Court File and Parties

Court File No.: Halton 409/11 Date: 2012-04-24 Ontario Court of Justice

Between:

Danielle Lynn Dupuis Applicant

— And —

Charles Denis Desrosiers Respondent

Before: Justice S. O'Connell

Heard on: March 2, 2012

Reasons for decision released on: April 24, 2012

Counsel:

• Novalea Jarvis for the applicant
• Charles Desrosiers on his own behalf

O'CONNELL J.:

INTRODUCTION

[1] This is a motion brought by the applicant, Danielle Lynn Dupuis. She seeks temporary spousal support from the respondent, Charles Denis Desrosiers, effective January 1, 2012. She further seeks an order that the respondent maintain medical, extended health and dental insurance coverage for her and that he maintain life insurance coverage for the applicant and child for so long as he is obligated to pay child and spousal support.

[2] The respondent does not agree that he should pay temporary or final spousal support. It is his position that the applicant is underemployed and that she is fully capable of finding employment. He further submits that he does not have the ability to pay spousal support.

BACKGROUND

[3] The parties were in a common-law relationship and cohabited from October 2004 to March of 2011, the date of separation. The applicant is 37 years old and the respondent is 34 years old. There is one child of the relationship, Sophie Anne Noelle Desrosiers, born December 20, 2007 ("Sophie"). Sophie was born with right hemiplegic Cerebral Palsy. Sophie is seriously disabled and she will require the financial, physical, emotional, and psychological support from her parents for the rest of her life.

[4] The applicant has not worked outside of the home since Sophie's birth. During the parties' relationship, she was a full-time mother and homemaker and at this time, she continues to be Sophie's primary caregiver. The respondent acknowledges that throughout the parties' cohabitation and since Sophie's birth, he worked full-time and was the sole financial support for the family.

[5] Prior to the separation, the parties were living in a condominium owned by the respondent. The parties continued to reside in the family home after the separation until April 25, 2011, when the applicant was able to locate and secure rental accommodation for herself and Sophie. The respondent remained in the former family home until May 1, 2011. The home was eventually sold pursuant to power of sale proceedings commenced in August of 2011. The respondent has since declared bankruptcy.

[6] When the parties separated, Sophie remained in the primary care of the applicant, with the agreement of the respondent. The respondent had access to Sophie every weekend from Saturday at 7:00 p.m. to Sunday at 7:00 p.m. and any further access that was agreed upon by the parties. At the time this motion was argued on March 2, 2012, the respondent's access was every weekend from Saturday at 7:00 p.m. to Monday at 8:00 p.m.

[7] After the proceedings were commenced, the parties participated in mediation and to their credit, on January 31, 2012, the parties entered into a Final Order on consent regarding the custody and access arrangements for Sophie and a temporary order for child support, without prejudice to the applicant's claim for spousal support, arrears and costs.

[8] The Final Order regarding custody and access provides that the parties shall have joint custody of Sophie with the current access arrangements above. However, commencing in September of 2012, Sophie shall attend St. Paul's Catholic Elementary School full-time and the parties shall begin a shared parenting schedule whereby Sophie will reside with each parent on a "week-about" basis, with each parent entitled to one visit with Sophie on the Wednesday evening of the alternate parent's week.

[9] The Final Order also provides that if the applicant "is not working and is a stay at home mother come September 2012, she shall care for Sophie after school until the respondent can pick her up after work on weekdays during his week." If the applicant is working, then the parties will obtain a caregiver for after-school care.

[10] The temporary order for child support provides that, commencing February 15, 2012, and continuing until August 15, 2012, the respondent shall pay child support to the applicant in the amount of $395.00 per month, based on his gross annual projected income of $43,640.00 for 2012, in accordance with the Child Support Guidelines.

[11] The applicant's current source of income is child support from the respondent, Ontario Works, the Universal Child Tax Benefit, an Easter Seals subsidy, and a special government supplement called ACSD or Assistance for Children with Severe Disabilities for a total monthly income of $1,131.76 ($793.50 of which is government assistance) or $13,581.12 per annum. The applicant pays rent at a rate of $920.00 per month. According to the financial statements and notices of assessment filed, the applicant's annual income for the past three years is as follows:

• 2009: $1,200.00
• 2010: $1,200.00
• 2011: $6,654.00

[12] The applicant has a grade 12 education. Prior to Sophie's birth, she worked full-time in the Thrift Store at the Salvation Army earning minimum wage, until she moved to part-time hours due to complications with her pregnancy. Prior to her position with the Salvation Army, the applicant worked full-time as a cashier at a food store and also as a pharmacist's assistant at a pharmacy, again earning minimum wage. The applicant started college and was working towards a diploma, but did not complete her college program.

[13] The respondent is employed full-time as a parts manager at a company which makes and repairs custom motorcycles. He has been employed with this company for four years. According to the respondent's financial disclosure, notices of assessment and year to end pay stubs filed in these proceedings, the respondent's annual income with this company for the past three years is as follows:

• 2009: $55,494.00
• 2010: $54,080.00
• 2011: $51,386.00

[14] The respondent states that his projected income for 2012 will be $38,400.00 for the following reasons. He states that until 2011, he had been working 50 hours per week during the four years of the parties' cohabitation. However, in the fall of 2011, his employer changed his hours to 40 hours per week, thereby reducing his income to $43,600.00. He produced a letter from his employer dated November 8, 2011 confirming this. In addition, once the shared parenting schedule begins in September of 2012, he will be missing approximately one day each week during his weeks with Sophie to attend her medical appointments. He further submits that he has already missed several days of work since January of 2012 due to legal appointments, court attendances and illness, thereby reducing his to $38,400.00 for 2012.

[15] In addition to his employment income, the respondent has received substantial funds from his mother, although he states that these are borrowed funds. The respondent was represented by experienced counsel up until the argument of this motion and incurred approximately $45,000.00 in legal fees, which have been paid by his mother. He also has a joint account that he shares with this mother which he uses for emergency funds.

[16] The respondent states that he will need to move into less expensive rental accommodation that accommodates Sophie's needs and that the least expensive apartment that he can find suitable to his needs is approximately $1,300.00 per month. He further states that his car is essential for employment purposes as well as to drive Sophie to her various medical appointments at a cost of approximately $800.00 per month. The respondent states that he does not have sufficient means to pay spousal support and that an order for spousal support will cause him financial hardship.

THE LAW

[17] Subsection 33(8) of the Family Law Act provides that the objectives of a spousal support order are as follows:

(8) Purposes of order for support of spouse — 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).

[18] In Bracklow v. Bracklow, [1999] 1 S.C.R. 420, the Supreme Court of Canada established that there are three kinds of entitlement for spousal support: 1) compensatory; 2) non-compensatory (based on need), and 3) contractual (based on an agreement between the parties).

[19] The Supreme Court of Canada in both Moge v. Moge, [1992] 3 S.C.R. 813, and Bracklow v. Bracklow, [1999] 1 S.C.R. 420 set out the following examples of compensatory support:

a) A spouse's education, career development or earning potential has been impeded as a result of the marriage because, for example:

i. A spouse has withdrawn from the workforce, delays entry into the workforce, or otherwise defers pursuing a career or economic independence to provide care for children and/or spouse;

ii. A spouse's education or career development has been negatively affected by frequent moves to permit the other spouse to pursue these opportunities;

iii. A spouse has an actual loss of seniority, promotion, training or pension benefits resulting from absence from the workforce for family reasons;

b) a spouse has contributed financially either directly or indirectly to assist the other spouse in his or her education or career development.

[20] Compensatory support is premised on a marriage being a joint endeavour and seeks to alleviate economic disadvantage by taking into account all the circumstances of the parties, including the advantages conferred on either spouse during the marriage. It is concerned with an equitable sharing of the benefits of the marriage. Contractual entitlement, on the other hand, flows from the express or implied agreement. Finally, non-compensatory support may be ordered "where it is fit and just to do so." See Poirier v. Poirier, 2010 ONSC 920.

[21] In Decker v. Fedorsen, [2010] O.J. No. 5661, 2010 ONCJ 618, Justice Stanley Sherr summarizes the following principles applied, as set out in Kowalski v. Grant, 2007 MBQB 235, 219 Man. R. (2d) 260, 43 R.F.L. (6th) 344 and Robles v. Kuhn, 2009 BCSC 1163, in dealing with temporary spousal support motions:

a) Interim support is to provide income for dependent spouses from the time the proceedings are instituted until trial. It should only be ordered when a prima facie case for entitlement has been made out.

b) On interim support motions, needs and ability take on greater significance. The need to achieve self-sufficiency is of less importance.

c) 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.

d) 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.

e) 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.

f) Interim support should be ordered within the Spousal Support Advisory Guidelines (SSAG) range unless exceptional circumstances dictate otherwise.

[22] The Court of Appeal in Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241, stated that the SSAG, while only advisory, are a useful starting point to assess the quantum of spousal support, once entitlement is established. A judge who fails to address the SSAG, properly presented by counsel, may commit a reviewable error. The Guidelines have also been endorsed for use on temporary support motions. See Decker v. Fedorsen, supra; D.R.M. v. R.B.M., 2006 BCSC 1921.

ANALYSIS

The Applicant's Entitlement

[23] The applicant has made out a prima facie case for interim spousal support. The applicant has a strong compensatory claim. She has been out of the waged workforce as a stay at home mother for almost five years to care for the parties' child. Sophie is a young child who has very special needs, requiring attendance at numerous medical and therapeutic appointments with doctors, occupational therapists, speech pathologists, physiotherapists, neurologists and other specialists. Both parties filed voluminous medical records in these proceedings regarding Sophie. Although the respondent tried to attend as many of Sophie's appointments as he could, the evidence is overwhelming that the applicant attended the vast majority of Sophie's medical appointments and was the parent responsible for communicating with and coordinating all of Sophie's health care providers. This is understandable given the respondent's admission that he was working 50 hours per week throughout the parties' relationship.

[24] The applicant has been economically disadvantaged by her child care and household responsibilities throughout the parties' relationship. Further, since the separation, her continued responsibility as the primary caregiver of a young child with very special needs has limited her ability to obtain employment and become self-sufficient. Unlike the respondent, the applicant does not have a car nor can she afford a car. She is required to take Sophie to all of her medical appointments by public transit. She also must take Sophie with her when she does groceries and errands, which can be very time consuming and stressful for Sophie. Sophie cannot walk and given the special size of her stroller, the applicant has sometimes been refused entry on the public bus.

[25] The applicant has also been financially disadvantaged by the breakdown of the relationship and has compelling need. She is currently living below the poverty line and receiving government assistance. The basis for her entitlement to spousal support is therefore both compensatory and non-compensatory.

[26] Once Sophie starts school full-time in September and the parties begin the shared parenting schedule, the applicant may have more opportunity to find employment or to undertake retraining or education aimed at becoming self-sufficient. However, there is no question that her past and current responsibilities as Sophie's primary custodial parent give rise to a strong entitlement for spousal support.

The Respondent's Income

[27] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. Clause 19(1)(a) of the guidelines is perceived as being a test of reasonableness: Drygala v. Pauli, 61 O.R. (3d) 711.

[28] The test for imputing income for child support purposes applies equally for spousal support purposes: Rilli v. Rilli; Perino v. Perino.

[29] Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court's discretion must be grounded in the evidence: Drygala v. Pauli, supra, para 44.

[30] In this case, the parties agreed that the respondent's income for child support purposes is $43,600.00 in the Final Consent Order entered into January 30, 2012. I am unable to determine how I can impute an income different than that amount for spousal support purposes, despite both parties' submissions. Both parties, with independent legal advice, agreed to this amount, despite the respondent's historical income earning pattern, only five weeks before the argument of the temporary spousal support motion. There was evidence that the respondent income for 2012 will be reduced, based on the letter from his employer, which is presumably why the parties agreed to this amount.

[31] The respondent's submission that his income for 2012 should be projected at $38,400.00 is not reasonable. He has an obligation to earn what he is capable of earning for child and spousal support purposes. Further, the evidence of his current income in 2012, despite the time involved in these court proceedings and the sick days that he has taken, is significantly higher than the projection he claims. According to the respondent's paystubs, filed as an exhibit by the respondent, his 2012 year to date income up to and including February 19, 2012 was $5,901.00, which actually projects to an annual income of $43,836.00.

[32] In addition, the respondent's mother, Sophie's grandmother, can take Sophie to her medical appointments when Sophie is with the respondent during the 'week-about' parenting schedule commencing in September 2012, thereby eliminating the need for the respondent to take more time off work. In the affidavits filed by the respondent and his mother in these proceedings, both depose that the respondent's mother has been very closely involved in Sophie's care since her birth and that she is available on a full-time basis to assist the respondent in the day to day care for Sophie if necessary.

[33] I therefore determine that the respondent's 2012 income for temporary spousal support purposes to be $43,600.00, without prejudice to either party to provide further evidence and submissions regarding the respondent's income at a final hearing or trial, once a more fulsome evidentiary record is before the court.

Determination of Temporary Spousal Support

[34] The SSAG ranges in this case are $568.00 per month in the low range, $684.00 per month in the middle range and $800.00 per month in the high range.[1] A temporary order in the high range will leave the applicant and child with slightly more than 50% of the family's net disposable income (51.9%), based on the respondent's income of $43,600.00. This is a reasonable distribution given the length of the relationship, the needs of the parties and the child, as set out in their respective budgets, the disparity in the parties' incomes, and the following factors:

a) The applicant has a strong compensatory claim for support;

b) The applicant has no employment income and has been out of the waged workforce for approximately five years as a stay at home parent;

c) The applicant has primary care of a young severely disabled child with special needs which restricts her ability to find and maintain employment at the current time;

d) The applicant has limited earning capacity and may need to undertake further education or training in the immediate future towards self-sufficiency;

e) The applicant has compelling needs and standard of living. She is living below the poverty line;

f) The applicant has no assets or savings and there is no property to be divided.

[35] The respondent will be ordered to pay the applicant the sum of $800.00 per month for temporary spousal support. This sum will be tax deductible for the respondent and will be tax inclusive for the applicant.

Commencement Date

[36] In her notice of motion, the applicant asks that the support order be effective from January 1, 2012, shortly before the date the motion was commenced on January 10, 2012. This is a very reasonable request, given that the applicant issued her application on August 23, 2011 and the respondent has not paid any spousal support to the applicant since these proceedings were commenced, although the applicant has clearly been actively seeking it. Further, since the parties separated in March of 2011, the respondent has not voluntarily paid any spousal support to the applicant, despite the fact that she is unemployed, out of the waged work force for four years and caring for their disabled child without a source of income except government assistance. The respondent also did not pay any child support until May of 2011, although he did start making voluntary child support payments at that time. The respondent does state that he paid the applicant $2,200.00 when the parties separated in March of 2011, which is half of the income tax refund that he received for the previous year when the parties were together.

[37] The start date of January 1, 2012 is without prejudice to the applicant's claim for retroactive spousal support to the date of separation, which can be determined at a final hearing. Although retroactive support claims can arise out of a temporary motion, temporary motions are meant to put in place temporary measures pending a trial or a settlement. Requests for retroactive orders are more properly dealt with at trial or after a hearing where all relevant evidence can be adduced. See Hubbard (Gore-Hickman) v. Gore-Hickman, 2005 SKQB 265, paragraph 23.

Life Insurance, Medical and Dental Benefits

[38] Regarding the applicant's request for an order that the respondent maintain medical and dental benefits for her and for an order that he maintain a life insurance policy for her and the child, neither party filed any evidence that the respondent had a life insurance policy, as required under sections 34(1)(i) of the Family Law Act, R.S.O. 1990, c. F.3, and if not, the cost of obtaining one. Further, there was no evidence filed regarding whether the respondent was able to maintain the applicant on his current medical and dental benefits through his employment. The parties indicated that they may be able to resolve these issues, and given the limited evidence regarding both claims, I will adjourn these issues to be addressed at the next hearing date in these proceedings.

ORDER

[39] The respondent shall pay temporary spousal support to the applicant in the amount of $800.00 per month, commencing January 1, 2012. Temporary arrears are fixed at $3,200.00 and shall be payable at a rate of $250.00 per month, commencing May 1, 2012. However, if the respondent is more than 30 days late in making these payments or the ongoing support payments set out in this temporary order, then the entire amount of arrears shall immediately become due and payable.

[40] A Support Deduction Order shall issue.

[41] If either party seeks costs, he or she will file written submissions no later than thirty days from the date of this order. Any written response to be served and filed no later than twenty days from that date.

Released: April 24, 2012

Signed: "Justice Sheilagh O'Connell"

Footnote

[1] The applicant's SSAG calculations, based on the respondent's income at $43,600.00, were slightly higher because counsel described the parenting arrangement as "shared" in the calculation, and that the dependant child tax credit as being claimed by the respondent, although rotated by the parties. Once the parties start the shared parenting schedule, this scenario will apply, however, currently, the child's primary residence is with the applicant who is claiming the dependant child tax credit.