Court File and Parties

Ontario Court of Justice

Date: 2014-08-11

Court File No.: Goderich 13-36

Between:

AMBER LEE FEENEY Applicant

— AND —

KYLE ANDREW BROWN Respondent

Before: Justice Brophy

Heard on: 15 July 2014

Reasons for Ruling on Motion for Temporary Spousal Support

Released on: 11 August 2014

Counsel:

• Mary E Cull, for the Applicant
• Timothy G Macdonald, for the Respondent

BROPHY J.:

INTRODUCTION

[1] This is a motion for temporary spousal support. The main action was commenced on March 25, 2013. Both parties were represented by counsel from the outset and negotiations have been under way for some time.

[2] This motion for interim relief was brought by the applicant on October 16, 2013. The applicant sought an order for temporary spousal support retroactive to May of 2013 and ancillary orders dealing with section 7 expenses and the maintaining of extended health care benefits related to the child of the couple.

[3] Again extensive negotiations took place and the motion was not brought on for argument until July 15, 2014.

[4] It should be noted that the respondent brought a motion on May 6, 2014 for temporary unsupervised access. The access question has apparently been resolved for the time being and the motion for access that was otherwise scheduled to be argued on July 15 was not argued.

ISSUES

[5] The respondent concedes that there is an entitlement to spousal support given the fact that the applicant needs to devote herself to a very young and fragile child's care.

[6] The issue therefore with respect to the temporary spousal support in this case is quantum and that is dependent upon the level of income of the respondent and the applicant, and also the guidance that is offered in the Spousal Support Advisory Guidelines. The income of the respondent is the key question as the mother's income is relatively low, as might be expected, given that she cannot work and has no other obvious resources. Embedded in the question of the respondent's income is the issue of whether or not additional income should be imputed to him as a result of benefits he receives at his place of employment.

FACTS

[7] The applicant was born in 1987 and is 26 years old. The respondent was born in 1986 and is 27 years old. They began living together in 2005 and after a number of separations and reconciliations separated on a final basis in June 2012. Both parties reside in the Seaforth area.

[8] They have one child, Charlie Elizabeth Brown, who was born September 14, 2011. Unfortunately Charlie has dystonic cerebral palsy with uncontrolled epileptic seizures and cortical visual impairment. The result is that the child is blind, will not be able to walk, and at this point is fed through a tube. As a result she needs constant care and the applicant is the person who is primarily responsible for providing that care. She is assisted by her mother and many healthcare providers.

[9] The respondent indicates that he has been faithful in exercising access with Charlie. The access for long time took place at the supervised access program with the mother of the applicant assisting the respondent in terms of caring for Charlie during those access visits. More recently the access has taken place in the home of the applicant with again the mother of the applicant supervising and training the respondent in the appropriate techniques required to care for the child.

[10] The respondent has been seeking unsupervised access and to further that plan his mother has been attending access visits as well for the purpose of learning how to care for Charlie. As I have indicated it would appear that some compromise has been arrived at with reference to access.

[11] The Respondent has paid to the Applicant $543.00 per month for child support on a voluntary basis starting in May of 2013. He has also paid to the applicant $260.00 per month on account of section 7 expenses. This began in November 2013 and has continued to date. The respondent has also maintained an insurance program at his place of employment for extended health care benefits that has been of significant assistance. The total cost of that program is $448.00 per month, one half of which paid by his employer and the other half is deducted from the respondent's his paycheck. It should be noted as well that when the respondent was laid off from his employment in November of 2013 for several months he paid the full amount of the $448.00 premium to ensure that the benefits would remain available.

[12] The work history of the respondent has been solid. He has worked for the same trucking company for a number of years and has earned a substantial income. He has also received a number of non-taxable benefits. As mentioned he was laid off in November of 2013 and did not expect go back to work until the spring of 2014 and briefly took employment with another company. However his traditional employer called him back to work near the end of January 2014.

[13] The non-taxable benefits include the provision of a cell phone and in 2013 the use of the company truck.

[14] The basic income of the Respondent is reported to be $51,079.00 in 2013. The income of the Respondent for 2014 is in dispute. The Applicant projects it to be once again $51,079.00. The respondent disputes that estimate for 2014 and suggests that his income for 2014 will be much less. This is based upon changes in the company that he worked for, which has downsized, and where he is now employed at $19.00 per hour for approximately 35 hours per week. This would produce an annual income of approximately $34,580.00. If that number is accepted it would dramatically reduce his child support obligation and consequent numbers.

[15] The applicant also argues that there should be an imputing of additional income to the Respondent him related to the non-taxable benefits that he receives. The court is asked consider that the cell phone he has the use of attracts a benefit to him of $80.00 per month or $880.00 for 11 months in 2013 and the same amount for 2014. In 2013 he had available to him a company vehicle and it is argued that he received a personal advantage in not having to pay for vehicle insurance for a private vehicle. The amount assigned to that benefit is $220.00 per month for 11 months or $2,420.00. The same argument is made with reference to the use of gasoline at $200.00 per month for 11 months totaling $2,200.00. Extending that argument it is also suggested that he was not required to pay for vehicle maintenance costs and there is an arbitrary allocation of $500.00 for the 11 months in 2013 with respect to same. Finally the applicant argues that the insurance benefits where he receives the advantage of having $224.00 per month paid by his employer on account of the premium for the extended health care insurance should be charged as a benefit to the Respondent and in 2013 that had a value of $2,464.00. The applicant then says that the total non-taxable income for 2013 is $8,464.00.

[16] The same analysis is applied to 2014 with some modifications. It is the same calculation with reference to the cell phone and the insurance benefits. Apparently a motor vehicle is still available at work and consequently he has some residual benefits related to same, although that argument is not on the same footing is in the year 2013, with the difference being that in 2014 he owned a personal vehicle but still had available to him a company vehicle. The calculations suggested by the applicant are that his total non-taxable income in 2014 was therefore $6,594.00.

[17] All of this in the submission of the applicant produces, after a gross up for the non-taxable benefits, a total income in 2013 of $63,372.00 and in 2014 of $60,656.00.

[18] The financial circumstances of the applicant are not good. She has not finished high school and is not employed. The lack of employment is because of the requirement that she look after Charlie. Her income consists of the child support in the amount of $546 per month and the section 7 expenses payment in the amount of $260 per month and effectively the $224 per month that is paid by the respondent on account of the extended health care insurance at his place of employment. This means that she has child-support income of approximately $1010 per month. In addition she receives government benefits and credits with respect to Charlie in the approximate amount of $826 per month and that Charlie receives a disability payment of $460 per month that is used on account of her expenses. All of this produces a basic income of $2296 per month or $27,552 per year. These numbers are subject to change but they roughly capture the current financial situation of the applicant.

LAW

[19] The reasons of Justice O'Connell in the case of Dupuis v. Desrosiers, 2012 ONCJ 261, in paragraphs 17 through 22, provide a helpful overview of the objectives and methodology related to spousal support.

[20] This case falls into the non-compensatory category of spousal support based on need. See Bracklow v Bracklow, [1999] 1 S.C.R. 420. Non-compensatory support may be ordered "where it is fit and just to do so." See Poirier v. Poirier, 2010 ONSC 920. This is acknowledged by the respondent when he indicates that entitlement is not in issue.

[21] Arguably compensatory support might be an issue at trial – but that remains to be seen. On the motion it is sufficient to recognize that support based on need is appropriate.

[22] Paragraph 21 of Dupuis sets out a summary of principles related to temporary spousal support:

In Decker v. Fedorsen, 2010 ONCJ 618, Justice Stanley Sherr summarizes the following principles applied, as set out in Kowalski v. Grant, 2007 MBQB 235 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.

[23] With respect to the Spousal Support Advisory Guidelines Justice O'Connell also notes:

The Court of Appeal in Fisher v. Fisher, 2008 ONCA 11, 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.

[24] Finally it is clear that the imputation of income is available on a motion for temporary spousal support. See Dupuis v Desrosiers, ibid, paragraph 33.

ANALYSIS

[25] Counsel for the applicant and the respondent have provided me with five different sets of calculations from the Divorcemate software related to spousal support.

[26] As might be expected the applicant has produced calculations based upon the grossed up income for 2013 of $63,372.00 and for 2014 of $60,656.00. For 2013 the Divorcemate calculations suggest spousal support at the low end of $712.00 per month and at the high-end of $995.00 per month. For 2014 the low number is $655.00 per month and the high number is $927.00 per month.

[27] The respondent has produced Divorcemate calculations showing income at $34,600.00, $39,520.00 and $51,079.00. At the lowest income the spousal support would be virtually nil at the low end and $205.00 at the high-end. At the $39,520.00 level the spousal support would range from $104.00 to $330.00. At the income level of $51,079.00 the spousal support would range from $344.00 to $613.00. The midrange level of spousal support at the $51,079.00 level of income would be $477.00.

[28] There are two countervailing issues.

[29] The respondent argues that his income will be greatly reduced in 2014 to the point where it might drop as low as approximately $34,600.00. There are two problems with that argument. The first is that it is an estimation only and is not based upon the respondent's personal history. He has been well employed in the past, has particular skills as a truck driver, and has proven to be industrious. He acknowledges his responsibility for Charlie and indeed is highly motivated to do his best to provide for her care. If the work available to him at his current employer simply will not maintain the same level of income then there will be an obligation on him to seek better employment. Further as has been stated in argument the actual experience at work may change over time depending upon how busy the company is and perhaps seasonal aspects of their business activity.

[30] In my view it is wiser to follow the pattern that was previously established of income in the $50,000.00 range. It is acknowledged that his income may slip, but as this is an order for temporary spousal support in my view it should be based upon the facts that are available and when the final order is made there will be better data. I am therefore of the view that the basic income of the respondent in 2013 and 2014 should be set at $51,079.00.

[31] On the other hand - to reach the high levels of income suggested by the applicant requires the imputing of significant income related to non-taxable benefits.

[32] The non-taxable benefits that have been identified can be broken into three groups. The first is the cell phone for which we have some specific information from the employer who estimates the value at $180.00 per month. It seems reasonable to assign $80.00 per month as a distinctive credit going to the respondent.

[33] The next group of benefits relate to the company provided motor vehicle. The values assigned to the alleged benefits however are completely arbitrary and require better proof before they can be accepted. I will not on this temporary motion add those to the income of the respondent. It would be unsafe to do so in the absence of more developed and definitive evidence.

[34] Finally there is the assignment of one half of the premium for the insurance benefits that are paid by the employer at $224.00 per month. However the evidence I have is that the benefits are maintained by the respondent to ensure that Charlie receives the assistance offered by that extended health care insurance. It cannot be said that the employer's payment of one half of the premium is of direct benefit to the respondent. Clearly it has an indirect value to him because it allows him to make a significant contribution to the well-being of Charlie. However it would be unfair in my view to impute the value of the employer's contribution as additional income to the respondent. The importance of the insurance benefits program with respect to the child is illustrated by the fact that when the respondent had been laid off he paid the total premium himself to ensure that Charlie would continue to receive those benefits. The focus of those benefits is Charlie - and they do not accrue to the respondent personally in any significant manner.

[35] Therefore I am prepared to add only the value of the cell phone at the rate of $80.00 per month to the income of the respondent in each year. This means that the income of the respondent for 2013 and 2014 will be $51,959.02.

[36] In looking at the calculations that have been provided I am of the view that the appropriate spousal support should be $550.00 per month. This is based upon the Divorcemate calculations reflecting the basic income of $51,079.00 and electing to use the midpoint between the midrange number of $477.00 per month and the high-end number of $613.00 per month. The purpose in selecting $550.00 per month on account of temporary spousal support is to allow for the additional imputed income of $880.00 per year in each of those two years and to acknowledge the difficult financial circumstances of the applicant and the heavy demands made upon her by Charlie's medical circumstances.

[37] The applicant seeks retroactive spousal support commencing May 2013. It would appear that date was chosen because the Application was first returnable on May 7, 2013 notwithstanding that the couple had separated in June of 2012. However the motion for spousal support was not before the court until October of 2013. I am of the view that the temporary spousal support in the amount of $550.00 per month should commence November 1, 2013.

[38] That start date is without prejudice to the applicant's claim for retroactive spousal support to either the date of separation or the commencement of the proceedings. This can best be determined at a final hearing where all relevant evidence can be adduced. See Dupuis v Desrosiers, ibid., paragraph 37.

[39] The temporary spousal support arrears are therefore fixed at $5,500.00 for the 10 months from November 1, 2013 to August 1, 2014 at $550 per month. They are payable at the rate of $250.00 per month commencing September 1, 2014.

BALANCE OF THE MOTIONS

[40] The arguments made on July 15, 2014 dealt only with the interim spousal support issue. There was no motion related to child support, nor was it necessary, because the child support was being paid on a voluntary basis in an amount approximating the child support guideline payments. The motion in front of me however did go on to request orders concerning section 7 expenses, the maintenance of the child on the extended health care benefits available through employment, and ancillary orders with reference to notification of any interruption of insurance coverage, a requirement that the respondent paid special expenses for the child within 14 days of receiving notice from the applicant, a requirement that the respondent designate the applicant has beneficiary of his life insurance policy, and a requirement that the respondent immediately turn over to the applicant any insurance reimbursement cheques. Those issues were not the focus of the argument on July 15, 2014.

ORDERS

[41] It is therefore ordered that:

(a) The balance of the motion at tab 9 of the continuing record is adjourned to August 12, 2014 at 10 AM to be spoken to.

(b) The motion at tab 14 with respect to access is adjourned to that same date to be spoken to.

(c) The respondent shall pay temporary spousal support to the applicant in the amount of $550.00 per month commencing November 1, 2013.

(d) Arrears of the said spousal support from November 1, 2013 to August 1, 2014 are fixed at $5,500.00 and the respondent shall pay the temporary spousal support arrears at the rate of $250.00 per month commencing September 1, 2014.

CONCLUSION

[42] It is again noted that this is a temporary order only and that it is expected that the parties will endeavor to negotiate a resolution of all of the issues that are outstanding. In the event of that cannot be achieved then the final orders will be made after receiving all of the appropriate evidence at trial.

[43] If either party seeks costs, he or she will file written submissions not later than 30 days from the date of this order. Any written responses to be served and filed no later than 20 days from that date.

Released: 11 August 2014

Signed: "Justice Brophy"