Sutton v. Sutton, 2017 ONSC 3181

COURT FILE NO.: 5073/15 DATE: 2017-05-23

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

RONALD JOHN SUTTON Glenna G. McClelland, for the Applicant/Responding Party Applicant/Responding Party

• and -

MARIA PRECIOSA RAMOS DOFORNO SUTTON Robert Cunningham, for the Respondent/Moving Party Respondent/Moving Party

HEARD: September 22, 2016, at Walkerton, and on October 31, 2016, at Brampton, Ontario

Price J.

Reasons For Order

OVERVIEW

[1] Ronald and Preciosa Sutton are both 63 years old. They separated in 2010, after a 35 year marriage. By then, their three children were adults and self-sufficient.

[2] During the marriage, Mr. Sutton suffered reverses in his woodworking business. After a bankruptcy and termination of a partnership, he became a consultant for the Government of Nunavut from which employment he earned approximately $136,151.04 in 2015 plus benefits of $11,879.46. Ms. Sutton also suffered health problems during the marriage, for which she was given medical leaves of absence from her employment as a teacher and, a year after the parties’ separation, early retirement. She received income of approximately $39,000 in 2015.

[3] Since their separation, each of the parties has formed a relationship with a new partner. Mr. Sutton and his spouse now live in Ontario. Since the summer of 2011, Ms. Sutton has lived in Portugal, on a farm owned by her spouse’s elderly father, returning to Ontario several times a year to visit family.

[4] Mr. Sutton began the present proceeding in 2015, 4.5 years after the parties separated. A trial of the proceeding has yet to be scheduled.

[5] Ms. Sutton moves for interim spousal support and further financial disclosure from Mr. Sutton. The parties delivered conflicting affidavits, and did not cross-examine each other on them. Ms. Sutton asks that her motion be allowed and Mr. Sutton asks that it be dismissed.

[6] It is undisputed that Mr. Sutton’s current income is more than three times Ms. Sutton’s income. Based on an online article on retiring in Portugal, Mr. Sutton argues that the cost of living in that country is low, and that Ms. Sutton does not require financial support from him. Ms. Sutton submits that she is entitled to support from Mr. Sutton, which he is able to provide, and that she should not be disadvantaged by the fact that she is living within her reduced means.

BACKGROUND FACTS

[7] The parties married on August 16, 1975, when both were students at Waterloo University. They separated 35 years later, on October 4, 2010. They have three grown children, born in 1978, 1982, and 1990, who were 32, 28, and 20 years old, respectively, when the parties separated.

Mr. Sutton’s Means and Circumstances

[8] Ronald Sutton operated a woodworking business in Ridgetown, Ontario, from 1977 to 1980. In 1980, the building in which the business operated was destroyed by a fire, and an investigation disclosed that the fire was caused by arson. A dispute arose between Mr. Stutton’s Bank, which had made a commercial loan to the business, which Mr. Sutton had personally guaranteed, and the business’ insurer, which resulted in the Bank calling its loan and enforcing Mr. Sutton’s Guarantee. As a result, Mr. Sutton claimed bankruptcy and the Bank seized his assets.

[9] Mr. Sutton made an assignment to the Bank of his rights to the insurance proceeds. Ultimately, the Bank and the insurer settled, Mr. Sutton was discharged early from his bankruptcy, and some of his personal assets, including vehicles, tools and a boat, were returned to him.

[10] Beginning in 1979, Mr. Sutton was employed as a production manager at a woodworking business in British Columbia. Ms. Sutton and their first child moved to B.C. with him, and a second child was born in B.C. Ms. Sutton contributed to the family’s income by working as an interpreter in court and at immigration hearings.

[11] The Suttons were in B.C. for three years, until 1982. Mr. Sutton says that they returned to Ontario because Ms. Sutton’s mother, who lived in Ontario, had cancer. Ms. Sutton denies that this was the cause of their returning to Ontario. She says that Mr. Sutton quit or lost three jobs in woodworking companies in B.C., and that the family returned to Ontario because he had no prospect of further employment there. She says that her mother was diagnosed with cancer in 1978, before they moved to B.C., and did not die of the disease until 1989, seven years after their return to Ontario.

[12] Mr. Sutton became a licensed carpenter in 1981, the year before their return to Ontario. He was unable to secure employment in the Ridgetown area, and therefore became a partner in a woodworking business in 1982, with $12,000 borrowed from Ms. Sutton’s brother-in-law, Brian Anderson. The economy was poor, and the business closed in 1988. All the partners, including Mr. Sutton, lost their capital investments, and Mr. Sutton additionally lost the tools of his trade.

[13] When Mr. Sutton’s business closed in 1988, Mr. and Ms. Sutton decided to return to school to complete their educations. They were both accepted at Waterloo University, but it was necessary for one of them to work while the other attended school. Mr. Sutton found work as a supervisor at Stahle Contractors Ltd. in Waterloo, and the parties bought a home there in December 1988 with the proceeds of sale of their home in Ridgetown and help from Ms. Sutton’s brother.

[14] Mr. Sutton worked at Stahle from 1988 to 1992. By then, Ms. Sutton had obtained her degree in languages at Waterloo in 1990, completed her 7 months of teacher training at the University of Toronto in 1992, and secured full-time employment as a teacher with the Chatham Kent Separate School Board, where she had been employed part-time since September 1990, three months after their third child was born on June 4, 1990. She also continued to run the family’s corn detasseling business during the summers from 1982 to 2005.

[15] In 1992, when Ms. Sutton secured full-time employment with the School Board, Mr. Sutton left his employment at Stahle and returned to school himself, completing his B.A. degree at Waterloo University in 1993, and his M.B.A. at Wilfred Laurier University in 1994.

[16] Ms. Sutton says that from 1992, when Mr. Sutton returned to school, until 2000, six years after he graduated, Mr. Sutton obtained and quit or lost five jobs, two in Kitchener, one in Hanover, one in South Dakota, and the other in Winnipeg, Manitoba, interspersed with periods of unemployment. From 1994, when Mr. Sutton graduated, Ms. Sutton cared for the children, then aged 4 to 16, and the family’s home, and Mr. Sutton worked away from home for up to a month at a time.

[17] In 2000, Mr. Sutton formed a corporation, 200023 Ontario Inc., in which he held 51% of the shares and Ms. Sutton held 49%. In 2001, through the corporation, Mr. Sutton entered into partnership with 3 others at Stahle Contractors Ltd. to provide consulting services to woodworking businesses in Winnipeg, Kitchener, and South Dakota. The partnership lasted until 2001, when the majority partner forced a buy-out of Mr. Sutton’s interests. Litigation ensued, in which Mr. Sutton incurred legal costs of $65,000, which was later reduced to $40,000 when he had his lawyer’s accounts assessed.

[18] In 2003, Mr. Sutton’s company took over a business, More Than Lumber Contracting, which the parties’ son, Carlo, then 22, had formed in Waterloo in 2000, and Mr. Sutton changed the company name to MTL Contracting Ltd. (“MTL”). Mr. Sutton says that Ms. Sutton was a shareholder, officer, and director of MTL, and a co-signor for its two loans. Ms. Sutton asserts that she was a partner in name only, and was not actively involved in the business, other than contributing her earnings from teaching and detasseling to “keep the business afloat.”

[19] In 1995, Mr. and Ms. Sutton borrowed $85,000 and purchased a lot at Miller Lake. Mr. Sutton began building a cottage on the property in 2003, he says, with a gift of $15,000 from his father and, during construction, with mortgage financing. Ms. Sutton says that Mr. Sutton insisted on purchasing and developing the property into a 3,000 square foot house that the family could not afford, which drained their resources. Mr. Sutton moved to the Miller Lake home in 2004. Ms. Sutton continued to reside at the home in Waterloo with their youngest child, Christina, then 14 years old.

[20] In 2007, Mr. Sutton agreed to renovate a cottage property that belonged to Ms. Sutton’s brother in law, Brian Anderson, and his wife Marie, Ms. Sutton’s sister. This project ended in conflict, when Mr. Sutton required $78,000 which Mr. Anderson was unable to pay, and when Mr. Sutton was diagnosed with cancer, requiring surgery, and was advised to avoid strenuous work for at least six weeks.

[21] In 2009, the Suttons sold their home in Waterloo, according to Ms. Sutton, because they were unable to maintain both the home and the Miller Lake cottage. Ms. Sutton and Christina moved to an apartment in Waterloo, where they lived during the week while Ms. Sutton worked at the School Board, and commuted to the cottage for the weekends.

[22] Mr. Sutton says that after Ms. Sutton separated from him in October 2010, he earned no income from 2010 to 2014, and when Ms. Sutton took early retirement in 2012, he was unable to maintain the Miller Lake property, and the Bank moved under Power of Sale to have the property sold.

[23] In April 2015, Mr. Sutton secured employment under a four-year contract with the Government of Nunavut. In his financial statement sworn August 4, 2016, he states that his annual income from that employment is $136,151.04. In addition, he acknowledges receiving the following benefits:

a) Rent subsidy: $1,068.00 b) Dental and medical: 791.70 c) Pension contribution: 7,907.76 (Employer matching pension contribution) d) Northern residents allowance: 2,112.00 TOTAL: $11,879.46

[24] Mr. Sutton is now living with a partner, Katherine Rutter, a retired nurse, who receives income of $1,570 per month but, he says, does not contribute to their household expenses.

Ms. Sutton’s means and circumstances

[25] After Mr. and Ms. Sutton married in 1975, Ms. Sutton worked as a translator in court, and ran the family’s corn detasseling business during summers.

[26] After Mr. Sutton’s business failed in 1979 and he declared bankruptcy, the parties moved to British Columbia, where they lived from April 1979 to July 1982. Ms. Sutton worked as a translator in the courts and at immigration hearings in Vancouver and from mid-July to the end of August each year, returned to Ontario to run the family’s corn detasseling business.

[27] Ms. Sutton says that when Mr. Sutton lost his final position in B.C. and the family returned to Ontario in 1982, she continued running the corn detasseling business during the summers until 2005 and was employed as a part-time French teacher with the Chatham Kent Separate School Board beginning in September 1990. She was later hired a full-time teacher with that Board, beginning in 1994.

[28] Ms. Sutton says that she contributed a significant portion of her earnings from teaching and from the detasseling business to Mr. Sutton’s businesses. Additionally, she says that by 1993, she was single-handedly caring for the children. Mr. Sutton acknowledged that she made shareholder loans totaling $70,000 to MTL.

[29] While acknowledging that Mr. Sutton issued 49% of the shares of MTL to her, and named her as secretary of the business in the incorporating documents, Ms. Sutton states that she was never actively involved with the business, except for lending money to it from time to time “to keep it afloat.” She says that she had no signing authority and did not receive any money directly from the company. While she occasionally ran errands or cleaned up job sites, she says, she did not make decisions regarding the operation of the business and had no contact with its customers.

[30] Ms. Sutton says that in the latter part of the marriage, as a result of the family’s financial problems, which she attributes to Mr. Sutton’s reckless over-spending and inability to maintain steady employment, his conflict with Ms. Sutton’s brother-in-law, and his emotional abuse of her, Ms. Sutton became burned out and could no longer cope. She had difficulty sleeping, lost weight, and suffered from anxiety and panic attacks. Increasingly, she was unable to perform her job.

[31] Ms. Sutton took a medical leave of absence from teaching from September 27 to October 3, 2010. She travelled to Portugal where, at some point, she renewed an earlier acquaintance with her current partner. The Suttons’ marriage ended when Ms. Sutton returned to Canada in October 2010, although she says that she and Mr. Sutton had been living separately for several years.

[32] For a year after the parties separated, Ms. Sutton’s pay continued to be deposited directly into the parties’ joint bank account, from which both parties withdrew funds to pay their household bills, including the mortgage on the Miller Lake cottage. Ms. Sutton resumed work but took sick leave again from March 7 to 20, 2011, and from April 11 to 25, 2011. After resuming work in September 2011, she took another sick leave until November 20, 2011, and then an unpaid leave until October 2012. Her medical leaves were supported by her family doctor, and her Principal and Teachers’ Union eventually advised her to take early retirement, which she did on October 21, 2012.

[33] Since the summer of 2011, Ms. Sutton has spent most of the year in Portugal, where she lives with her partner on his 93-year-old father’s farm. Her income since 2012 has consisted of her Canada Pension Plan benefits and teacher’s pension, as follows:

2012: $19,778.51 2013: $36,843.24 2014: $38,483.16 2015: $39,142.20

[34] Ms. Sutton says that her sister, Marie Anderson, has helped her out financially since her separation from Mr. Sutton. She says that at her age, and having regard to her health problems, there is no prospect of her obtaining further employment.

The parties’ assets

[35] In 1988, the parties bought their home in Waterloo for $148,000 with the proceeds of sale of their home in Ridgetown. Mr. Sutton built an addition, the cost of which he estimates was $45,000. They sold the home in 2009 for $299,000, using the net proceeds of $90,000 to re-pay debt and buy a lot on which MTL stores equipment. That property is still owned by MTL and its value is an issue in dispute between Mr. and Ms. Sutton.

[36] Mr. Sutton states that he and Ms. Sutton and their company were sued for between $250,000 and $300,000 in various lawsuits, including an action by BMO for $100,000 on their mortgage on the Miller Lake cottage. He says that these actions “were all settled at a lower amount and paid into court.” He says that from 2015, when he secured his employment in Nunavut, until March 2016, he used 67% of his gross pay and an inheritance he received from his family to pay personal debts totaling $50,779. He says that the debt has all been re-paid, with the exception of the mortgage judgment, which amounts to approximately $221,000, including $150,000 owed to the property management company the Bank hired when it took possession of the property.

[37] Mr. Sutton says that he is repaying the mortgage judgment at the rate of $2,500 every two weeks, and says that he hopes to negotiate reduced payments. He says that the company still owns the lot which the Suttons purchased as a place to store the company’s equipment, and that Mr. and Ms. Sutton each have shareholder loans owing to them by the company.

[38] Ms. Sutton disputes Mr. Sutton’s assertions regarding their debts, the litigation, and the terms of settlement that he says he negotiated, and she demands proof.

[39] Mr. Sutton began the present proceeding by an Application issued on April 23, 2015, in which he claimed a divorce, spousal support for himself, based on the fact that he had earned no income from 2010 to 2014, and an unequal division of net family property, including Ms. Sutton’s teacher’s pension. He claimed that from 2012 to 2014, he had lived on his savings and an inheritance.

[40] Ms. Sutton notes that Mr. Sutton apparently never received Ontario Works, ODSP, or CPP disability, and that he offers no explanation for why he did not earn income from the business he operated nor why, if the business was not generating income, he did not seek employment elsewhere. She further notes that Mr. Sutton secured his four year employment contract in Nunavut at about the time he commenced the present proceeding, and that, as a result of that employment, he earns over three times the income that Ms. Sutton receives from her pension and Government benefits.

[41] The Application was served on Ms. Sutton on July 26, 2015, in Woodstock, Ontario. On November 6, 2015, Ms. Sutton delivered her Answer, in which she claims spousal support and unequal division of net family property, and makes a request for financial disclosure. Mr. Sutton delivered his Reply on November 25, 2015, and a Case Conference was held on that date by Thompson J.

[42] On September 22, 2016, Ms. Sutton moved for temporary spousal support, including retroactive support, and for financial disclosure. The parties exchanged numerous affidavits and the motion was heard on September 26 and October 31, 2016, judgment being reserved until today.

ISSUES

[43] The court must determine whether, having regard to the means and circumstances of the parties, the objectives of an interim spousal support order, the factors to be considered, and the range of spousal support set out in the Spousal Support Advisory Guidelines, Ms. Sutton is entitled to receive interim spousal support from Mr. Sutton.

[44] Putting the issue differently, the court is asked to determine whether Ms. Sutton, a 63-year-old spouse whose income in 2015 was $39,142.20, and who, for most of the year, “lives a very simple and modest life in Portugal with her new partner,” is entitled to receive spousal support from Mr. Sutton, whose income, since 2015, has been over three times hers.

[45] Mr. Sutton argues, in paragraph 4 of his factum, “…the principles should not apply, given the fact that the parties separated in October 2010, the motion is being heard in September 2016, 6 years post-separation, and there has been no spousal support paid in the meantime.”

PARTIES’ POSITIONS

[46] Ms. Sutton argues that she is entitled to interim spousal support, based on her contributions to Mr. Sutton’s businesses and career and the fact that, by caring for the family’s children and household, she enabled Mr. Sutton to expand his education, skills and experience. In her affidavit sworn March 4, 2016, she states:

111. I gave the applicant freedom. I helped free him from the constraints and obligations of parenting. He could focus on maximizing his business and career potential. He lived and worked away from the family for considerable periods during the marriage and even when he was at home, I primarily managed the children.

112. The Applicant chose not to responsibly grow and build his business(es) and career but rather to alienate colleagues, partners, and customers. He chose self-employment as “his own boss”, in service of his need to be independent, but he was temperamentally unsuited for self-employment. He cut corners in his business life. He had problems with customers. He repeatedly incurred debt, often by unnecessary purchases both personally and in his business life. He lived beyond his means, to the point where he repeatedly filed for bankruptcy and the family was compromised by his financial irresponsibility and imprudence.

113. I not only primarily managed the family at home, but worked summers while I was teaching to make extra money for the family. I contributed money from my employment to assist the Applicant in his business ventures. Members of my family assisted the Suttons financially in various ways. I assisted the Applicant in acquiring his MBA. [Emphasis added]

[47] Ms. Sutton additionally bases her entitlement to spousal support on her financial need and Mr. Sutton’s ability to pay.

[48] Mr. Sutton argues that Ms. Sutton is not entitled to interim spousal support because both parties furthered their educations during the marriage, both suffered setbacks, and that his own financial setbacks were contributed to by the unpaid work he performed for Ms. Sutton’s family. He asserts that neither he nor Ms. Sutton were advantaged or disadvantaged by the marriage, and that both maintained their employment during most of the marriage. He further argues that Ms. Sutton has no need for spousal support by reason of the modest lifestyle she has chosen to have with her current partner in Portugal.

ANALYSIS AND EVIDENCE

a) Is Ms. Sutton entitled to spousal support?

Legislative framework

[49] Both the Family Law Act and the Divorce Act confer a broad discretion on judges to make an award of periodic or lump sum spousal support, or to make an award comprising both forms of support.

[50] Sections 34(1) (a) and (b) of the Family Law Act provides:

34(1) In an application under section 33, the court may make an interim or final order, a) requiring that an amount be paid periodically, whether annually or otherwise and whether for an indefinite or limited period, or until the happening of a specified event; [and] b) requiring that a lump sum be paid or held in trust. [Emphasis added]

[51] Sections 15.2(1) and (2) of the Divorce Act provide:

15.2(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

Interim order (2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1). [Emphasis added]

[52] Both Acts set out the purposes of an order for spousal support and the factors to be taken into account. Section 15.2(6) of the Divorce Act provides:

Objectives of spousal support order (6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should: a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [Emphasis added]

[53] Section 33(8) the Family Law Act sets out the purposes of spousal support as follows:

Purposes of order for support of spouse (8) An order for the support of a spouse should, a) recognize the spouse's contribution to the relationship and the economic consequences of the relationship for the spouse; b) share the economic burden of child support equitably; c) make fair provision to assist the spouse to become able to contribute to his or her own support; and d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home). [Emphasis added]

[54] The Divorce Act sets out the factors the court is to consider in determining a claimant’s entitlement to spousal support and, if entitled, the amount. It provides:

15.2(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including a) the length of time the spouses cohabited; b) the functions performed by each spouse during cohabitation; and c) any order, agreement or arrangement relating to support of either spouse.

Spousal misconduct (5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

Jurisprudence

[55] The Supreme Court of Canada, in Moge v. Moge, in 1992, commented on the purpose of spousal support in relieving economic hardship resulting from the marriage or its breakdown. McLachlan J. stated:

… [T]he judge’s order should…grant relief from any economic hardship arising from the breakdown of the marriage. The focus here, it seems to me, is not on compensation for what the spouses have contributed to or gained from the marriage. The focus is rather post-marital need; if the breakdown of the marriage has created economic hardship for one or the other, the judge must attempt to grant relief from that hardship. [3] [Emphasis added.]

[56] The circumstances to be considered when determining the amount of spousal support, in relation to need, include the spouse’s capacity to contribute to her own support, [4] the measures available for her to become able to provide for her own support, and the length of time and cost entailed for the dependent to take those measures. [5]

[57] The determination of entitlement to spousal support does not involve only 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. [6] Entitlement can be based on compensatory, non-compensatory, or contractual grounds. [7]

Compensatory support

[58] Because marriage is a joint endeavour, spousal support orders are designed to be compensatory, to bring about an equitable sharing of the benefits and burdens of the relationship, having regard to all the circumstances, including the advantages each of the parties derived from their relationship. L’Heureux-Dubé, J. stated in Moge:

Essentially, compensatory support intends that both spouses profit from the joint venture of marriage. The question is not what the disadvantaged spouse would have achieved had he or she not entered into the marriage. Rather the question is what was that spouse’s contribution to the marriage and was the other spouse advantaged by that contribution. If so, does equity demand a sharing of any advantage gained should the benefits of an advantaged spouse be apportioned. In practical terms, the issue will generally revolve around whether one spouse has gained an advantage in his or her ability to earn income or acquire assets that should be shared for at least some period of time. [8] [Emphasis added.]

Contractual entitlement

[59] Contractual entitlement flows from the express or implied agreement between the parties to the marriage. [9] While there was no express agreement between Mr. and Ms. Sutton regarding spousal support, each had a reasonable expectation, based on the long duration of their marriage, that they would derive an equal benefit from their respective contributions to it.

Non-compensatory Support

[60] Non-compensatory support is a residual basis for ordering support “where it is fit and just to do so.” Non-compensatory support is generally based on the recipient’s need for support, and the payor’s ability to provide such support.

Interim spousal support

[61] In Robertson v. Hotte (1996), MacDougall J. set out a four-step analysis for determining whether a claimant is entitled to interim spousal support. He stated:

In reviewing the needs of the Applicant, the motions judge was advised that Ms. Hotte was not employed and was receiving government assistance and that her ability to earn income was limited as she had not been employed outside the home for a considerable period of time.

The court should not, at an interim application stage, place too much emphasis on the submission by the payor spouse of the dependant spouse’s failure to pursue self-sufficiency. It is apparent that Ms. Hotte has an obvious need and her proposed budget is a relatively modest budget. [10]

[62] The test established in Robertson has been followed by a number of cases, including by O’Connor J. in Ferreira v. Ferreira (1998), [11] and by Platana J. in Wilson v. Wilson (2002). [12]

[63] While self-sufficiency is an objective that must be considered whenever determining the appropriateness and amount of spousal support under the Divorce Act, Ms. Sutton’s failure to achieve self-sufficiency should not be given much emphasis, especially at this interim stage.

[64] In Driscoll v. Driscoll, in 2009, [13] Lemon J. cited with approval the British Columbia case of Robles v. Kuhn, also in 2009, [14] for the helpful list of principles it sets out governing interim support motions. These principles can conveniently be grouped as follows:

1. Onus and Burden of Proof: (a) Motions for interim support are summary in nature. The court will generally not conduct a detailed investigation into the merits of a case, in large part because at the stage of a motion for interim support, there is not sufficient evidence to enable the court to do so. (b) A claimant need only establish a prima facie case for relief. [15] (c) Where contested issues of fact need to be resolved, especially those connected with the threshold issue of entitlement, it becomes less advisable to order interim support.

2. Criteria for Entitlement: (a) The court on an application for interim support should not unduly emphasize any one of the statutory considerations above others; (b) That being said, the claimant’s needs and the respondent’s ability to pay often assume greater significance and the respondent’s need to achieve self-sufficiency often assumes less significance on applications for interim support than they do at trial.

3. Appropriate amount of support: (a) Interim support order should be sufficient to allow a dependent spouse money to maintain a reasonable lifestyle pending trial. (b) Interim support should allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor’s ability to pay warrants it. (c) Interim support should be within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise. [Emphasis added.]

Applying the legal principles to the facts of the present case

Compensatory Spousal Support

[65] Ms. Sutton’s marriage to Mr. Sutton, lasting 35 years, was of long duration, and produced three children for whom Ms. Sutton assumed primary responsibility, except during the 7 months when she was at teachers’ college. This resulted in an advantage to Mr. Sutton, during those years he spent earning his B.A. and M.B.A., and during the years he spent developing the managerial experience that likely helped qualify him for his current employment as a property manager in Nunavut. Ms. Sutton’s contribution to Mr. Sutton’s career resulted in an occupational disadvantage to her, owing to the interruption of her career when the parties moved to British Columbia to facilitate Mr. Sutton’s employment there.

[66] Ms. Sutton is entitled to compensation for the advantage that Mr. Sutton derived by being able to return to school and earn his B.A. and M.B.A., and by being able to manage his business with Ms. Sutton’s help, and the economic disadvantage which Ms. Sutton suffered from the marriage, even though the advantage which Mr. Sutton derived from Ms. Sutton’s efforts is undermined by the reverses he experienced in his woodworking businesses, and the impact that these had on both parties’ assets. It serves little purpose to attribute blame to either party for those reverses, and s. 15.2(5) of the Divorce Act provides that in making an interim support order, the court shall not take into consideration any misconduct of a spouse in relation to the marriage, even if it may consider the impact of such misconduct on a spouse’s need. [16]

Non-compensatory spousal support

[67] It is not realistic to expect that Ms. Sutton, at the age of 63 and in poor health, will become financially self-sufficient in the future at a standard of living approaching that which the parties enjoyed during the marriage. I find that Ms. Sutton’s current need has resulted, in part, from the following facts:

a) Ms. Sutton followed Mr. Sutton to British Columbia because his employment and her role in the marriage demanded it; b) Ms. Sutton’s role in the marriage impeded her from developing her own financial self-sufficiency and, in particular, interrupted her pensionable employment; c) Mr. Sutton failed to provide support spousal to Ms. Sutton after the parties separated; d) Ms. Sutton’s age and medical conditions would prevent her from securing gainful employment even if she resided in Ontario full time.

[68] Ms. Sutton was financially dependent on Mr. Sutton for most of the parties’ 35 year marriage, and her economic well-being reflected the vicissitudes of his business ventures. The economic disadvantage and hardship that she suffered as a result of the reverses in his fortunes was made worse by the marriage breakdown.

[69] Ms. Sutton is 63 years old. She retired from her employment as a teacher as a result of stress, anxiety and panic attacks. The evidence satisfies me, on a balance of probabilities, that, by reason of her medical conditions, Ms. Sutton is unable to secure gainful employment.

[70] The fact that Ms. Sutton’s employer granted her medical leaves of absence and, ultimately, early retirement, supports a finding that she is, in fact, disabled by the stress, anxiety and panic attacks she says she suffered in the later years of her marriage. Ms. Sutton tendered a letter from the Waterloo Catholic District School Board dated July 27, 2015, confirming her sick leave from September 27 to October 3, 2010, from March 7 to 20, 2011, from April 11 to 26, 2011, and from September to November 13, 2011.

[71] The evidentiary value of the employer’s determinations regarding Ms. Sutton’s capacity to work during those leaves of absence and for purposes of her early retirement are equivalent to those which the court has given in cases where determinations have been made by a pension authority as to a claimant’s disability.

[72] Justice Langdon, hearing a motion by a mother to vary her divorce judgment based on a reduced ability to pay in Salvatore v. Etcovitch-Holley, in 2012, found that “the award of the disability pension is prima facie evidence of disability, and that I must accept that condition as evidence of Joan’s need.” [17] Melnick J., of the B.C. Supreme Court, on a motion to vary support in Cote v. Cote, in 2014, reduced a father’s child support obligation for three years, finding that “the fact that he is now receiving a permanent disability pension from CPP does provide some fairly good evidence of his current incapacity.” [18] Bruce J., of the B.C. Court of Appeal, in Paetkau v. Paetkau, in 2009, found that “the payment of a CPP disability pension is some evidence that she [the personal injury plaintiff] has a reduced income earning capacity.” [19]

[73] The evidence Ms. Sutton has tendered from collateral witnesses supports the conclusion, based on Ms. Sutton’s own evidence and the letter from the School Board, that her health and capacity to work were affected by the stress she experienced in the latter years of the parties’ marriage. Ms. Sutton’s brother-in-law, Brian Anderson, states, in his affidavit sworn May 20, 2016:

From my observation of [Ms. Sutton] in this time period her personality had changed – she was quiet, timid, worried and obviously stressed. The accumulated stress over the years was too much and she could not manage as a teacher. She had to take early retirement. Even though she loved teaching her personal life was falling apart. [Emphasis added.]

[74] Ms. Sutton’s sister, Marie Anderson, stated, in her affidavit sworn August 19, 2017:

[Ms. Sutton] was worn out and broken by the end of the relationship, much different than what she’d been like as the oldest of the eight siblings who we all looked up to for leadership and direction throughout our youth and into adulthood.

[Ms. Sutton} was not acting like herself. She was crying uncontrollably, she was not sleeping, she would call me late at night and I would try to calm her down without success. She couldn’t function very well as a teacher, she was stressed. [Emphasis added.]

[75] Sheila Sullivan, a former teaching colleague of Ms. Sutton’s, states, in her affidavit sworn August 19, 2016:

My husband and I were often worried for her safety for these and other reasons related to her relations with Mr. Sutton. She was confused in her emotions and was having problems making good decisions. I admired her dedication to hard work but was aware that her efficiency and competence was decreasing at school. [Emphasis added]

[76] On the totality of the evidence, I find that Ms. Sutton suffered stress, anxiety and panic attacks that disabled her from continued employment in 2012. I find that, by reason of her age and compromised health, she is not capable of securing gainful employment at this time.

b) What is the appropriate amount of spousal support?

[77] The Family Law Act sets out, in s. 33(9), factors that the court should consider in determining the amount of spousal support. It provides as follows:

(9) 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 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;a (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, (vi) Repealed; (vii) 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.

(10) The obligation to provide support for a spouse exists without regard to the conduct of either spouse, but the court may in determining the amount of support have regard to a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship.

Applying the legal principles to the facts of the present case

[78] For the reasons that follow, I find that Ms. Sutton is entitled to spousal support at the high end of the Spousal Support Advisory Guidelines.

[79] Mr. Sutton states in his affidavits sworn July 29, 2016:

63. The Respondent does not reside in Canada for half the year. She resides in Portugal and enjoys a very comfortable lifestyle. She travels often to Canada.

64. Her partner operates a bed and breakfast business, a winery, a large working farm, a horseback riding business, and a restaurant. The business is advertised on the internet.

65. The Respondent is teaching English in Portugal.

[80] Mr. Sutton does not identify the source of his information regarding Ms. Sutton, other than his assertion, in reply, that Ms. Sutton told him that she taught English in Portugal. His affidavit therefore does not comply with Rules 14(18) and (19) of the Family Law Rules. Those rules provide:

(18) An affidavit for use on a motion shall, as much as possible, contain only information within the personal knowledge of the person signing the affidavit.

(19) The affidavit may also contain information that the person learned from someone else, but only if, (a) the source of the information is identified by name and the affidavit states that the person signing it believes the information to be true. [Emphasis added]

[81] Ms. Sutton replies to Mr. Sutton’s assertions as follows in her affidavit sworn August 19, 2016:

With regard to paragraph 63, I reside in Portugal, but I travel about three to four times per year to Canada. I have a very simple lifestyle, not a “very comfortable” one.

With regard to the travel to Canada I travel to see some of my grandchildren and family. About half of the time my sister Marie Anderson pays for my airplane tickets.

As I have indicated, I live with my partner. We live on a farm on which is situated an impressive but old home owned by his 93 year old father and brother, the emphasis being “old” and costly, a “white elephant”. My partner does not operate a bed-and-breakfast business – he never did own the business. He helped out with the running of a bed and breakfast but it has not been operating at all for the last 1.5 to 2 years and for since I was her before that it was never getting more than a trickle of business, about 5 to 8 people per year.

There is not a winery, a large working farm, a horseback riding business (there are two horses) or a restaurant.

The farm has some livestock but a miniscule amount of money is derived from the livestock and that is the income that my partner gets – about 3000 Euros a year. The farm is not a large “working” farm by any definition – again, the only people living on it are my partner and I and his 93 year old father.

My partner makes about 3,000 Euros a year. His father receives a pension. The house is paid for. We live very modestly. We get much of our own food – all the vegetables and fruit we eat, all the meat, rabbit, chicken, ducks and lamb and all our eggs. We don’t pay for water, we have a well. I make our own cheeses and yogurt. We get milk from the cows.

I do verily state that my financial situation is as it is stated to be in my Financial Statement on October 1, 2015. I do not have a source of income in Portugal. My income is my Teachers Pension and CPP monies.

[82] I take judicial notice of the fact that, based on current exchange rates published by the Bank of Canada, 3,000 Euros is the equivalent of $4,547.64 in Canadian currency.

[83] Ms. Sutton’s brother in law, Brian Anderson, states, in his affidavit sworn May 20, 2016:

36. Marie and I have visited [Ms. Sutton] in Portugal where she lives with her partner. They live very modestly. They grow their own vegetables in the garden which she tends. There is no bed-and-breakfast. [Ms. Sutton] is frugal with her money, as I believe she has always been.

[84] I accept Mr. Anderson’s evidence, as it is based on his personal experience.

[85] As a general rule, a dependent spouse is entitled to a lifestyle commensurate with the accustomed lifestyle or the payor’s lifestyle, subject to the spouse’s ability to pay. [20] I am not prepared to rely on the internet article which Mr. Sutton submitted to support a finding that by reason of a lower cost of living in Portugal, Ms. Sutton does not require financial support. For one thing, Ms. Sutton spends part of the year in Ontario. For another, the internet article is inadmissible as evidence as it is hearsay, is not properly sworn to, and is not supported by the affidavit of an expert in the field.

[86] The cost of living in Portugal is a disputed fact in this case, and could have a bearing on the court’s determination of Ms. Sutton’s need. As such, the usual evidentiary requirements that apply to the resolution of a factual dispute between parties should apply and were not met here. [21] When rejecting a resource book containing sociological data and information from various government and non-government organizations dealing with issues of human rights, civil liberties and corruption in government and the justice system in Kenya in Ndegwa v. Ndegwa, in 2001, Mackinnon J. stated:

The Resource Book does not contain affidavit evidence or expert reports. As such, the material cannot meet the basic requirements for evidence that can be accepted by the court in the hearing of a motion. The material is not sworn or affirmed, no deponent with opportunity for personal knowledge or observation, or with information learned from a named or identified source is identified. While the mother has presented summaries describing the various organizations from which the information is obtained, nothing is made available to the court in terms of how, by whom or from whom the material was complied. Nor is there opportunity for any cross-examination with respect to this material. The court cannot assess expertise or whether there is a proper foundation of research and knowledge made to accept the material. [22] [Emphasis added]

[87] Tremblay-Lamer J., in ITV Technologies Inc. v. WIC Television Ltd. (2003), [23] adopted a flexible approach to the admission of internet information. His decision was upheld on appeal, but the Federal Court of Appeal did not find it necessary to address the trial judge’s analysis of the admissibility of internet information. Nevertheless, the analysis has gained some approval in our court in the context of a class action. [24] Justice Tremblay-Lamer held that internet information can be admissible if it is accompanied by indicia of reliability, including, but not limited to:

• whether the information comes from an official website from a well-known organization;
• whether the information is capable of being verified;
• whether the source is disclosed so that the objectivity of the person or organization posting the material can be assessed.

[88] Justice Tremblay-Lamer held that where the threshold of "admissibility" is met, it is still up to the trier of fact to weigh and assess the information to determine what significance, if any, it has on the issues to be decided. The court concluded, at para. 27, that the evidence in that case did not meet the threshold of admissibility and that it should be struck:

Accordingly, I find that affidavit evidence, "on information and belief", including information taken from the internet, is potentially admissible in interlocutory applications, such as a class action certification application, and may be admitted "under special circumstances" where the "grounds for such information and belief" are adequately disclosed and the information is reliable. Here, the subjective basis for the reliability of the information has not been disclosed and, furthermore, there is no objective basis to believe that the various postings have any degree of reliability.

[89] The article which Mr. Sutton submitted, by Marjorie A. Cohen, is titled “How Much Money Do You Need to Retire in Portugal.” It was published on December 15, 2015, on the web site, Investopedia. Investopedia, according to the web site, is wholly owned by the Internet corporation, IAC, formed in 1999. IAC claims to be the largest financial education website in the world, with more than 20 million unique visitors and 60 million page views each month. The number of visitors to a site is not evidence of the reliability of information contained on the site. Justice Strathy, as he then was, in Williams v. Canon Canada Inc., 2011, noted:

Common sense tells us that simply because there are several million responses on Google to “Elvis is alive” or “I have been abducted by aliens” does not mean that these statements are true, either as individual observations or as collective proof of the facts. [25]

[90] The information in Ms. Cohen’s article cannot be verified. The site states that Ms. Cohen “has written seven books on budget travel, family travel and work and study abroad and scores of articles and posts on real estate, personal finance, food, travel and New York history.” The details of those books, and their years of publication, are not provided. Books by an author named Marjorie A. Cohen were published in the 1970’s and 1980’s, with the exception of one, published in 2013, which concerns vacations for children. I make no findings regarding Ms. Cohen’s publications, other than to note that the publications are not identified on the Investopedia site, with the result that there is no way of determining whether they are scholarly, peer-reviewed, current or otherwise reliable.

[91] The article quotes Kathleen Peddicord, whom Ms. Cohen describes as the founder and publisher of Live and Invest Overseas. Again, the article provides no particulars of Ms. Peddicord’s knowledge and qualifications. Ms. Cohen additionally quotes Susan Shay, whose occupation and source of knowledge or expertise she does not identify, and Greg Boegner, whom she says is the founder of a lifestyle blog. At best, these are sources of anecdotal information which is unverifiable and possibly out of date.

[92] Mr. Sutton’s reliance on the article is, for the most part, triple-hearsay. He does not state that he believes the information to be true, as required Rule 14(19). Neither the objectivity of AIC, of Ms. Cohen and her sources, nor the reliability of their information can be verified. The article is therefore inadmissible.

[93] In Cassidy v. McNeil (2010), the Court of Appeal for Ontario observed that, “the formulae for spousal support are not based on a budget, but on ‘income sharing as a method for determining the amount of spousal support’”. [26] [Emphasis added.]

[94] Based on the factors set out in section 33(9), above, I consider the following facts to be especially material in determining the amount of spousal support that Ms. Sutton is entitled to receive:

a) Ms. Sutton has no significant assets. In her Financial Statement sworn October 1, 2015, she states that she owns no real property, no household items or vehicles, has $76.34 in bank accounts, savings, securities and pensions (other than her Teacher’s Pension, which is in pay), and no business interests. She claims debts of $33,425.26. b) Mr. Sutton’s assets are difficult to ascertain, owing to the fact that he says that MTL is in the process of being wound up. He has provided no information regarding the value of the lot that the parties purchased for storage of the company’s equipment. c) Mr. Sutton states that he is in the process of negotiating a settlement of the debt that he says is still owing, being the mortgage judgment arising from the Miller Lake property. In his Financial Statement sworn August 4, 2016, Mr. Sutton claims to own household items and vehicles worth $10,900 and $17,068.13 in bank accounts, securities and pensions. He assigns no value to his interest in MTL, although he says the company owes him a shareholder loan of $263,237.26 and, as noted above, he has not assigned a value to the property lot on which the company’s equipment was stored. He says that he is owed $48,608.58 by Ms. Sutton, and says he owes $146,721, which includes: i) His 50%, amounting to $111,000 of the joint mortgage judgment debt arising from the cottage property; ii) $10,425.26, being his 50% of the parties’ joint line of credit, which was also secured by the cottage property; iii) $25,296.02 of debts of MTL Construction Ltd., although he does not assert that he personally guaranteed those debts; iv) Undetermined notional tax on RRSP’s, which RRSP’s he says amounted to $10,930.79 on the date of the Statement. d) Ms. Sutton is unable to contribute to her own support beyond the income she derives from her teacher’s pension and Government benefits, amounting in total to approximately $39,000 per year. e) Mr. Sutton earns current income of approximately $135,000 per year. f) Ms. Sutton is 63 years old. I find, for the reasons stated above, that her medical condition does not permit her to be gainfully employed. g) Since April 2015, Mr. Sutton has been employed under a four-year contract with the Government of Nunavut. His income, as stated in his financial statement sworn August 4, 2016, amounts to $136,151.04 plus benefits of $11,879.46. I find that he is capable of contributing to Ms. Sutton’s support. h) Mr. Sutton is re-married to a retired nurse, who receives income of $1,570 per month. There is no basis for a finding that Mr. Sutton’s obligations to Ms. Rutter deprive him of the ability to provide spousal support to Ms. Sutton, or significantly lessen his ability to do so. i) Mr. and Ms. Sutton resided together for 35 years. As indicated above, I find that Ms. Sutton assumed primary care of the parties’ three children and of the parties’ household and contributed at least $70,000 to MTL.

Application of the Spousal Support Advisory Guidelines

[95] Both the Family Law Act [27] and the Divorce Act [28] direct the court to base its determination as to the amount of spousal support on the parties’ respective incomes. The court has held that the Spousal Support Advisory Guidelines [29] (“Spousal Support Guidelines”), while advisory in nature, are a useful starting point when determining the appropriate amount of spousal support. [30] The court has further held that once it finds a spouse to be entitled to spousal support, it must take the Spousal Support Guidelines into account when determining the amount. [31]

[96] As noted above, Mr. Sutton secured employment in April 2015 under a four year contract with the Government of Nunavut. In his financial statement sworn August 4, 2016, he states that his income from that employment is $136,151.04. Of this amount, $889.20 per month, or $10,670.40 on an annual basis, consisted of non-recurrent withdrawals from an R.R.S.P. I do not include these withdrawals in income, based on the analysis I gave in McConnell v. McConnell (2015), which I adopt for purposes of these reasons. [32] Accordingly, I find that his base income, including allowances, with the exception of the Northern Residents Allowance, was $125,480.64.

[97] In addition, Mr. Sutton acknowledges that he receives the following benefits:

a) Rent subsidy: $1,068.00 b) Dental and medical: 791.70 c) Pension contribution: 7,907.76 (Employer matching pension contribution) d) Northern residents allowance: 2,112.00 TOTAL: $11,879.46

[98] I have considered whether Mr. Sutton’s living allowance and Northern Living Allowance should be included in his income. For the reasons that follow, I conclude that they should be included, with the exception of $1,000 of his Northern resident deduction; although some adjustment is required to reflect the greater expenses which Mr. Sutton reports as attributable to his employment in the North.

[99] Courts in British Columbia, Alberta, and Saskatchewan have considered whether to impute income to payors for non-taxable “living-out” and travel allowances received from employers. [33] The B.C. Supreme Court, in Webster v. Webster (2014), reviewed these decisions and set out the principles derived from them as follows:

I take the following principles from the authorities: a) generally, a living-out allowance paid for the recovery of work-related travel and living expenses will not be treated as income under the Guidelines; b) living-out allowances are intended to compensate the recipient spouse for the extra costs associated with working away from home; c) In all the cases where courts have excluded living-out allowances from the recipient spouse's Guideline income, there has been some evidence that the recipient actually incurred extra costs associated with working away from home, although the recipient was not required to account for the whole amount of the allowance; and d) under s. 19(1) of the Guidelines, the court has a broad discretion to impute such amount of income to a spouse as it considers appropriate in the circumstances.

The circumstances in which the court may impute income to a spouse specifically enumerated in s. 19 of the Guidelines are non-exhaustive: Nielsen v. Nielsen, 2007 BCCA 604. A court may, in an appropriate case, determine whether a living allowance, or some part of it, should be added back to a spouse's income. [34] [Emphasis added]

[100] The court includes in the payor spouse’s income, for support purposes, that portion of a “living allowance” or “relocation allowance” that exceeds actual expenses incurred. [35] In the case of a non-taxable allowance, the court may decline to gross-up that portion of the amount received which reflected actual expenses incurred by the payor spouse. Wein J., in Scurci v. Scurci (2013), stated:

In most cases dealing with the issue of grossing up of income on the basis of a non-taxable allowance, the issue has been determined at trial. In those circumstances, more information is available concerning the actual use of the allowance money so that the added benefit if any can be determined. In most cases, the money is a reimbursement for actual costs such as the maintenance of a second home close to work, a living allowance for more expensive costs of living in a particular area, or an offset of extra driving required to return home. In some cases, the legitimate additional expenses were determined to be recovered by not grossing up the pay for income taxes. The cases have been recently reviewed in the decision in Arnott v. Arnott, 2012 ONSC 1822, at paragraphs 35 to 43. [36] [Emphasis added.]

[101] Mr. Sutton, in his Financial Statement sworn August 4, 2016, states that he receives a rent subsidy of $1,068 per year. He states that his rent, “net of subsidy in addition to northern allowance,” is $666 per month and that he incurs $419.10 additional housing expenses, as follows:

$28.50 for electricity $59.12 for telephone $57.70 for emergency satellite locator $161.44 for cable $84.00 for internet $28.34 property insurance for a storage facility TOTAL: $419.10

[102] The enumerated expenses are equivalent to the monthly housing expenses I would expect for an individual residing in southwestern Ontario. I am therefore not including Mr. Sutton’s rent subsidy of $1,068 in his income. I do, however, include the employer’s matching contribution of $7,907.76 to Mr. Sutton’s pension. This increases his income to $133,388.40. I deduct from his total income the amount of $300 per month, or $3,600 on an annual basis, which Mr. Sutton reports as an expense for airline travel to Nunavut. I make no deduction for a premium on the cost of groceries, which Mr. Sutton reports at $1,331 per month, as he has not provided the particulars of how this amount is derived or what portion of it represents the cost of groceries which he shares with Ms. Rutter. Deducting the $3,600 from his total income of $133,388.40, I impute an annual income of $129,788.40 to Mr. Sutton.

[103] Based on Mr. Sutton’s income of $129,788.40 and Ms. Sutton’s income of $39,142, the range of spousal support suggested by the Spousal Support Advisory Guidelines is from $2,833 to $3,728, with a mid-point of $3,305 per month.

[104] L’Heureux-Dubé J. stated in Moge: “The longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution.” [37] Although spousal support, which focuses on equitable sharing, does not guarantee to either party the standard of living enjoyed during the marriage, this standard is still relevant to support entitlement. [38] Furthermore, great disparities that would result in the spouses’ respective standards of living in the absence of support are often a revealing indication of the economic disadvantages inherent in the role that one of the parties assumed during the marriage. Such a disparity has resulted between the incomes of Mr. and Ms. Sutton following their separation. Based on the parties’ long-term marriage, the primary responsibility Ms. Sutton assumed for the parties’ three children and household during the marriage, and the lack of assets which the parties were left with at the end of their marriage, I find that support at the upper end of the range is appropriate. Mr. Sutton will therefore be required to pay spousal support to Ms. Sutton in the amount of $3,728 per month.

Claim for retroactive spousal support

[105] In Kerr v. Baranow (2011), the Supreme Court emphasized that when considering the factors relevant to determinations of support when support is sought in relation to a period predating the court order, the exercise of judicial discretion requires flexibility and a holistic view of each case on its merits. [39]

[106] As with retroactive child support, other relevant considerations include the conduct of the payor, the reason for the delay in seeking support on the part of the recipient spouse and any hardship on the payor spouse occasioned by the award. In Reis v. Bucholtz (2010), the B.C. Court of Appeal considered the principles and analysis in D.B.S. v. S.R.G. (2006) with respect to retroactive child support that are applicable to claims for retroactive spousal support. [40] The factors to consider are:

1. Reasonable excuse for why support was not sought earlier;
2. Conduct of the payor;
3. Circumstances of the child; and
4. Hardship occasioned by a retroactive award.

[107] In the present case, it is appropriate to begin the period of interim spousal support on October 1, 2015, when Ms. Sutton delivered her Answer, in which she first made a claim for spousal support. [41] Mr. Sutton secured his current employment in April 2015, and was capable of providing spousal support from May onward. He was aware of her claim on October 1, 2015.

[108] The conflicting affidavits, Mr. Sutton’s late financial disclosure, and the parties’ failure to cross-examine each other on their affidavits, leave the court with an inadequate evidentiary record on which to base an order for spousal support pre-dating the delivery of Ms. Sutton’s Answer.

Mr. Sutton’s proposal to that his debt re-payments be deducted from support

[109] The court has, in appropriate circumstances, lessened a payor spouse’s spousal support payments where his ability to pay has been diminished by his assumption of the parties’ joint debt obligations. Justice Hennessy made such a reduction in Stafford v. Stafford (2013), on the ground of undue hardship, where the payor spouse had made a consumer proposal and the court ordered him to pay retroactive support. Justice Gordon later restored the recipient spouse’s support after the joint debts had been paid. He stated:

The Respondent is of the view that his assumption of the joint marital debt alleviates his obligation to pay spousal support. He says the Applicant forfeited her entitlement to support when the temporary order of Justice Hennessy was made allowing him to make payment of the joint debts in lieu of spousal support. I disagree. The order of Justice Hennessy, made on a temporary basis to reflect the situation of the parties at that time, recognized that the Respondent’s ability to pay spousal support was lessened as a result of his assumption of the joint debts. Once those debts were retired, or in the event the Respondent received an asset of corresponding value to offset those debts, spousal support would be at issue once again.

Both of those events have taken place. The joint debts from the marriage are no longer outstanding, and the Respondent will retain a portion of the Applicant’s entitlement to his pension sufficient to offset the debt he assumed. It would be patently unfair to deprive her of support in these circumstances. [42]

[110] In Wilson v. Bedard (2016), Henderson J. declined to reduce the recipient spouse’s interim spousal support by a portion of the interest payments being made by the payor spouse. Justice Henderson stated:

With respect to the debt payment, the respondent cited two cases of Dunn v. Dunn, 2014 ONSC 7277 and Sartain v. McCabe, 2015 ONSC 2198. Both are distinguishable in that they are final decisions after the court has been able to determine all the facts after a full trial.

Section 12.2 of the SSAG discourages the deduction of debt payments from spousal support awards. The debt is usually associated with an asset. Where assets exceed debt, generally there is no hardship visited upon the payer of the debt.

The applicant urged me, and I accept, that it is best to address debt payments in the context of a final solution …. [43] [Emphasis added.]

[111] In Monger v. Monger (1994), Cusinato J. declined to make an order at trial directing that a portion of spousal support be applied toward reduction of the parties’ joint debt. In coming to this decision, Cusinato J. noted that Kennedy J. and Higgins J. had made interim orders directing that a portion of interim spousal support be applied in reduction of the parties’ joint obligations. Justice Cusinato then continued, stating:

The intent of each of these previous orders was to provide that the payments which were redirected from support in reduction of family debts incurred prior to separation were nonetheless to be considered support. It was believed these could be deducted by the defendant pursuant to s. 56.1 and 60.1 of the Income Tax Act of Canada. Unfortunately, this was not to transpire. The Department of National Revenue at present has refused to recognize any debt repayment as support.

With the tax authorities taking a different view as to the defendants’ spousal support deductions, without an appeal to such ruling, this may create a reassessment for the husband.

If reassessment occurs, this will have a bearing on the available cash flow to the defendant at some time in the future. While Mr. Hainsworth, for the defence, has suggested that this probability should have a direct effect on my consideration of spousal support, I conclude it is premature to direct my mind to those considerations when the exact consequences are unknown. [44]

[112] Mr. Sutton’s incomplete disclosure, combined with his assertion, in his affidavit, that that he was in the process of negotiating a reduction of his debt payments, leaves me in some doubt as to the extent of the debt and of Mr. Sutton’s ongoing debt repayments. Additionally, there is no evidence before me as to the potential tax consequences of an order reducing interim support by a portion of the debt repayments that Mr. Sutton is making. In these circumstances, it is appropriate to defer a determination as to whether there should be a set-off of Ms. Sutton’s obligation in relation to the debt repayments against Mr. Sutton’s obligation to pay her spousal support until more complete disclosure is provided.

c) What further financial disclosure should Mr. Sutton be required to provide at this time?

[113] Ms. Sutton claimed additional financial support from Mr. Sutton in her Notice of Motion, served on June 1, 2016. Mr. Sutton produced some of the financial disclosure requested in his affidavit sworn July 29, 2016 and in his Financial Statement sworn August 4, 2016.

[114] Mr. Sutton is required to produce the records relating to the debts he claims in his Financial Statement. At page 5 of the Financial Statement, Mr. Sutton sets out his debt, including a judgment on the Miller Lake cottage. He seeks an equalization payment based on Ms. Sutton’s assets, principally her pension, and it is in his interest to value the cottage property at a high amount. He attributes a value of $262,500 to his 50% interest in the cottage, and has produced an appraisal of the property by the Municipal Property Assessment Corporation (MPAC). Ms. Sutton seeks the basis for Mr. Sutton’s valuation of the property, as the value he asserts does not correspond to the MPAC assessment.

[115] In Mr. Sutton’s affidavit sworn July 29, 2016, he discusses the Bank’s enforcement of its remedies under the mortgage on the Miller Lake property. He attaches a prospective agreement on an interest rate, one of the conditions of which was that he obtain an appraisal. Ms. Sutton is asking whether such an appraisal was ever obtained. She is entitled to an unequivocal answer to that question.

[116] Mr. Sutton has disclosed that the Bank obtained a writ of possession for the Miller Lake property in 2013. It was Mr. Sutton who dealt with the Bank in its action on the mortgage. Ms. Sutton seeks the records in relation to the Bank’s sale of the property, and is entitled to those records to the extent that Mr. Sutton is in possession, power or control of them, or an explanation if he once was, but no longer is in possession of them.

[117] Ms. Sutton requires the records substantiating the debts that Mr. Sutton claims existed on the date of separation, and substantiating the payment of them. Mr. Sutton has not produced these records. In his Financial Statement, for example, he has claimed a debt in the amount of $5,308 to Home Depot on the date of separation. At tab 16 of his Disclosure brief, he provides only three post-separation receipts from Home Depot from 2011. Similarly, the invoice he produced from Sparling Propane is from March 2013. Many of the receipts he produced for Peninsula Timber Mart are also from after the date of separation, and do not substantiate the amount claimed as a personal debt of Mr. Sutton.

[118] Mr. Sutton states that he has produced the invoices that are in his possession. However, he is under an obligation to obtain the records that are responsive to Ms. Sutton’s request from his creditors and to produce them to Ms. Sutton. If he is unable to obtain them, he must provide information that substantiates that he made his best effort to obtain them, and must account for how he arrived at the amounts he claims for the debts on the date of separation.

[119] Mr. Sutton claims a debt to the Portuguese Club and produced and invoice dated August 28, 2010, in the amount of $17,512.74. He later stated that he reimbursed his daughter this amount in accordance with an agreement the parties had made to do so. He has not documented this agreement, or provided particulars of it, nor produced evidence that the parties’ daughter paid the invoice, or that he reimbursed her. This further disclosure is required.

[120] Mr. Sutton must provide documentation for the corporate assets and debts of MTL Contracting Inc., for the valuation of the business, and for the building lot that the parties purchased and how that lot has been accounted for in the valuation of the business. Mr. Sutton states, at paragraph 49 of his affidavit, that he is in possession of the corporate bank statements from October 1, 2009, which are voluminous, and that Ms. Sutton can attend in Nunavut to inspect them. This is not a satisfactory response to Ms. Sutton’s request. He must produce these records to Ms. Sutton’s lawyer in the customary manner.

d) What costs are payable

[121] Without the benefit of argument on costs, but based on the fact that at the hearing, Ms. Sutton stated that her costs of the motion had been $7,500 on a full indemnity scale, with a minimal amount for disbursements, and the fact that she has been substantially successful in her motion, I would be inclined to fix her costs at $4,500 (60%) on a partial indemnity scale, plus H.S.T. However, no Costs Outlines were filed at the motion, and no argument on costs, or evidence concerning Offers to Settle. Accordingly, if the parties are unable to agree on costs, they may submit written argument, not to exceed 4 pages, and a Costs Outline, by June 10, 2017.

CONCLUSION AND ORDER

[122] For the foregoing reasons, it is ordered that:

1. Mr. Sutton shall pay to Ms. Sutton, beginning October 1, 2015, and continuing on the 1st of every month thereafter, interim spousal support in the amount of $3,728 per month, based on income of $129,788.40 imputed to him for 2015, and based on Ms. Sutton’s income of $39,142 for that year.

2. Mr. Sutton shall provide to Ms. Sutton, by July 31, 2017, the following: (a) All documents relating to the sale of the Miller Lake property under Power of Sale by the Bank of Montreal; (b) All documents relating to the value of the Miller Lake property on October 4, 2010, and relating to the value which Mr. Sutton ascribes to that property in his Financial Statement sworn August 4, 2016, including all appraisals he obtained or received. (c) All documentation in his possession, power, or control relating to the following debts set out at Part 5 of his Financial Statement sworn August 4, 2016: a. Bank of Montreal debt relating to the mortgage of the Miller Lake property and the line of credit secured by that property; b. The debt to Home Depot; c. The Mosaic Master Card; d. Sparling Propane; e. Peninsula Timber Mart; and f. Portuguese Club. (d) Information and documentation for his payment of the debts set out in Part 5 of his Financial Statement sworn August 4, 2016, including the following particulars: a. When the debt was paid; b. The amount that was paid; c. Copies of the cheques of other instruments used to pay the debts and/or receipts for payment and/or written confirmation from the creditors that payment has been made. d. The source of funds used to pay the debts. e. The current status of the debt, the negotiations and correspondence that resulted in the amount of debt-repayment, and the re-payments that are currently being made. (e) A listing and valuation of the assets and debts of MTL Contracting Inc. (f) The bank and credit card statements of MTL Contracting Inc. from October 1, 2009, to the present.

3. If Mr. Sutton does not produce a document required by paragraph 2 by July 31, 2017, he shall, by that date, produce an affidavit, sworn by him, setting out the following: (a) Whether the document ever existed and whether it was ever in his possession, power, or control; (b) If the document did exist but no longer does, or if it was once, and no longer is, in his possession, when it ceased to be, and under what circumstances, and the name and agency who he believes is in possession of it now, including the contact information of the person and agency; (c) The requests in writing that he shall have made for the document, and the responses he received; (d) The reasons the document was not produced. Additionally, Mr. Sutton shall, within 7 days of receipt, sign and return a Direction to the person and/or agency believed to be in possession of the document, directing that person and/or agency to produce it, at Mr. Sutton’s expense, directly to Ms. Sutton’s lawyer. Compliance with this paragraph shall not, necessarily, constitute compliance with paragraph 2 of this Order but, rather, imposes an additional obligation on Mr. Sutton.

4. Following the production required by para. 2, Ms. Sutton shall, by August 15, 2017, deliver a Request for Information in Form 20 setting out any additional information and documents that she requires. That Request shall be complied with by August 31, 2017. After that date, the parties have leave to conduct questioning, if they deem it necessary. If Ms. Sutton requires Mr. Sutton to attend for questioning, he shall do so at his own expense.

5. After August 31, 2017, if Mr. Sutton deems it appropriate and provided he has made full financial disclosure required by this Order, he may move for a variation of his interim spousal support to reduce such support by up to 50% of the amount he currently pays toward the parties’ joint debt obligations.

6. If the parties are unable to agree on the costs of the motion, they may submit written argument, not to exceed 4 pages, and a Costs Outline, by June 10, 2017.

Price J.

Released: May 23, 2017

COURT FILE NO.: 5073/15 DATE: 2017-05-23

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: RONALD JOHN SUTTON Applicant/Responding Party

• and – MARIA PRECIOSA RAMOS DOFORNO SUTTON Respondent/Moving Party REASONS FOR ORDER Price J.

Released: May 23, 2017

[1] Family Law Act, R.S.O. 1990, c. F.3.

[2] Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.).

[3] Moge v. Moge, [1992] 3 S.C.R. 813.

[4] Family Law Act, s. 33(9)(c).

[5] Family Law Act, s. 33(9)(g).

[6] Rioux v. Rioux, 2009 ONCA 569, [2009] 97 O.R. (3d) 102 (Ont. C.A.).

[7] Bracklow v. Bracklow, [1999] 1 S.C.R. 420.

[8] Moge v. Moge, at para. 45.

[9] See Bracklow v. Bracklow.

[10] Robertson v. Hotte (1996), 1996 ONSC 8083, 21 R.F.L. (4th) 452, at paras. 18-19 (Ont. Ct. J. (Gen. Div.)).

[11] Ferreira v. Ferreira (1998), 41 R.F.L. (4th) 101, at para. 9 (Ont. Ct. J. (Gen. Div.)).

[12] Wilson v. Wilson (2002), 116 A.C.W.S. (3d) 567, at para. 15 (Ont. Sup. Ct.).

[13] Driscoll v. Driscoll, 2009 ONSC 66373.

[14] Robles v. Kuhn, 2009 BCSC 1163.

[15] Gibson v. Gibson, 2009 ONSC 55342, at para. 13, citing McLeod and Mamo, Annual Review of Family Law, 2008, (Toronto: Thomson Carswell 2008), at p. 421.

[16] Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920, at paras. 2, 21, and 23.

[17] Salvatore v. Etcovitch-Holley, 2012 ONSC 3996, at para.

[18] Cote v. Cote, 2014 BCSC 581, para. 8

[19] Paetkau v. Paetkau, 2009 BCSC 761, para. 46

[20] Moge, supra.

[21] Ndegwa v. Ndegwa, 2001 ONSC 28132, at para. 20

[22] Ndegwa, supra at para. 21.

[23] ITV Technologies Inc. v. WIC Television Ltd., 2003 FC 1056, aff’d. 2005 FCA 96.

[24] Berkovits v. Canon, 2010 ONSC 3952, per Strathy J., as he then was, at paras. 8 to 10, and Williams v. Canon Canada Inc., 2011 ONSC 6571, per Strathy J., as he then was, at paras. 95 to 103.

[25] Williams v. Canon Canada Inc., 2011 ONSC 6571, per Strathy J., as he then was, at para. 101.

[26] Cassidy v. McNeil, 2010 ONCA 218 at para. 68.

[27] Family Law Act, s. 31(1).

[28] Divorce Act, s. 15.1(3).

[29] Spousal Support Advisory Guidelines, (Ottawa: Department of Justice, 2008), by Carol J. Rogerson and D.A. Rollie Thompson.

[30] Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241.

[31] Gagne v. Gagne, 2011 ONCA 188, at para. 9.

[32] McConnell v. McConnell, 2015 ONSC 2243, at paras. 92-103.

[33] Calver v. Calver, 2014 ABCA 63; Briggerman v. Briggerman, 2000 BCSC 900; Paytner v. Sackville, [1998] S.J. No. 56 (Sask. Q.B.).

[34] Webster v. Webster, 2014 BCSC 730, at paras. 37-38.

[35] Walsh v. Walsh, 2008 ONSC 586, per D.L. Corbett J., at para. 27; Tughan v. Tughan, 2003 ONSC 2355, per Gordon J., at para. 23.

[36] Scurci v. Scurci, 2013 ONSC 73640, citing Wein J. endorsement May 27, 2013, at paras. 6-8.

[37] Moge v. Moge, supra, citing Rogerson, “Judicial Interpretation of the Spousal and Child Support Provisions of the Divorce Act, 1985 (Part I),” at pp. 174-75 (p. 870).

[38] Mullin v. Mullin (1991), 1991 PE SCAD 12956, 37 R.F.L. (3d) 142; Linton v. Linton (1990), 1990 ONCA 2597, 1 O.R. (3d) 1 (C.A.) at paras. 27-28.

[39] Kerr v. Baranow, 2011 SCC 10.

[40] Reis v. Bucholtz, 2010 BCCA 115, at para. 66; D.B.S. v. S.R.G., 2006 SCC 37.

[41] Kerr, supra, at paras. 200-220.

[42] Stafford v. Stafford, 2013 ONSC 2393, at paras. 16 and 17.

[43] Wilson v. Bedard, 2016 ONSC 2653, at paras. 29-30.

[44] Monger v. Monger, 1994 ONSC 7450, paras. 17-19.