Sandhu v. Dhillon, 2021 ONSC 1143

Court File and Parties

COURT FILE NO.: FS-21-0003-0000 DATE: 2021 02 12 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: AKSHPREET KAUR SANDHU v. MANINDERPAL SINGH DHILLON

BEFORE: EMERY J.

COUNSEL: S. Joshi, for the Applicant N. Dhindsa, for the Respondent

HEARD: January 28 and February 2, 2021

Reasons for Decision

1This motion is brought by the applicant wife for interim spousal support. The motion is brought on an urgent basis before a case conference. In my endorsement dated January 22, 2021, I permitted the hearing of the motion based on the urgency and economic hardship she claims.

2The motion proceeded before me on January 28, 2021. Due to the lack of time, compounded by technical difficulties, the motion was adjourned to February 2, 2021 for counsel to complete submissions.

3It is up to the court to first determine the applicant’s entitlement to spousal support, and if found, the appropriate quantum of that interim support. Both issues are contested by the respondent husband. Although he initially argued that there was no urgency for the court to hear this motion, the respondent was ultimately content to have the motion heard before a Case Conference.

Background facts

4The applicant and the respondent were married on November 8, 2019. Prior to marriage, the applicant was a resident of Vancouver, British Columbia, and worked at a full-time job.

5After marriage, the applicant moved with the respondent to Brampton, Ontario.

6During the marriage, the applicant applied for a job with Amazon Canada. She was successful in obtaining the position, which was based in Brampton. Both her husband and his family pressured her to quit the job after two weeks and to stay home.

7The applicant alleges that the marriage was abusive. The applicant and the respondent separated on or about December 20, 2020 after a physical altercation between them. On the advice of his family after the incident, the respondent left the apartment where he and the applicant had been living.

8In her affidavit, the applicant states that she was left to fend for herself. She states that she has no source of funds. She deposed in her affidavit that she is at risk of being homeless when her lease expires in the apartment where she is living. I gave this evidence considerable weight when deciding the motion was urgent.

9The applicant states that she is in dire need of spousal support. She states that she is financially dependant on her husband. She states that she did not work for at least a year after marriage. She had left her job in Vancouver, which was the only place where she has ever worked before the marriage. In December 2020, she obtained a job as an assistant receptionist in a dental clinic where she currently works. She receives only 20 hours of work a week, from which she earns $300 bi-weekly. She states that this is not even enough to cover her rent.

10The applicant has filed a financial statement in which she claims that her expenses are $3,550 a month. The applicant claims $3,550 a month as an exception to the formula for income based spousal support under the (Federal) Spousal Support Advisory Guidelines (the “SSAG’s”).

11The respondent has been employed as a truck driver before and since the date of marriage. The applicant states that she was able to see the respondent’s Notice of Assessment from Canada Revenue Agency for 2019, and that he made $92,000 that year. The respondent admits that he would earn $92,000 as a truck driver when he was single and could work extra hours. However, he did not work that overtime when he was married, and his income for 2020 was only $86,320.

12The applicant argues that the respondent is now available to work the extra hours as he is again a single person. She submits that he is able to earn a higher income so that the support he is ordered to pay should be based on an annual income of $92,000 for him, and $7,200 for her.

Entitlement

13The jurisdiction for a court to make an order for spousal support is found in section 15.2(1) of the Divorce Act and section 30 of the Family Law Act.

14Justice Price stated in Singh v. Singh, 2013 ONSC 6476 that motions for interim support are summary in nature. The Court will generally not conduct a detailed investigation into the merits of the case, in large part because there is not sufficient evidence to enable the court to do that at so early a stage.

15On a motion for interim spousal support, the claimant does not have to prove entitlement on the balance of probabilities as he or she would be required to prove at trial. He or she need only show a prima facie case for entitlement. See Lamb v. Watt, 2017 ONSC 5838, at para. 20.

16To establish entitlement, the Supreme Court of Canada in Bracklow v. Bracklow, [1999] 1 SCR 420 outlined three conceptual bases on which to claim spousal support: compensatory, non-compensatory and contractual.

17In this case, there is no contractual basis for spousal support. The applicant seeks spousal support on a compensatory and non-compensatory basis.

18While this was a short marriage, the applicant would still be entitled to spousal support on a compensatory basis. While compensatory support is a ground for the applicant’s claim for support, she primarily seeks non-compensatory support based on her need for spousal support and the respondent’s ability to pay that support.

19In Singh, the Court considered a spousal support claim following a seven-month marriage. The claimant had moved from India to Canada for her marriage and was completely dependent financially on her spouse. Price J. noted that “compensatory support generally plays a lesser role in marriages of short duration than it does in longer marriages. However, this is not invariably the case.” In that case, His Honour concluded that “in these circumstances, compensatory support is appropriate notwithstanding the short duration of the marriage.”

20The applicant on the motion before me moved from British Columbia to Ontario following her marriage. She left a well-paying job and her network of friends and colleagues in British Columbia. Except for the short time at Amazon, she has not worked in Brampton. For the purposes of this motion, I accept the evidence of the applicant that she was completely dependent on her spouse before separation. She meets the threshold for compensatory spousal support.

21The applicant also meets the threshold for a claim to non-compensatory support. Non-compensatory is based on the need of the claimant. The claim to such support arises out of the marriage relationship itself and the mutual financial interdependence arising from that relationship. See Cameron v. Cameron, 2018 ONSC 2456, at para. 54.

22The applicant does not have means to support her needs. She earns only $800 a month at the job she obtained at the dental clinic after separation. There is no dispute that she was entirely financially dependent on the respondent prior to the breakdown of the marriage. As she transitions into her post-separation life, the applicant needs spousal support on an interim basis.

23Based on the facts, I find the applicant has made out a prima facie case for entitlement to interim spousal support.

Appropriate amount

24The SSAG’s are a useful starting point to determine the range within which the quantum of spousal support may be found. However, they are merely advisory and not binding. The SSAG’s also recognize that there may be extraordinary circumstances where the Court may make an exception to the application of the incomes-based formula that would otherwise be suggested under the SSAG’s.

Does an exception to formula-based support apply here?

25According to the formula under the SSAG’s, the applicant’s claim for spousal support using 2020 incomes of $86,328 for the respondent and $7,200 for the applicant would produce a range of $99 to $132 a month. If an annual income of $92,000 was attributed to the respondent, the monthly range would increase to between $111 and $148.

26I find these ranges to be insufficient to meet the non-compensatory need of the applicant. The formula ranges would also be unfair to both parties as that support would severely inhibit the applicant financially and could allow a potential claim for retroactive support to build up against the respondent.

27The applicant advances her claim for interim spousal support on the exceptions discussed under Chapter 12 of the SSAG’s. The most relevant exception is the Compelling Financial Circumstances in the Interim Period under Chapter 12.1, which states that:

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.

28It is preferable to use this interim exception for shorter term or purely transitional needs under Chapter 12.1 of the SSAG’s because it is applicable on need or economic hardship considerations. However, there is also an exception for compensatory support claims where the court may use discretion to award support in short marriages, without children under Chapter 12.5.

29The “The Compensatory Exception in Short Marriages without Children” exception under Chapter 12.5 reads as follows:

For short- or medium-length marriages, however, the without child support formula produces smaller amounts of support, reflecting the reduced importance of compensatory considerations, especially as most of these will be marriages without children. More important in these short-to-medium marriages is the transitional function of non-compensatory support, with the transition being longer or shorter depending upon the expectation and reliance interests flowing from the length of the marriage.

But some short- or medium-length marriages can involve large compensatory claims, disproportionate to the length of the marriage, even without any children involved. These compensatory claims may relate to an economic loss or may involve a restitutionary claim for an economic advantage conferred….

30This exception could apply where one spouse is transferred for employment purposes, forcing the other spouse to give up his or her job and to become a secondary earner.

31This exception could also apply where one spouse moves across the country to marry, and in doing so gives up his or her job or business. The SSAG’s acknowledge that in those circumstances, the formula under the Advisory Guidelines for establishing a range of support provides little assistance.

32In Singh, Price J. observed that “in the present case, where spousal support awarded may be varied by the trial judge, it is not appropriate to apply the Advisory Guidelines as a software tool or formula for determining the specific amount and duration of support to be paid to Mrs. Singh. They must be considered in the context and applied in their entirety, with specific consideration of any applicable variables. Their use must be moderated in exceptional cases like the present one in order to prevent them from becoming instruments of unfairness.”

33In the case at bar, the application of the SSAG’s would lead to an unfair result. Like in Singh, the facts in this case qualify as an exception to the strict application of the formula under the SSAG’s.

Considerations for awarding exception-based support

34In determining spousal support where the SSAG’s do not apply, the Courts generally make an Order based on the needs of the recipient and the payor’s ability to pay.

35The objectives and methodology for determining the appropriate interim spousal support to order was set out in Samis v. Samis, 2011 ONCJ 273, at paragraphs. 43 and 44, where Justice S. B. Sherr wrote:

43In Kowalski v. Grant, 2007 MBQB 235, 219 Man. R. (2d) 260, 43 R.F.L. (6th) 344, [2007] M.J. No. 386, 2007 CarswellMan 422 (Man. Q.B.), the court set out the following principles in dealing with temporary spousal support motions:

1. Interim support is to provide income for dependent spouses from the time the proceedings are instituted until trial.
2. The court need not conduct a complete inquiry into all aspects and details to determine what extent either party suffered economic advantage or disadvantage as a result of the relationship. That is to be left to the trial judge.
3. Interim support is a holding order to maintain the accustomed lifestyle if possible pending final disposition as long as the claimant is able to present a triable case for economic disadvantage.
4. Interim support is to be based on the parties’ means and needs, assuming that a triable case exists. The merits of the case in its entirety must await a final hearing.

44In Robles v. Kuhn, 2009 BCSC 1163, [2010] B.C.W.L.D. 1935, [2010] W.D.F.L. 1330, [2009] B.C.J. No. 1699, 2009 CarswellBC 2239 (B.C.S.C.), the court added the following considerations:

1. On interim support motions, needs and ability take on greater significance.
2. On interim motions, the need to achieve self-sufficiency is of less importance.
3. Interim support should be ordered within the range of the Spousal Support Advisory Guidelines, (Ottawa: Minister of Justice and Attorney General of Canada, July 2008), unless exceptional circumstances dictate otherwise.
4. Interim support should only be ordered where a prima facie case for entitlement has been set out.

36The issue of granting interim spousal support, based either on the SSAG’s or on the needs and means of the parties, was considered by Ricchetti J. in Joyce v. Joyce, 2015 ONSC 4311. In Joyce, Ricchetti J. agreed with the principles for setting interim spousal support expressed by Justice Sherr in Samis, except for the mandatory language in paragraph 3 excerpt from the Robles case. Emphasizing the need for flexibility and the importance of preserving the discretion of a judge when setting an amount for support that fits the circumstances, Ricchetti J. adopting the balanced approach confirmed by the Court of Appeal in Racco v. Racco, 2014 ONCA 33. In paragraphs 36 to 38 of Joyce, Ricchetti J. explained it this way:

36This consideration, as set out in Robles, would have the effect of giving the SSAG a much greater importance in the determination of an award of interim spousal support than the use of SSAG in determining a final spousal support order. In determining a final spousal support award, the SSAG calculations are a useful tool as a “check” of the court’s conclusion arrived after the application of the factors set out in the Divorce Act. The proper approach to the determination of spousal support was described by the Ontario Court of Appeal in Racco v. Racco, 2014 ONCA 33:

25The application of these principles makes the determination of spousal support highly individual and discretionary. As Professors Rogerson and Thompson state in their introduction to the Spousal Support Advisory Guidelines (Ottawa: Department of Justice, 2008) (SSAG):

Bracklow emphasized the highly discretionary, individualized nature of spousal support decisions. The Court was clear that the Divorce Act endorses no single theory of spousal support and must retain flexibility to allow judges to respond appropriately to the diverse forms that marital relationships can take. The Court presented spousal support determinations as first and foremost exercises of discretion by trial judges who were required to “balance” the multiple support objectives and factors under the Divorce Act and apply them in the context of the facts of particular cases.

44The principles articulated in the Supreme Court of Canada in connection with the Divorce Act provide a framework within which equitable support awards are to be made. Although the SSAG offer a certain level of predictability and consistency once the basis for entitlement has been established, they are advisory only. The court cannot lose sight of the individual circumstances of a case in determining both entitlement and quantum under section 15 of the Divorce Act.

37The cases speak of concepts such as the financial affairs of parties following separation being “in flux”, and how interim support serves as a “holding order” for parties in transition. This language is particularly apt where the spouse requiring support has relocated during the marriage that has since broken down. Such is the case here.

Assessing the amount to award on this motion

38The applicant relocated to Ontario for the sake of the marriage, and she is economically stranded. She requires a “holding order” of interim spousal support until she can find self sustaining employment in Ontario or find her way back home to British Columbia. This could prove difficult in the current economic circumstances, where mobility and career opportunities are hampered by limitations caused by the COVID-19 pandemic.

39The applicant has shown a short-term need for support, and the respondent has the ability to pay support on his income of at least $86,328. The respondent has not provided a financial statement. It is impossible to determine his net-disposable income after expenses, or even the expenses or other financial obligations of his own each month. In the absence of that information, calculations for an appropriate support award can only be made based on his gross income.

40The respondent submits that he made an advance payment to the applicant of $20,000 upon separation, and that he should receive credit for this amount. He states that she deposited $19,000 of this amount into her Tax Fee Savings Account, which has since grown to $27,000.

41The applicant agrees with the respondent’s statement that she received $20,000 from him around the time they separated. However, she has provided further evidence that she returned $13,000 of this amount on August 7, 2020.

42In my view, this advance and return of funds can be considered in the context of the equalization process between the parties. The balance of $6,000 is not a factor to apply into the spousal support equation, at least not at this time.

43The applicant submits that the respondent, when he was single, would earn at least $92,000.00 per annum or approximately $7,666.00 per month. She argues that it is reasonable that she could expect to receive approximately one half of the monthly income.

44In her sworn financial statement, the applicant discloses that she has $3,550.00 in monthly expenses that demonstrates her entitlement to the support she claims based on need. She submits that it is reasonable to expect that the respondent should be required to pay $3,550.00 for interim support. This claim is approximately 46% of his monthly income.

45The amount for spousal support the Court may award on an interim basis is entirely discretionary, but should be based primarily on the need of the claimant. That is not to say, however, that the Court should be oblivious to what would be fair to the payor when making an order for interim spousal support.

46The applicant claims an education expense for taking a preparatory course to write a dental examination in August in her financial statement. That course has cost her $5,085 in total, for which she claims a cost of $1,000 a month in an adjacent column. That would be properly claimed if apportioned for the first 5 months of 2021 only. However, the applicant likely paid that tuition up front and it can be recovered from the respondent over 12 months at $425 a month instead. This expense is a reasonable amount for the applicant to spend for training to update her work skills.

47This means that $575 comes off the amount the applicant is claiming each month. The Court would also subtract the $800 a month the applicant earns herself, and the $67 for her cell phone that the respondent already pays.

48After making these adjustments, the respondent is ordered to pay interim spousal support to the applicant in the amount of $2,200 a month, effective January 1, 2021.

Duration

49The Court heard submissions that whatever interim spousal support the court awards should be limited to one year.

50Given the short time the parties were together, the age of the parties and the prospect that the applicant may upgrade her skills to find new employment in Ontario or in British Columbia, the respondent shall pay interim spousal support to the applicant under this order for 12 months.

Conclusion

51The respondent, Maninderpal Singh Dhillon, is ordered to pay interim spousal support of $2,200 each month to the applicant, Akshpreet Kaur Sandhu, commencing on January 1, 2021, up to and including December 1, 2021, subject to any further order.

52A Support Deduction Order shall issue.

53If either party seeks costs for this motion, they may file written submissions consisting of no more that two pages, not including a bill of costs or any offer to settle, by February 19, 2021. The responding party shall have until February 26, 2021 to file responding submissions, subject to the same page limit. No reply submissions shall be permitted, without leave.

54All submissions may be filed by email to my judicial assistant at melanie.powers@ontario.ca.