6.2). ODSP still appears to fool some lawyers and judges, who erroneously treat it as income for the recipient and thus understate the spousal support range. For examples of correct treatment of ODSP and social assistance, see Fountain v. Fountain, 2009 CarswellOnt 6342 (S.C.J.); Quattrochiocchi v. Quattrociocchi, [2008] O.J. No. 5341, 2008 CarswellOnt 7977 (S.C.J.); and Stano v. Stano, 2014 BCSC 1677.

c) The mother is receiving all tax benefits and credits for the children. [7] d) The father is paying child support of $725 each month.

[76] The SSAG software calculations generate spousal support amounts as follows:

Low - $1,624 Mid - $1,908 High - $2,198

[77] The father submitted that the mother has a higher standard of living than him because she still lives in the maternal grandmother’s home. He said the mother has not provided proof that she pays rent to the maternal grandmother of $1,200 each month, as she claimed. The court did not give much weight to this argument. In his affidavit, the father refers to assisting the mother with her rent payments after separation. The parties had lived with the maternal grandmother since 2017. He did not deny they paid rent to her. Lastly, he should be the one supporting the mother, not the maternal grandmother or the taxpayer.

[78] The court will order the father to pay the mother spousal support of $2,000 each month. The software analysis shows this leaves the father with 51.1% of the family’s net disposable income. This is consistent with the observation in the RUG, set out in paragraph 71 above, that in a shared parenting arrangement, courts attempt to equalize net disposable incomes between the two households. This is particularly the case when there is a longer, established relationship, as we have here.

[79] The court notes the temporary spousal support amount is this high because the father is paying child support well below the set-off amount between the parties. A larger child support order will reduce the amounts generated in the SSAG ranges.

[80] The mother asked that spousal support start on April 1, 2024. [8] This is prospective support and is presumptively payable. See: MacKinnon v. MacKinnon, 75 O.R. (3d) 175 (C.A.). This presumption was not rebutted. The temporary spousal support order will start on April 1, 2024. It will be subject to adjustment at trial, both with respect to the amount and the start date.

Part Ten – Conclusion

[81] A temporary order shall go on the following terms:

a) The father shall pay temporary spousal support to the mother of $2,000 each month, starting on April 1, 2024. This is subject to adjustment at trial, both with respect to the amount and the start date. b) Support payments made by the father to the mother since April 1, 2024 were for child support, not spousal support. c) A support deduction order shall issue.

[82] If either party believes there is an inputting error in the software attached to this decision they are to serve and file a Form 14B motion by December 13, 2024, setting out these errors. The other party will then have until December 20, 2024 to serve and file a written response.

[83] Any party seeking costs is to serve and file their written submissions by January 6, 2025. The other party will then have until January 20, 2025 to respond (not to make their own submissions). The submissions should be delivered to the trial coordinator’s office on the second floor of the courthouse or emailed to the trial coordinator.

[84] The next appearance will be on February 12, 2025 at 10 a.m. for an in-person settlement conference. The parties shall serve and file Settlement Conference Briefs, updated financial statements and offers to settle.

[85] The court thanks counsel for their professional presentation of this motion.

Released: December 4, 2024

Justice Stanley B. Sherr

[1] The father also made support payments to the mother prior to March 1, 2024.

[2] Section 9 of the guidelines reads as follows: Shared parenting time

9 If each spouse exercises not less than 40% of parenting time with a child over the course of a year, the amount of the child support order must be determined by taking into account (a) the amounts set out in the applicable tables for each of the spouses; (b) the increased costs of shared parenting time arrangements; and (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

[3] This was the income he used in his software analysis.

[4] The amounts generated by the SSAG are not applied unless the court first determines that the recipient is entitled to spousal support.

[5] A copy of Dr. Jacobson’s 2019 medical report was provided to the court.

[6] This is not the complete list of symptoms she listed in her report.

[7] The court did not use the shared parenting input in the software. If it had done so, it would have increased the amounts generated by the SSAG. This would have been unfair to the father, as that input would have added tax benefits to his net disposable income that he is not receiving and would have reduced the benefits that the mother is receiving. To recognize that the mother is the sole party receiving these benefits the court inputted in the software that the children are living with her. If at anytime, the father claims 50% of these benefits or credits, this calculation will need to be changed.

[8] The mother asked for retroactive spousal support in her notice of motion but did not pursue this at the hearing. If she had pursued this request, it would not have been ordered. In the circumstances of this case, it is an issue better determined by the trial judge.