Court File and Parties

Court File No.: Halton 319/12 Date: 2013-02-13 Ontario Court of Justice

Between: Richard Randolph Andrew Burns Applicant

— And —

Angela Kathleen Margaret Krebss Respondent

Before: Justice Sheilagh O'Connell

Heard on: November 15, 2012

Reasons for Decision released on: February 13, 2013

Counsel:

• Richard Burns, acting in person
• Novalea M. Jarvis, for the respondent

O'CONNELL, J.:

1: INTRODUCTION

[1] The respondent, Ms Krebss, seeks spousal support from the applicant, Mr. Burns, in the amount of $1,354.00 per month. Mr. Burns opposes the claim on the basis that Ms Krebss is not entitled to spousal support because she is not a "spouse" under the Family Law Act.

[2] The issue in this case is whether Ms Krebss has standing to make a claim for spousal support.

Background

[3] Mr. Burns is 32 years old and Ms Krebss is 31 years old. The parties never resided together. They originally met approximately ten years ago when they worked together for a short period of time and became friends. They kept in casual contact since then and reconnected at a Halloween party on October 29, 2010. They were intimate on that occasion only and Ms Krebss became pregnant. Ms Krebss gave birth to Lennox Richard Eduard Krebss on July 27, 2011 ("Lennox"). When Lennox was approximately one month old a paternity test was conducted at Mr. Burns' request which confirmed that he was Lennox's biological father. Neither Ms Krebss nor the Applicant has any other children.

[4] Prior to the birth of Lennox, Ms Krebss was living in Toronto for one year while attending Humber College to complete a diploma in Recreation and Leisure Studies. She was employed part-time at the college as a computer lab monitor. Ms Krebss moved to her mother's home in Oakville shortly before Lennox's birth, where she and Lennox continue to reside.

[5] Mr. Burns lives in Toronto and works in Oakville at the Econo Group, where he earns approximately $67,000.00 per annum. Ms Krebss is currently a stay at home mother, although she is looking for employment in the recreation field as a life guard and swimming instructor. Her sources of income are the child support received from Mr. Burns in the amount of $618.00 per month and an additional $490.15 per month in child tax benefits for a total annual income of approximately $17,881.00.

[6] In November of 2011, the parties entered into mediation to try to resolve the custody, access and support arrangements for Lennox. However, the mediation failed and on July 10, 2012, Mr. Burns commenced this application seeking joint custody and a parenting schedule for Lennox. On August 8, 2012, Ms Krebss responded with her answer and claim, seeking sole custody and child support. At the same time, she brought an urgent motion seeking a temporary order permitting her to relocate to Owen Sound with Lennox. Ms Krebss did not seek spousal support initially in her answer and claim or urgent motion.

[7] The interim mobility motion was argued before me on August 28, 2012. I reserved my decision until August 29, 2012 and at that time, denied Ms Krebss' request to relocate with Lennox to Owen Sound on an interim and urgent basis. An expedited trial was scheduled and the issues of custody, access and mobility were referred to the Office of the Children's Lawyer for a social work investigation and report to the court.

[8] After Ms Krebss was unsuccessful on her interim mobility motion, she sought leave to amend her answer and claim to seek spousal support from Mr. Burns. Leave to amend was granted.

Ms Krebss Position

[9] Ms Krebss submits that when she originally filed her answer and claim, she believed that she would be able to relocate to Owen Sound to obtain employment, thereby enabling her to become self-sufficient. She submits that as a result of the August 29, 2012 court order denying her request to move to Owen Sound with Lennox, she has been unable to find employment in the Oakville, Toronto, Milton or Mississauga regions. Given the lack of employment opportunities near her residence, she seeks spousal support from Mr. Burns because she is unable to support herself and Mr. Burns has the ability to pay.

[10] Ms. Jarvis, on Ms Krebss behalf, submits that Ms Krebss meets the definition of 'spouse' for support purposes under section 29(b) of the Family Law Act because the parties were "in a relationship of some permanence" and they are the natural parents of Lennox.

[11] Ms Krebss requests an order for spousal support in the amount of $1,354.00 per month, which is at the Spousal Support Advisory Guidelines (SSAG) mid-level range, based on the following factors:

• a) she has no employment income;
• b) she has a limited earning capacity;
• c) she has compelling needs;
• d) she has been disadvantaged economically and financially as a result of having to remain in Oakville because Lennox is not permitted to move with her to Owen Sound;
• e) at present she is unable to contribute to her own support and she has not been able to do so since July 2012;
• f) there is no property to divide and no equalization payment or claim;
• g) the responsibility for caring for Lennox has impacted her ability to earn income.

Mr. Burns' Position

[12] Mr. Burns submits that Ms Krebss is not entitled to spousal support because she does not meet the definition of "spouse", as defined under the Family Law Act. He submits that the parties were never married, they never cohabited, and they were not dating. According to Mr. Burns, they essentially had a 'one night stand' which resulted in Lennox's birth. Although Mr. Burns understands that he is obligated to support Lennox and to pay child support to Ms Krebss, he submits that he is not obligated to pay spousal support. He further submits that Ms Krebss did not make an "honest" effort to find employment in the greater Toronto and Mississauga regions and that she sought to relocate to Owen Sound to further restrict his access to Lennox.

2. THE LAW AND ANALYSIS

[13] Section 30 of the Family Law Act, R.S.O. 1990, c. F.3, as amended, (the "Act") provides that "every spouse has an obligation to provide support for himself or herself and for the other spouse in accordance with need, to the extent that he or she is capable of doing so." Section 33 of the Act permits a spouse to apply for support and authorises the court to determine the amount of support. Section 34 of the Act sets out the different kinds of orders for support a court can make.

[14] The purposes of an order for spousal support are set out under sub-section 33(8) of the Act. An order for spousal support 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). R.S.O. 1990, c. F.3, s. 33(8); 1999, c. 6, s. 25(5); 2005, c. 5, s. 27(9).

[15] "Spouse" is defined under sections 1(1) and 29 of the Act. Section 1(1) provides that a "spouse" means either of two persons who are married to each other, or have together entered into a marriage that is voidable or void in good faith on the part of the person relying on this subsection to assert a right. The definition of spouse is expanded under section 29 to include the following for the purposes of spousal support:

"spouse" means a spouse defined in subsection 1(1), and in addition includes either of two persons who are not married to each other and have cohabited,

a) continuously for a period of not less than three years, or

b) in a relationship of some permanence, if they are the natural or adoptive parents of a child." R.S.O. 1990, c. F.3, s. 29; 1999, c. 6, s. 25(2); 2005, c. 5, s. 27(4-6); 2009, c. 11, s. 30.

[16] The test for finding entitlement to spousal support on an interim motion where the factual underpinning must be left to a trial judge is set out by MacDougall J. of the Ontario Court (General Division) in Robertson v. Hotte (1996), 21 R.F.L. (4th) 452 (Ont. Gen. Div.) at page 454:

"On an interim or temporary motion for support, the cases support a four-step analysis which concentrates on the parties' needs and means:

a. Does the Applicant have standing to claim support?

b. Is the Applicant entitled to the support?

c. What are the dependent's needs?

d. Does the payer have the ability to pay?"

[17] As set out above, in an application for spousal support the court must initially determine whether the applicant has standing to seek support. If there is no standing, there is no need to consider entitlement, form, duration and quantum. In a motion for temporary relief, while the court will not be able to conduct a similar in-depth analysis of the facts that may be possible at trial, it is still necessary for the party seeking relief to make out a good, arguable case for the relief sought. This would include making a good, arguable case for standing. See Sturgess v Shaw [2002] O.J. No. 2250, Robertson v. Hotte (1996), 21 R.F.L. (4th) 452 (Ont. Gen. Div.), [Ferreira v. Ferreira [1998] O.J. No. 3302 (Ont. Court of Justice (General Division))].

[18] It is not disputed that the parties are the natural parents of a child. Ms Krebss, to be a spouse as defined under s. 29 of the Act, must also establish that the parties have cohabited in "a relationship of some permanence". "Cohabit" is defined under sub-section 1(1) of the Act as meaning "to live together in a conjugal relationship, whether within or outside marriage".

[19] The statute and case law are clear that both the preconditions of cohabitation and a relationship of some permanence must be present to meet the definition of spouse under section 29(b) of the Act. In Molodowich v. Pettinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.) Justice Kurisko sets out the factors and issues that a court must consider in making a determination of whether two parties meet the definition of "cohabit" under the Act:

Molodowich Test Factors

1. Shelter:

• (a) Did the parties live under the same roof?
• (b) What were the sleeping arrangements?
• (c) Did anyone else occupy or share the available accommodation?

2. Sexual and Personal Behaviour:

• (a) Did the parties have sexual relations? If not, why not?
• (b) Did they maintain an attitude of fidelity to each other?
• (c) What were their feelings toward each other?
• (d) Did they communicate on a personal level?
• (e) Did they eat their meals together?
• (f) What, if anything, did they do to assist each other with problems or during illness?
• (g) Did they buy gifts for each other on special occasions?

3. Services:

• What was the conduct and habit of the parties in relation to:
  • (a) preparation of meals;
  • (b) washing and mending clothes;
  • (c) shopping;
  • (d) household maintenance; and
  • (e) any other domestic services?

4. Social:

• (a) Did they participate together or separately in neighbourhood and community activities?
• (b) What was the relationship and conduct of each of them toward members of their respective families and how did such families behave towards the parties?

5. Societal:

• What was the attitude and conduct of the community toward each of them and as a couple?

6. Support (economic):

• (a) What were the financial arrangements between the parties regarding the provision of or contribution toward the necessaries of life (food, clothing, shelter, recreation, etc.)?
• (b) What were the arrangements concerning the acquisition and ownership of property?
• (c) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?

7. Children:

• What was the attitude and conduct of the parties concerning children?

[20] Ms. Jarvis, on behalf of Ms Krebss, argues that the result in Robertson v Hotte, supra, is applicable to this case. However, the facts in Robertson v Hotte are substantially different. In that case, the parties had a relationship that lasted over twenty years that resulted in the birth of three children. Both parties admitted that there were several periods of cohabitation, separations and reconciliations over the twenty year relationship, although they disagreed about the length of cohabitation and the final date of separation. The parties had also entered into a domestic contract that was vague regarding the issue of spousal support and entitlement. The court found in that case that the applicant had made out a good and arguable case that she met the definition of spouse and upheld the lower court's decision to award interim spousal support pending trial. At the very least, the court found that the standing to claim spousal support was a triable issue.

[21] In Sturgess v Shaw, [2002] O.J. No. 2250 (S.C.J.), the parties were involved in a lengthy affair for twenty years and had one child. The parties never lived together and they maintained separate residences. The child primarily resided with the applicant and the respondent remained living with his wife. In dismissing the applicant's motion for spousal support, the court stated the following at paragraph 18 of that decision:

"While the parties spent considerable time together, the facts as presented do not constitute living together, a condition of "cohabit" as defined in the Act and a precondition of meeting the extended definition of spouse set out in s. 29. As stated by Jarvis, J. at p. 359 of Nowell v. Town Estate, supra, "Consenting adults with separate residences, who visit one another, cannot be said to cohabit". The Applicant has failed to provide a good, arguable case for meeting the extended definition of spouse and therefore she has not met the test of standing for this motion for temporary relief."

[22] Here, I have no hesitation in finding that Ms Krebss has not made out a good or even arguable case for standing to claim spousal support. In the case before me, the parties never lived together. They did not have a relationship at all, let alone one of "some permanence". Both parties concede that they were intimate on one occasion only at a party and that they were not even dating. They were casual friends who reconnected at a party after working together ten years previously.

[23] Undoubtedly, the outcome of the parties' one intimate encounter on the night of October 29, 2010 has fundamentally changed both parties' lives forever, and in particular, Ms Krebss. Ms Krebss' pregnancy, the birth of Lennox, and her child care responsibilities have had an impact on her ability to find and maintain employment. However, the parties' decision on that fateful night does not entitle Ms Krebss to spousal support. The purpose of spousal support is to recognise the economic consequences arising from the spousal relationship itself, and the impact of the breakdown of the spousal partnership on both parties. Here, there was simply no spousal relationship.

[24] It is hoped that as the parties move forward, subject to Lennox's needs and best interests, Mr. Burns will share more in the child care responsibilities while continuing to provide adequate child support to Ms Krebss, thereby assisting her to stabilize her employment situation.

3: FINAL ORDER

[25] For the above reasons, the motion for spousal support is dismissed.

[26] If either party seeks costs, then they shall serve and file costs submissions, with a bill of costs and offers to settle attached, within 20 days. Any written response to costs submissions shall be served and filed within 14 days.

Released: February 13, 2013

Signed: "Justice Sheilagh O'Connell"