Court File and Parties
COURT FILE NO.: FC-18-553 DATE: 2019-08-22 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Rachel Savidge Dunleavy, Applicant – and – Paul Comeau, Respondent
Counsel: Ms. Jane O’Neil, for the Applicant Ms. Whitney Donnelly, for the Respondent
HEARD: July 9 and 30, 2019 (at Ottawa)
Endorsement
Shelston J.
1The applicant’s notice of motion seeks a temporary order requiring the respondent to pay table child support, section 7 expenses, spousal support of $6,000 per month, a lump sum partial payment towards retroactive spousal support of $22,500, an advance on the equalization payment in the amount of approximately $55,000 (to be effected by transferring the sum to a registered retirement savings plan, and designating the applicant as the irrevocable beneficiary of the full amount of his life insurance policies), and financial disclosure.
2The respondent’s position is that he is prepared to pay $1,104 per month in spousal support but that all other claims for relief should be dismissed.
Background
3The applicant is 42 years of age and is currently in Edmonton, Alberta pursuing an education course. The applicant had two children with Mr. Daniel Legere, namely Jade, born in 1994, and Naomi, born in 1999. The youngest child, Naomi, is a subject of this proceeding.
4The applicant and Mr. Legere were granted joint custody of the children, with the primary residence being with the applicant, by order of the Supreme Court of Nova Scotia dated October 16, 2009. Further, Mr. Legere was required to pay $500 per month as child support for both children.
5The respondent is 45 years of age and is an officer in the Canadian Armed Forces. At the time of separation, the respondent was based in Kingston, but as of late July 2018, he was offered a new position in California, where he is currently working.
6The parties started living together on May 10, 2010, married on May 26, 2012, and separated on November 16, 2017.
7The applicant commenced this proceeding on March 20, 2018. The parties attended a case conference on June 29, 2018, where they consented to disclosure regarding finances and the applicant’s medical condition.
8Commencing January 1, 2018, the respondent paid to the applicant spousal support of $1,282 per month. As of July 2018, the respondent increased the monthly spousal support to $1,500 per month. As of July 1, 2019, the respondent is paying $1,500 per month in spousal support.
9The parties attended court on July 9, 2019 to argue this motion, but the matter was adjourned because insufficient time had been scheduled. However, on that date, the parties agreed to the following order:
(a) the respondent shall transfer the full amount of his RRSP funds held with Fundex Investments in the approximate amount of $54,324 to the applicant’s RRSP at RBC pursuant to s. 146(16) of the Income Tax Act. The respondent shall also complete Form T-2020 and deliver it immediately to the applicant to effect the rollover; (b) the respondent shall make a cash payment amount of $5,000 to the applicant by way of Interac email Transfer; (c) the respondent confirms that the RRSPs noted above are not locked-in and are available now for the applicant to transfer to other RRSP assets or collapse. The respondent also confirms that the applicant is not liable for any commissions or other charges on the transfer or collapse of these RRSPs except for her own income tax and any fees required for her own financial institution; (d) the payments made pursuant to these Minutes of Settlement are without prejudice to a further equalization payment being made by the respondent when all issues are finalized; and (e) on a temporary and without prejudice basis: (i) commencing on the first day of June 2019 and each month thereafter until further written agreement or court order, the respondent shall pay to the applicant interim spousal support in the amount of $1,500 per month, to be paid in two instalments of $750. The respondent shall deduct these payments from his taxable income and the applicant shall include them in her taxable income; and (ii) from January 1, 2018 to June 30, 2018, the respondent paid spousal support to the applicant in the amount of $1,282 on a monthly basis. Since July 1, 2018, the respondent has paid spousal support to the applicant in the amount of $1,500 on a monthly basis. These payments are deemed to been paid and received under this agreement and subsections 56.1(3) and 60.1(3) of the Income Tax Act. The respondent shall deduct these payments from his taxable income and the applicant shall include them in her taxable income.
Issues for this motion
10At the beginning of her submissions, counsel for the applicant advised that her client was withdrawing her claim for lump-sum, retroactive spousal support payment from the respondent.
11The issues for this motion are as follows:
(a) Does the respondent have an obligation to pay child support to his non-biological child? If so, in what amount? (b) What is the income of the parties? (c) What quantum of spousal support should be paid by the respondent to the applicant? (d) What is the amount due in child support? (e) Should the respondent be required to designate the applicant as the revocable beneficiary of all his life insurance policies? (f) Costs.
Does the respondent have a legal obligation to pay child support to Naomi? If so, in what amount?
12Naomi is 20 years of age and will start a four-year program in psycho-linguistics at the University of Ottawa as of September 2019. She studied one year of English at Carleton University before making the switch to her current program.
13Since separation, the respondent has not paid any child support but paid $8,000 towards her first-year university expenses.
14Naomi is currently receiving $300 a month from her biological father, who also pays for her to travel to visit him in Nova Scotia.
15Currently, Naomi is living with a roommate and sharing expenses. The applicant has provided a budget of her anticipated expenses.
16The preliminary issue is whether the respondent has an obligation to pay child support for Naomi.
Legislative and jurisprudential framework
17Section 15.1 of the Divorce Act, R.S.C. 1985, c. 3 (2d. Supp.) provides that a court of competent jurisdiction may, on application of either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.
18Section 2(1)(b) of the Divorce Act defines a “child of the marriage” as a child of two spouses or former spouses, who, at the material time:
(a) is under the age of majority and who is not withdrawn from their charge; or (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessities of life.
19Section 2(2) of the Divorce Act provides that, for the purposes of the legislative scheme, “child of the marriage” in subsection (1) means a child of two spouses or former spouses and includes:
(a) any child for whom both stand in the place of parents; and (b) any child for whom one is the parent and for whom the other stands in the place of a parent.
20Section 3(2) of the Federal Child Support Guidelines, SOR/97-175 (the “Guidelines”), provides that, unless otherwise provided under these Guidelines, when a child to whom a child support order relates is the age of majority or over, the amount of the child support order is:
(a) the amount determined by applying these guidelines as if the child were under the age of majority; or (b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.
21Section 5 of the Guidelines provides that, where the spouse against whom a child support order is sought stands in the place of a parent for a child, the amount of a child support order is, regarding that spouse, such amount as the court considers appropriate having regard to these Guidelines and any other parental duty to support the child.
22To succeed in obtaining an order for child support on a temporary basis from a stepparent where the allegation is that that parent “stood in the place of a parent,” the moving party has the onus to provide evidence of a prima facie entitlement to such support: see Melbrancke v. Proctor, 2016 ONSC 1788.
23Further, the determination on an interim motion is not fixed and does not bind the trial judge: see Mignella v. Federico, 2012 ONSC 5696.
24The leading case regarding whether a party stands in loco parentis is Chartier v. Chartier, 1999 SCC 707, [1999] 1 S.C.R 242, where Bastarache J. stated at para. 39:
Whether a person stands in the place of a parent must take into account all factors relevant to that determination, viewed objectively. What must be determined is the nature of the relationship. The Divorce Act makes no mention of formal expressions of intent. The focus on voluntariness and intention in Carignan was dependant on the common law approach discussed earlier. It was wrong. The court must determine the nature of the relationship by looking at a number of factors, among which is intention. Intention will not only be expressed formally. The court must also infer intention from actions, and take into consideration that even expressed intentions may sometimes change. The actual fact of forming a new family is a key factor in drawing an inference that the step-parent treats the child as a member of his or her family, i.e., a child of the marriage. The relevant factors in defining the parental relationship include, but are not limited to, whether the child participates in the extended family in the same way as would a biological child; whether the person provides financially for the child (depending on ability to pay); whether the person disciplines the child as a parent; whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child; the nature or existence of the child's relationship with the absent biological parent. The manifestation of the intention of the step-parent cannot be qualified as to duration, or be otherwise made conditional or qualified, even if this intention is manifested expressly. Once it is shown that the child is to be considered, in fact, a "child of the marriage", the obligations of the step-parent towards him or her are the same as those relative to a child born of the marriage with regard to the application of the Divorce Act. The step-parent, at this point, does not only incur obligations. He or she also acquires certain rights, such as the right to apply eventually for custody or access under s. 16(12) of the Divorce Act.
Analysis
25I make the following findings of fact:
(a) the respondent represented to the community that he was Naomi’s parent and responsible for her; (b) that the respondent gave the child guidance and advice and participated in sporting events with the child; (c) the respondent paid for two years of private school for her and assisted her with her schoolwork; (d) the respondent introduced the child to friends and coworkers as his “daughter”; (e) the respondent opened and contributed to an RESP and requested a redemption to assist with the child’s attendance at Carleton University; (f) the respondent claimed the child as a dependent on his income tax returns; (g) the respondent designated the child as a beneficiary of his extended health plan through his employment; (h) at paragraph 5 of the respondent’s will, signed on April 21, 2011, the respondent recognized that he stood in loco parentis as father of Naomi; (i) on January 29, 2016, the respondent wrote an email to one of his supervising officers who was retiring. In the email, the respondent refers to having “two amazing stepdaughters.” He describes in very positive terms the children’s endeavors and concludes the paragraph with the words, “we couldn’t be prouder as parents of the successes they have both accomplished.” Further, the respondent referred to his “blended family” in the same email; (j) in the summer of 2017, the child applied for and was awarded one of only five $2,000 bursaries that are only available to family members of the Royal Canadian Regiment (the respondent’s regiment); (k) the parties had disagreements about the respondent’s relationship with the child, requiring the parties to attend counselling. After the counselling, the respondent states that the applicant was responsible for all major decisions and discipline of the child; (l) the applicant made all decisions regarding the child’s school, extracurricular activities, and medical decisions; and (m) the child’s natural father resides in Nova Scotia and was paying child support until the eldest child went to live with him full-time. The child was living with the applicant and the respondent. By letter dated May 3, 2010, the parties agreed that there would be no support as each were caring for a child. However, once the eldest child reached the age of majority, the natural father would resume payments of $250 per month for Naomi.
26The respondent submits that the determination as to whether or not the respondent stands in the place of a parent requires a trial where the court can make a full inquiry and undertake a fact-specific analysis. In addition, the respondent submits that there is no relationship between the child and the respondent, and that the child has withdrawn from the relationship, thereby severing any financial obligation owed by the respondent to the child.
27I cannot find that the child has withdrawn from the relationship with the respondent based on the contradictory evidence. The child is currently seeking counselling to deal with the termination of the relationship with the respondent.
28I find that the respondent, in his own words, acknowledged his standing in the place of a parent in his will. There is no evidence the will has been revoked.
29Regarding the alleged withdrawal by the child or the respondent parent, the Supreme Court in Chartier addressed these issues at paras. 37, 45, and 47:
... The breakdown of the parent/child relationship after separation is not a relevant factor in determining whether or not a person stands in the place of a parent for the purposes of the Divorce Act.
Even if a relationship has broken down after a separation or divorce, the obligation of a person who stands in the place of a parent to support the child remains the same. Natural parents, even if they lose contact with their children, must continue to pay child support.
The respondent’s unilateral withdrawal from the relationship with Jessica does not change the fact that he acted, in all ways, as a father during the time the family lived together. Therefore, Jessica was a “child of the marriage” when the parties separated and later divorce, with all of the rights and responsibility which that status entails under the Divorce Act. With respect to support from the respondent, Jessica is to be treated in the same way as Jeena.
30While the issue of the relationship between the child and the respondent is something that can be determined after a full trial, I find that, on the evidence presented, the applicant has made a prima facie case that the respondent stands in the place of the parent.
31Consequently, I find that the respondent has stood in the place of a parent for this child and has child support obligations.
The biological father
32The biological father of the child is Mr. Legere. He has not participated in this proceeding and has not been added as a party. He has not provided any financial disclosure.
33The applicant was ordered to use her best efforts to provide proof of Mr. Legere’s income for the past three taxation years within 60 days based on the order of Justice Labrosse dated June 29, 2018.
34The applicant has not provided any evidence of Mr. Legere’s income. The only information is that he is paying $300 per month, resides in New Brunswick, is currently paying the table amount of support of $250 per month, and he contributes an additional $50 per month towards Naomi’s section 7 expenses.
35At this juncture in the litigation, the only evidence I possess is that Mr. Legere is paying $250 per month for his adult daughter and contributing $50 per month towards her travel expenses to visit him.
What are the parties’ incomes?
Applicant’s position
36The applicant’s position is that no income should be imputed to her because she has not earned any significant income and will be attending school on a full-time basis. In the alternative, the applicant submits that she may be able to earn $5,000 a year.
37The applicant submits that the respondent’s income for 2019 should be set at $164,954 based on the following:
(a) employment income of $118,176; (b) taxable allowances of $6,844; and (c) non-taxable allowance comprising of post living allowance, foreign service premium, and post-specific allowance totaling $21,848.
38The applicant submits that the figure of $164,954 is based on a review of the respondent’s pay stubs dated June 4, 2019 and June 17, 2019, and an extrapolation of the figures contained therein for a 12-month period.
Respondent’s position
39The respondent seeks to impute a minimum wage income of $24,500 to the applicant.
40The respondent submits that the respondent’s income should be based on his 2018 income tax return where he declared a Line 150 income of $126,423, as that is the most reliable evidence as to the respondent’s annual income.
41In the alternative, the respondent submits that the post living allowance and post specific allowance should not be found to be “income” for support purposes. During submissions, counsel for the respondent conceded that the foreign service premium totaling $14,376 should be included as income.
42The respondent receives three types of living allowances being the post living allowance of 900.83 per month, the foreign service premium of $614 per month, and the post-specific allowance of $346 per month.
Analysis
43I make the following findings of fact regarding the applicant’s employment and education:
(a) she received a Bachelor of Fine Arts degree in photography in 2003; (b) she obtained a Bachelor of Education degree in 2008; (c) she was employed for eight months at the Dartmouth Adult Services Centre in Nova Scotia and left that employment to move to New Brunswick to live with the respondent; (d) upon moving to New Brunswick, she sought substitute teaching employment and received employment insurance benefits; (e) in January 2011, she obtained a six-month contract working as the Executive Director of the New Brunswick Association of Real Estate Appraisers; (f) in August 2011, the applicant, respondent, and child moved from New Brunswick to Trenton, Ontario as a result of the respondent being posted; (g) upon arriving in Trenton, the applicant sought positions as a substitute teacher and received employment insurance benefits. She took a five-week business development course then opened an art school and gallery in Trenton which failed after two years; (h) for the next two years, the applicant taught art classes and earned less than $10,000 a year; (i) in September 2015, the applicant was hired as a part-time professor at Loyalist College; (j) on September 4, 2015, the applicant and the child were involved in a car accident. The applicant was unable to work at the college; (k) She worked at less stressful jobs until the family moved to Kingston in August 30, 2017; (l) on September 1, 2017, the respondent and the child moved to Ottawa and lived at residence at Carleton University; (m) the parties separated on November 16, 2017; (n) the applicant applied for benefits from the Ontario Disability Support Program (“ODSP”) which was apparently denied because information was missing. Once she left Ontario, she no longer qualified for these benefits; (o) the applicant received a $15,000 settlement for her car accident and the respondent made an advance on the equalization payment of $18,051; (p) the applicant worked part-time at Alta Vista Flowers for a period in 2019; and (q) the applicant concedes that she is feeling well enough to do some short-term work in a supportive environment where she can take breaks when needed. She acknowledges that the pay will be a nominal minimum wage but will help pay her bills.
44Despite having a Bachelor of Education, the applicant could not find full-time employment as a teacher, save and except the brief period at Loyalist College.
45The applicant’s current plan is to pursue a further degree. By letter dated March 21, 2019, the applicant received conditional admission to a Master of Psychotherapy and Spirituality (Art Therapy Specialization) Program. The applicant states that this is the only program of this nature in Canada.
46The applicant will be in school all year in this course of study. I have not been provided with a schedule of her courses. The applicant concedes that she can earn $5,000 per year while in full-time studies. I have no information regarding whether she is entitled to grants and/or bursaries.
47Upon a review of the applicant’s notices of assessment, I make the following findings:
(a) in 2014, the applicant had net income of $-10,401; (b) in 2015, she had a net income of $-3,714; (c) in 2016, she had a total income of $360; and (d) in 2017, she earned $1,966.
48The applicant’s family doctor, Dr. Wilson, verified her disability in his report dated March 28, 2018, which indicated that she had chronic lower back pain, neck pain, post-concussion syndrome, depression, anxiety, and ADHD. He indicated that her disability would likely continue for more than a year, and that there were medical requirements that prevented her participation in part-time or full-time training or employment. In the second report, dated November 26, 2018, Dr. Wilson provided a health status report which diagnosed the applicant with depression/anxiety, ADHD, chronic lumbar pain with sciatica, IBS, post-concussion syndrome, and that he expected these conditions to last more than a year.
49The applicant has indicated that her physical condition has improved and has indicated that she is able to potentially earn $5,000 per year.
50At this time, I decline to impute an income of $24,500 to the applicant based on her work experience, her income history, her medical condition and educational plans, and the fact she had never made that amount of income in the past 5 years. In the circumstances, I will impute an income of $5,000 to the applicant.
Respondent’s income
51The respondent’s most recent income stream as set out at Line 150 of his income tax returns is as follows:
(a) 2016, $125,624.93; (b) 2017, $136,129.97; and (c) 2018, $126,423.90.
52The respondent submits that his income for support purposes should be $126,423.90 based on Line 150 of his 2018 federal income tax return. The respondent is employed by the Canadian Armed Forces and is presently stationed in California.
53Since moving to the United States, the respondent has been entitled to various allowances that have increased his income. The respondent argues that the cost of living is more expensive in the United States and, consequently, the post living allowance and post-specific allowance should not be included as income. The respondent has provided no evidence to indicate that the cost of living in the United States is more than in Canada to such an extent that it would have an impact on the calculation of his income for support purposes.
54I find that the court should rely on the most reliable and current evidence of a payor’s income. I accept that the respondent will earn approximately $118,176 as his regular forces pay in 2019. In addition, the respondent will receive the foreign service premium of $6,844 (a taxable allowance) in 2019. Both payments are taxable income and are available for support purposes.
55On the issue of the post living allowance and post-specific allowance, the applicant requests that these allowances be imputed as income to the respondent and grossed up to take into consideration the applicable income taxes. The applicant seeks an order that the sum of $21,848 be added to the respondent’s regular military pay and the taxable allowances (being the foreign service premium) to arrive at the figure of $164,954.
56In Andrews v. Andrews, 2000 CarswellOnt 4005, Marshman J. included tax-free allowances received by the payor (being a foreign service premium), a post differential allowance, and a hostility allowance as income for child support purposes. The court found that the purpose of the Guidelines is to ensure the children receive a fair share of their parents’ income and in keeping with the objectives of section 1 of the Guidelines which states:
(a) to establish a fair standard of support for children that ensures that the benefit from the financial means of their parents and, in the case of divorce, from the financial means of both spouses after separation.
57In D.B.S v S.R.G., 2006 SCC 37, the Supreme Court of Canada stated the following at paragraph 54:
In summary, then, parents have an obligation to support their children in a way that is commensurate with their income. This parental obligation, like the children’s concomitant right to support, exists independently of any statute or court order. To the extent the Federal regime has a skewed a purely need-based analysis, this free-standing obligation is come to imply that the total amount of child support owed will generally fluctuate based on the pay or parents income. Thus, under the federal scheme, it pay your parent who does not increase his/her child support payments to correspond with his\her income will not have fulfilled his\her obligation to his\her children. However, provinces remain free to espouse a different paradigm. When an application for retroactive support is made, therefore, it will be incumbent upon the court to analyze the statutory scheme in which the application was brought.
58In Reynolds v. Andrew, 2008 SKQB 352, Sandomirsky, J. stated at paragraph 24:
I am satisfied that the inclusion of foreign service premiums, hardship allowances, risk allowances and hardship allowance bonuses should be included imputed his income to the pay or parent for child support purposes and the proper application of the Guidelines. These tax-free allowances paid to service persons on tour abroad should be considered income to which their children are entitled to share. This, to me, is the only way to interpret and apply S. 19(1)(b) of the Guidelines.
59In Cloutier v. Francis, 2011 ONSC 5550, Linhares de Sousa, J. included military allowances received by both parties for the purposes of, inter alia, calculating income and determining spousal support obligations. These included a Canadian Forces Post Living Allowance, a living differential allowance and a deployable unit allowance, as well as a hardship allowance.
60I exercise my discretion to include the respondent’s post living allowance and post-specific allowance. Consequently, I find that support shall be based on the finding that the respondent’s 2019 income will be $164,954.
Spousal support
61The respondent concedes that the applicant has an entitlement to spousal support. The respondent proposes to pay $1,104 per month based on his 2018 income of $126,423.90, the applicant’s imputed income of $25,480, and using the midrange of the Spousal Support Advisory Guidelines (the “SSAG”).
62The applicant seeks prospective spousal support in the high range of the SSAG, with the precise amount depending on the amount of child support and basing this on the applicant’s income of $5,000 and the respondent’s income of $164,954.
Quantum of spousal support
63Attached as Schedule A to this endorsement is a DivorceMate calculation prepared by the court based on the following assumptions:
(a) respondent’s income is $164,954; (b) applicant’s income is $5,000; and (c) extraordinary educational expenses are $11,809.
64The DivorceMate calculation indicates that spousal support would range from $1,313, the low end, to the midrange of $1,532, and a high range of $1,750 per month. Based on these figures, the parties’ net disposable income would be as follows:
(a) A low range of $1,500 per month would leave the respondent with 82% and the applicant with 18% of the combined net disposable income of the parties; (b) A midrange of $1,749 per month would leave the respondent with 80.2% and the applicant with 19.8% of the combined net disposable income of the parties; and (c) A high range of $1,999 per month would leave the respondent with 78.4% and the applicant with 21.6% of the combined net disposable income of the parties.
65I find that the applicant has a prima facie entitlement to spousal support based on a compensatory and non-compensatory basis. I have also considered the applicant’s financial statement, dated April 25, 2019, which provided a current monthly budget of $2,868. That budget is dated April 25, 2019. The applicant provided a proposed budget that indicated her monthly expense would rise to $6,325 per month, which included $1,789 for income taxes and Canada pension plan contributions. Further, the proposed budget had an increase in the rent, groceries, laundry and dry cleaning, public transit and travel, and an education expense of $675 per month, as well as an RRSP/RESP withdrawal of $300 and vacations of $100. There is no explanation provided by the applicant as to why her expenses would jump from $2,868 per month to $6,325 per month.
66The burden of proof is on the applicant to provide satisfactory evidence to the court as to her monthly expenses. Despite this matter being argued in July 2019 after the applicant moved to Edmonton, no new financial statement was provided. I have proceeded on this basis and used the financial statement that existed on April 25, 2019 and added the $675 in education expenses to arrive at a figure of approximately $3,543 per month.
67On an interim motion, the court is to make a temporary order to last until trial, at which point the court will embark upon a fact-specific analysis and will have the opportunity to hear the viva voce evidence of the parties. The parties will also be subject to cross-examination.
68Based on the evidence, I find that the applicant has lived off her personal injury settlement and the advance on the equalization payment. She currently has compelling financial circumstances. The applicant has little to no income, while the respondent earns $164,954 per year. The parties lived together from May 2010 to November 2017.
69The general principle is that, absent exceptional circumstances, it is standard practice for interim support to be ordered within the Guidelines’ range. (Slongo v. Slongo, 2017 ONCA 272.)
70The SSAG provide an exception to utilizing the ranges of support in compelling financial circumstances at the interim stage of a proceeding. Section 12.1 of the SSAG states:
12.1 — Compelling Financial Circumstances in the Interim Period
We have listed this exception first, as it is the first exception that most will encounter. There are some situations in the interim period where there may have to be an exception for compelling financial circumstances. When spouses separate, it is not always possible to adjust the household finances quickly. One of the spouses may have to bear large and often unmovable (at least in the short run) expenses, most likely for housing or debts. In most instances, the ranges generated by the formulas will cover these exceptional cases, but there may be some difficulties where marriages are shorter or incomes are lower or property has not yet been divided. Interim spousal support can be adjusted back to the formula amounts once a house has been sold or a spouse has moved or debts have been refinanced.
71This issue has been reviewed by various courts. In Blackstock v. Comeau, 2018 ONSC 193 the court found that there were compelling financial circumstances to depart from the Guidelines and award on an interim basis up to three times the recommended amount where, along with illness and disability grounds, the applicant could not support her basic needs, which were substantial and extraordinary, with a $29,995.56 per year income.
72In Tasman v. Henderson, 2013 ONSC 4377, the court exceed the amount recommended by the Guidelines (while also disagreeing with the inputs used by the respondent in calculating the range) in their interim award for spousal support on the basis that the Guidelines underestimated the applicant’s needs because of the length of the marriage and the lack of children. It was alleged that the appropriate range was between $600 and $800 per month. The court decided to award $1,500 per month.
73In Singh v. Singh, 2013 ONSC 6476, the court exceeded the Guidelines’ recommendation in their interim award order for spousal support because the applicant was found to have suffered significant economic disadvantage from her short-term marriage, which had caused her to leave India where she would have been self-sufficient and come to Canada where her education and training were insufficient. The applicant was also without matrimonial home or other family property. The court awarded $400 per month—well above the $31 to $41 range recommended by the Guidelines.
74In Osanlo v. Onghaei, 2012 ONSC 2158 the court exceeded the Guidelines’ recommendation in the interim award for spousal support on the ground that the applicant was ostensibly the primary caregiver for the children and yet was in extremely precarious financial situation. The Guidelines recommended between $1,803 and $2,404 per month. The court awarded $4,260 per month on an interim basis.
75Finally, in Mignault v. Lauzon, 2018 ONSC 5452, the court’s interim support award exceeded the Guidelines on the basis that, inter alia, there was a significant income disparity between the couple and a need for the applicant to ‘get back on their feet’ considering their advanced age and the amount of time they had been out of work. The Guidelines’ range came in at $313 to $417 per month. The court awarded $1,600 per month.
76I find that, in this matter, the SSAG ranges of support are too low for a 42-year-old woman with medical issues following a 7.5-year cohabitation where she has a compensatory and non-compensatory entitlement to spousal support, and who is currently unable to meet her basic needs.
77Attached as Schedule A is a DivorceMate calculation providing six scenarios of spousal support. In scenarios D, E, and F, the following results are indicated:
(a) upon a payment of $4000 per month, the payor would have 64.6% of the net disposable income, which amounts to $6,612 per month, while the applicant would have 35.4% of the net disposable income, which would be $3,626 per month; (b) upon a payment of $3,500 per month, the payor would have 67.9% of the net disposable income, which amounts to $6,958 per month, while the applicant would have 32.1% of the net disposable income, which would be $3,284 per month; and (c) upon a payment of $3,000 per month, the payor would have 71.4% of the net disposable income, which amounts to $7,298 per month, while the applicant would have 28.6% of the net disposable income, which would be $2,918 per month.
78From May 2010 until November 2017, the respondent was the main wage-earner for the applicant and the child, Naomi. The applicant’s lifestyle was directly related to the respondent’s income. I find that it is reasonable that the applicant should have sufficient funds to house herself, feed herself, clothe herself, and attend school.
79I find it reasonable that the respondent pay to the applicant, on a temporary basis, the sum of $3,500 per month commencing May 1, 2019—pending further order of this Court.
Quantum of child support
80The next issue is the quantum based on the child’s age and the fact that her father maintains a relationship with her and has an obligation to pay support to the child.
81The applicant proposes that, based on an income of $164,954, the respondent pay child support of $1407, $1257, or $1107 per month for Naomi based on three separate scenarios.
82I reject that request for two reasons. Firstly, since the child is over the age of 18, the Guidelines provide the court with the discretion to determine child support based on the appropriate table, or to determine support that the court considers appropriate. Secondly, I find that this request is not appropriate where a child does not reside with a parent for the bulk of the year and is attending school on a full-time basis. It is more appropriate to calculate the actual cost of post-secondary education including tuition, accommodations, food, and other necessary expenses, then apportion those costs between the spouses after deducting a reasonable contribution from a child towards the expense, as contemplated by subsection 7(1)(2) of the Federal Child Support Guidelines and Lewi v. Lewi (2006), 2006 ONCA 409, 80 O.R. (3d) 321.
83As the applicant is seeking a contribution from the respondent to Naomi’s postsecondary educational expenses, she has the burden of providing the evidentiary basis for such a determination. The applicant relies on a one-page document entitled “Naomi budget for 2018-2019,” which indicates that her total monthly budget is $2,374 per month without tuition. With the tuition, the monthly cost is $3,083 per month or $36,996 per year.
84The child has the following sources of income, totaling $1,505.92 per month, or $18,071.04 annually, to defray some of her expenses:
(a) bursaries, $83.34; (b) 50% of summer employment, $250; (c) student loan, $347.42; (d) OSAP grant, $525.16; and (e) child support for Mr. Legere, $300.
85Postsecondary educational costs are a section 7 expense to be shared on a proportional basis. I find that the child has been reasonable in applying for and obtaining bursaries, grants, and a student loan. I also find it reasonable to include 50% of her summer employment income of $3,000. I do not find it reasonable that a child should apply all her summer earnings towards her postsecondary education.
86The shortfall between the yearly budget of $36,996 minus the sources of income of $18,071.04 is $18,924.96.
87Cross-examination has not occurred on the budget. However, I have the discretion to review the budget and determine a reasonable amount on a temporary basis with the proviso that the budget will be reviewed at trial. I find that a reasonable and necessary budget would include the following:
(a) rent/utilities, $750; (b) groceries/personal, $500; (c) phone bill, $110; (d) laundry, $50; (e) medication, $50; (f) tuition, $709; (g) books, $125; (h) glasses, $21; (i) transportation, $75; and (j) miscellaneous, $100.
Total expenses: $2,490 per month.
88From the budget of $29,880, the sum of $18,071.04 is deducted, leaving a balance of $11,808.96. All remaining budgetary issues proposed in Naomi’s budget not included in the revised budget are to be paid for by Naomi. The sum of $11,808.96 is to be shared on a proportional basis.
89Based on the applicant receiving spousal support of $3,500 per month, I order that the applicant pay 32% of the expenses, or $314 per month, and the respondent pay 68% of the expenses, or $669 per month, commencing May 1, 2019.
Life insurance
90The applicant seeks an order requiring the respondent to designate the applicant as the irrevocable beneficiary of two life insurance policies totaling $430,000 as security for child and spousal support.
91The respondent proposes life insurance of $50,000 based on spousal support of $1,104 per month on a revocable basis pending further order of this court.
92Currently, the respondent has two life insurance policies. The first policy is a SISIP term life insurance plan—policy number 901102—and has a face value of $400,000, insuring the respondent’s life with the respondent’s father as a designated beneficiary. The second policy, in the amount of $30,000, insures the life of the applicant with the respondent’s father as the beneficiary.
93The respondent’s position is that it would be inappropriate on a temporary motion to make such an order given that the quantum and duration of spousal support has yet to be determined. In the alternative, the respondent proposes that the sum of $50,000 is sufficient.
94I have the discretion to make an order requiring the respondent to provide security for his child and spousal support obligations under the Divorce Act: see Katz v. Katz, 2014 ONCA 606.
95Counsel for the applicant sought the full amount of life insurance to secure the spousal support obligation. I have ordered spousal support of $3,500 per month. Until this matter is finally decided, I order the respondent to designate the applicant as the irrevocable beneficiary of the sum of $300,000 of his SISIP term life insurance plan—policy number 901102. This sum is to secure the payment of spousal support pending further order of this court.
96I order the respondent to provide the applicant with a copy of said designation by August 30, 2019.
Costs
97If the parties cannot settle the issue of costs, the applicant is to file her cost submissions not exceeding three pages, plus any offers to settle and any bill of costs, by September 6, 2019. The respondent is to file his cost submissions not exceeding three pages, plus any offers to settle and any bill of cost, by September 20, 2019. The respondent may file reply cost submissions not exceeding one page by September 27, 2019.
Mr. Justice Mark Shelston Released: August 22, 2019