Court File and Parties

Date: December 21, 2015

Court File No.: Brampton 10016/15

Ontario Court of Justice

Between:

Chrystal Dawn Cockerham Applicant

— And —

Kristopher Ryan Hanc Respondent

Before: Justice A.W.J. Sullivan

Decision pursuant to the Interjurisdictional Support Orders Act [S.B.C. 2002, c. 29]. ISAO

Released on: December 21, 2015

Counsel:

• Self Represented — counsel for the Applicant
• Mr. C. Burrison — counsel for the Respondent

SULLIVAN J.:

[1] Application Overview

This is the decision in the application filed by Ms. C. Cockerham, the Applicant, for support in the amount of $2,500.00 per month commencing March 1, 2014. Ms. Cockerham resides in Kamloops, British Columbia. Ms. Cockerham has a medical degree from the University of Sint Eustatius in the Caribbean. Currently she is not licensed to practice in either Canada or the United States. Her medical degree is recognized both in Canada and the United States. She is currently residing with family in Kamloops, British Columbia.

[2] Respondent's Position

The Respondent, Mr. K. Hanc, resides in Mississauga, Ontario. He is a practicing lawyer and a partner in a Toronto law firm. He opposes Ms. Cockerham's support claim, indicating that she is capable of working and asked the court to deny this claim. Mr. Hanc argues that the parties did not live together for the qualifying period of time under the legislation as a common-law couple. In the alternative, Mr. Hanc states that Ms. Cockerham is capable of supporting herself, she was employed in the past, and Mr. Hanc is asking the court to impute income to her in the amount of $90,000.00 per year. Mr. Hanc further requests that this court consider, as a set-off against any support order that may be granted, the monthly payments that he is making towards a line of credit which he argues is Ms. Cockerham's sole responsibility.

[3] Procedural Framework

The support application by Ms. Cockerham is filed pursuant to the Interjurisdictional Support Orders Act [S.B.C. 2002, c. 29]. ISAO. The hearing of this matter was held in chambers considering the pleadings filed in the continuing record in volumes 1, 2, and 3, specifically:

A – Support application volume 1, tab 1.

B – Requests for support order form F, volume 1, tab 2.

C – Support for claimant form J volume 1, tab 3.

D – Financial statement Applicant volume 1, tab 4.

E – Affidavit general Applicant volume 1, tab 5.

F – Form 37 notice of hearing, volume 1, tab 6.

G – Affidavit of service and information sheet – volume 1, tabs 6 and 7.

H – Answer – Respondent, volume 2, tabs 1.

I – Affidavit of service x2 from Respondent volume 2, tab 1.

J – Notice of motion Respondent October 13, 2015 volume 2, tab 2.

K – Affidavit general from Respondent volume 2, tab 3.

L – Financial statement Respondent volume 2, tab 4.

M – Affidavit general Applicant October 19, 2015 volume 3, tab 1.

N – Affidavit general Respondent October 22, 2015 volume 3, tab 2.

O – Affidavit general Applicant October 26, 2015 volume 3, tab 3.

[4] Applicable Law and Jurisdiction

In this ISOA application Ms. Cockerham relies on the law in Ontario dealing with support issues. As this is a new application, with no previous orders being made, part two of ISOA will be referenced as well as rule 37 of the Ontario Family Law Rules. Both set out the procedure where no support orders previously exists and a claimant in a reciprocating jurisdiction seeks spousal support from the Respondent ordinarily resident in Ontario, which is the case in this matter.

[5] Family History

In Ms. Cockerham's Application under the section entitled "family history section" she claims that the parties were living together from August 2007 through to the date of separation being February 22, 2014.

[6] Common-Law Status

In reviewing the exchange of pleadings in the file, the parties were common-law and never married. The law therefore that will be relied on in this court's jurisdiction is the Family Law Act (FLA).

[7] Prior Proceedings

In 2014 Ms. Cockerham started a claim for spousal support in the Supreme Court of British Columbia. That action was dismissed based on that court's finding that the jurisdiction of convenience was in Ontario; hence this application pursuant to the Interjurisdictional Support Orders Act was commenced.

Issues

[8] Issues to be Decided

This Application presents the following issues to be decided:

i. The Applicant's entitlement to spousal support.

ii. If entitlement is established, what should the quantum of support be, considering the Applicant's ability and efforts to support herself and whether income should be imputed to her?

iii. If support is granted, can this court set off any third-party payments; specifically a bank loan, and can this court classify these loan payments as taxable support payments?

[9] Support Application Details

The application is for spousal support in the amount of $2,500.00 per month commencing March 1, 2014. Ms. Cockerham indicates that she and the Respondent began living together in August 2007 and separated in February 22, 2014.

[10] Respondent's Notice of Motion

Mr. Hanc has answered this application. In addition, he has filed a notice of motion, found at volume 2, tab 3, and an affidavit in support dated October 13, 2015, reinforcing his opposition to this application and requests the following orders:

1. An order striking paragraphs 18, 19 and 26 of the June 18, 2015 affidavit of the applicant.

2. An order that the Applicant is not entitled to spousal support and that the application be dismissed.

3. In the alternative to paragraph 2 that if this court determines the Applicant is entitled to spousal support, then an order that income shall be imputed to the Applicant.

4. That if the court finds that the Applicant is entitled to spousal support, then an order that the debt payments that the Respondent makes to RBC on behalf of the Applicant shall be offset in full from any support order that this court makes, retroactive to January 2015 and, if necessary, an order that those loan payments shall be taxable to the Applicant and tax-deductible to the Respondent, retroactive to January, 2015, pursuant to section 56.1 (2) and 60.1 (2) of the Income Tax Act, and costs for full recovery basis.

[11] Applicant's Response

Ms. Cockerham responded to this notice of motion with an affidavit dated October 19, 2015, found at volume 3, tab 1.

[12] Reply Affidavits

Mr. Hanc filed a reply affidavit dated October 22, 2015, volume 3, tab 2, and the Applicant filed a further affidavit dated October 26, 2015, volume 3, tab 3.

[13] Procedural Considerations

At this point in the decision I wish to review the ISOA procedure. It is not usual for the court to have the exchange of affidavits to the extent that this file has received. I have permitted, according to the Family Law Rules, the exchange of affidavits in support and in response and final reply to the notice of motion filed by the Respondent in this matter found at volume 2, tab 2.

[14] Applicant's Final Affidavit

The last affidavit of the Applicant found at volume 3, tab 3 has been permitted, not so much as a further response to the motion but rather as part of the Applicant's initial application.

[15] Consideration of Evidence

The relevant facts from the each of the affidavits has been considered by the court and reviewed below. These facts are the principal facts that concern the court in this matter.

[16] Striking of Paragraphs

In Mr. Hanc's notice of motion there is a request for this court to strike paragraphs 18, 19 and 26 of the Applicant's initiating affidavit dated June 18, 2015 volume 1, tab 5. I have reviewed those paragraphs and consider the content to touch on discussions regarding potential settlement offers and according to the Rules these paragraphs will be struck. Therefore, I have not considered this information.

[17] British Columbia Affidavits and Decision

In addition, both the Applicant and the Respondent have filed affidavits that they had filed in the British Columbia proceeding. They make reference to these earlier affidavits and respond to comments of each other from these earlier affidavits in this proceeding. Also filed with this court was the decision from the British Columbia court. I will accept the affidavits filed in the B.C. action as sworn statements by each party in this proceeding, as both parties have referenced these earlier affidavits. The decision from the Superior Court, British Columbia has no weight in the considerations and findings in this decision. This court has relied on the material filed as noted above in making its own findings on this evidence.

Facts in Dispute

Entitlement to Support; Classification of Relationship

[18] Duration of Cohabitation – Applicant's Position

In the Applicant's Form J, Ms. Cockerham claims that the total years of cohabitation with the Respondent were six years and six months.

[19] Duration of Cohabitation – Respondent's Position

Mr. Hanc claims the parties began living together in the fall of 2007 and had two periods of separation over the next 2 ½ years, the first being in January 2009 for about 3 to 4 months and again in the summer of 2010. His evidence is that when the parties reconciled in mid-2009 it lasted for one year when they again separated in 2010.

[20] Applicant's Characterization of Relationship

Ms. Cockerham's evidence is that their relationship was continuous from August 2007 through the separation on February 22, 2014. She classifies this relationship as marriage-like and points out that the Respondent proposed marriage in December 2011 at which time the parties were engaged. An engagement ring was exchanged.

[21] Applicant's Educational Pursuits

In January 2011 she pursued her medical education in the Caribbean at which time they were apart in distance only but, according to her, she maintained her address at Mr. Hanc's Toronto condominium and she was devoted to their relationship.

[22] Applicant's Domestic Contributions

Ms. Cockerham's evidence is that they were known publicly as a couple and that Mr. Hanc referred to her in social media texts as his wife. She argues that they shared most expenses and household bills and they would take turns paying for restaurant meals that were over a certain price and they often ate out. Ms. Cockerham claims she paid for groceries, household supplies, and frequently traveled to markets to obtain specific food ingredients for meals she prepared. She also assisted in ironing the Respondent's shirts, polished his shoes, and paid at times condominium fees. She notes that she assisted in purchasing a Mercedes vehicle, providing a $5,000.00 down payment on her Visa credit card towards this purchase and had installed custom closets in the Toronto condominium.

[23] Respondent's Appreciation of Domestic Services

According to Ms. Cockerham, Mr. Hanc told her when she was not working that he enjoyed having her home to assist with cooking, cleaning and running various errands for him. She indicates that he had texted friends and sent photographs with statements like "look what Mr. Hanc has made for dinner".

[24] Respondent's Characterization of Relationship

Mr. Hanc's description of the relationship is contrary to that of the Applicant, indicating that there were periods of separation where Ms. Cockerham had removed her belongings and changed her mailing address with Canada Post. He indicates that he typically paid for his own expenses and, on occasion, he paid for meals while dining out with the Applicant. He states that they made their own financial decisions and were not financially responsible for each other in any way. He states that the Applicant, at one point, paid him rent while residing at his condominium from 2007 to sometime in early 2010.

[25] Applicant's Employment History

Mr. Hanc notes that Ms. Cockerham worked as an investor relations manager at a public trading pharmaceutical company, named Transition Therapeutics. Mr. Hanc describes the Applicant as ambitious and hard-working and that Ms. Cockerham had changed jobs without difficulty when they were together.

[26] Respondent's Account of Relationship Duration

According to Mr. Hanc, their relationship existed principally between December 2010 to January 2014. During this period of time, specifically in January 2011, the Applicant left Toronto for medical school in the Caribbean which lasted until April 2012. During this time Mr. Hanc did visit Ms. Cockerham twice during this 16 months of study each time for a few days and the Applicant returned to Toronto twice during this period to visit with Mr. Hanc.

[27] Respondent's Account of Separation Periods

Mr. Hanc testifies that after this Caribbean period of study, the Applicant then went on to complete a 17-month period of clinical studies in the United States from October 2012 until December 2013, during which there was again two periods of vacation, in which he visited her on two occasions, and she visited him on two occasions. Mr. Hanc argues that in effect, the relationship was less than three months between January 2011 when the Applicant commence medical school to December 2013 when she completed her clinical studies in the United States.

[28] Applicant's Reply to Respondent's Characterization

To this, Ms. Cockerham replies that Mr. Hanc is misleading in his characterization and length of the relationship. She characterizes the relationship as a very traditional one. She underlines the fact that she cooked, cleaned and maintained the household doing laundry, ironing, sewing and errands. From her perspective they lived together for nearly seven years in a committed and monogamous relationship in which they were engaged for three years and had planned to get married and have children.

[29] Respondent's Reply to Applicant's Characterization

Mr. Hanc, in his reply affidavit of October 22, 2015, points out that as the Applicant was at school and out of Canada, she could not have played the role that she claims she had as a homemaker, in particular between January 2011 and December 2013. He also points out that the email exchanges were quite limited, with only two referenced in the Applicant's evidence, and further that the Applicant does not deny that there was a period of separation. Mr. Hanc further underlines the fact that he did not financially support the Applicant other than a loan with the Royal Bank of Canada (RBC).

[30] Applicant's Evidence of Continuous Relationship

In Ms. Cockerham responding affidavit, dated October 19, 2015, which is in reply to Mr. Hanc's motion, she indicates in paragraph 9 that her email records are her evidence that in 2009 and 2010 the relationship did not end and they talked continuously and made purchases together, booked restaurants, traveled and reviewed MLS listings for homes that they were considering purchasing, and as well discussed the type of engagement ring to purchase before the proposal.

[31] Applicant's Financial Contributions

In paragraph 10 of this October 19, 2015 affidavit, Ms. Cockerham further notes that she paid monthly parking and condo fees using her chequing account in 2008 and 2009 and provided her visa statement, specifically the $5,000.00 deposit on the purchase of a Mercedes car that she assisted Mr. Hanc in purchasing. She further notes that the Respondent supported her financially in various ways with housing, meals, clothing and gifts, and provided her cash and with vacations as well as secured the RBC loan that assisted her in pursuing her medical degree.

[32] Respondent's Support for Applicant's Education

According to Ms. Cockerham it was the Respondent who wanted her to obtain a profession and not simply have a job, and encouraged her and financially supported her with her education.

[33] End of Relationship and Subsequent Events

Upon the Applicant's return in December 2013 the relationship ended shortly thereafter in early January 2014. The Applicant remained at the Toronto condominium until December 2014 and completed an elective course at a Toronto hospital at which time Mr. Hanc moved to a home he purchased in Mississauga.

RBC Loan

[34] RBC Loan – Common Ground

Regarding this loan, the common evidence between the Applicant and the Respondent is they co-signed for it. The initial amount, in and around December 2010 when the Applicant asked for the Respondent's assistance in securing this loan, was for $150,000.00. The Respondent indicates that he recognized Ms. Cockerham needed the funds to pay for her education to advance her career. Mr. Hanc indicates that despite "the tenuousness" of their relationship he recognized the Applicant is intelligent and would ultimately be successful and therefore assisted in co-signing this RBC loan.

[35] RBC Loan – Respondent's Position

Mr. Hanc argues that this loan is the Applicant's sole responsibility and was always from his perspective her responsibility "no matter what happened". In March 2013 this loan was increased by an additional $50,000.00 for a total of $200,000.00.

[36] RBC Loan – Applicant's Position

Ms. Cockerham, in her evidence, does recognize that this loan was taken out in part for her education, but argues that it was also used to assist in the lifestyle and expenses for them both as a couple.

[37] RBC Loan – Use of Funds

Mr. Hanc argues that at no time did he debit this loan for his own personal use. Ms. Cockerham argues that the parties talked about rolling this loan into a mortgage as a way of future payments. Ms. Cockerham indicates that the loan was used over three years for many things, in addition to her education such as mutual gifts, dining and traveling, as well as her housing, clothing and groceries.

[38] Applicant's Stated Intention Regarding Loan

In paragraph 22 and 23 of the Applicant's affidavit of June 18, 2015 she indicates the following:

– I fully intend to take accountability for half of our total loan and make payments toward the principal balance once I am licensed, and earning.

[39] Applicant's Understanding of Loan Responsibility

It is the Applicant's position that this loan, although partially applied to her medical school education in the Caribbean, remains a mutual responsibility of them both and as she puts it in paragraph 6 of her June 2015 affidavit that:

….."The funds went towards tuition, living expenses, and meals with the Respondent, travel to/with the Respondent, and gifts. The Respondent assured me often that the loan was nothing to worry about and we could always roll it into our mortgage. Now the Respondent demands to be released from any and all responsibility for the funds already spent."

[40] Applicant's Current Position on Loan

The Applicant indicates that she is not able to take on this responsibility, nor was it her understanding that it would be hers but rather a common one between them both.

[41] Respondent's Additional Loan

Mr. Hanc, in his October 12, 2015 affidavit, notes that when the line of credit was maxed out he extended money to the Applicant as a loan of approximately $15,000.00 to pay towards her last installment of her tuition in late 2013, as the RBC line was exhausted.

[42] RBC Loan Documentation

Mr. Hanc attached as Exhibit A to his October 13, 2015 affidavit a copy of the RBC credit line agreement dated December 20, 2010, signed by both parties. Exhibit D to his October 13, 2015, affidavit is the extension to this RBC line of credit signed March 15, 2013. This was signed solely by the Respondent Mr. Hanc as at the time Ms. Cockerham was out Canada.

Applicant's Ability to Work and Be Self-Supporting

[43] Applicant's Education and Current Employment Status

Ms. Cockerham's highest training and educational level is that of a doctor of medicine, which she completed in April 2014. The Applicant states that during the period of cohabitation she worked for one year and five months or 21.79% of the time. This work was in the investor relations management field. Presently, Ms. Cockerham argues that she does not have the necessary residency requirement to obtain full-time work as a doctor in Canada, and therefore is not licensed to practice medicine in Canada or the United States.

[44] Applicant's Current Situation

The Applicant indicates that currently she is not working and is looking for work. She describes her current living situation as much worse than when the parties lived together. She indicates that she is being assisted and supported by living with her parents in Kamloops, British Columbia where there are fewer jobs. She indicates she moved there as she had no other means of support during this time and that she is trying to gain her residency internship. In terms of her ability to become self-supporting she indicates she would need to complete her NDE residency which is a two-year plus program.

[45] Applicant's Efforts to Obtain Residency

Ms. Cockerham indicates that she has applied for residency positions in the United States under the program called "Match 2015". She did not successfully secure a position in 2014. She indicates this program costs $5,000.00. She continues to pursue this application matching process during the fall of 2015 both within Canada and again in the United States through similar programs. She states that to apply within British Columbia, she must complete the provincially required NAC at a cost of $2,200.00 in September 2015, and will need to travel to either Vancouver or Calgary to take this exam.

[46] Respondent's Position on Applicant's Employment

Mr. Hanc takes issue with the fact that the Applicant notes her income in her financial statements to be zero. He states that the Applicant is not providing her income information for 2014 and 2015. He believes she is intentionally underemployed and that income should be imputed to her in accordance with the guidelines and believes that her income in previous employments was between $75,000.00 and $90,000.00 per year. He notes that Ms. Cockerham should not be restricted to employment in Kamloops as she had worked previously in Ontario and had no difficulties or objections in pursuing opportunities elsewhere in the world such as her education in the Caribbean and Atlanta, USA.

[47] Applicant's Employment History and Career Transition

The Applicant indicates that her last work while living with the Respondent ended in January 2009 when the Company Transition Therapeutics was downsizing. She spent the next two years looking for employment, and according to her testimony, began seeking a profession, not a job, which was, according to her evidence, part of the discussion that she had with the Respondent. She attempted to enter dental school at the University of Toronto unsuccessfully, and eventually decided to pursue medical training with the Respondent's encouragement.

[48] Applicant's Relocation to British Columbia

With the breakdown of the parties' relationship the Applicant indicates she found herself without means to remain in Ontario and therefore sought the assistance of her family in British Columbia. She moved there in March 2014.

[49] Respondent's Position on Applicant's Employment Capacity

Mr. Hanc indicates that he believes Ms. Cockerham can earn substantial income if she chose to. According to his evidence there are positions that would pay equal to, if not better than, her previous jobs as she now has a medical degree. He states that the Applicant is restricting her employment opportunities to Kamloops and that writing one exam in September 2015 does not displace her obligation to obtain remunerative employment.

[50] Applicant's Job Search Efforts

The Applicant did provide in her October 28, 2014 affidavit filed in the Superior Court British Columbia Application the job searches that she made when she originally arrived in Kamloops through a program called Health Match BC.

[51] Applicant's Realistic Income Expectations

In Ms. Cockerham's reply affidavit of October 19, 2015 she states that $90,000.00 is not a realistic amount of income to impute in her. She indicates that as a resident physician, if she had a match last year, she would be starting to earn approximately $40,000.00. This is found in paragraph 4 of this affidavit.

[52] Applicant's Employment Constraints

Further in paragraph 4 of this affidavit, the Applicant indicates that her job search is limited to Kamloops as she has no means of paying rent, nor does she have a vehicle. She does provide as Exhibit D to attached her affidavit the job searches that she submitted in her October 2014 affidavit noted above.

Respondent's Income

[53] Respondent's Income and Employment

Mr. Hanc, in his affidavit of October 13, 2015, states that he is a partner at a large law firm in Toronto. He gained his position in March 2015. His evidence is that his 2015 income will be $310,000.00. He outlines how he was paid earlier as an associate. He projects in paragraph 46 that his 2016 income could be lower and in the vicinity of $253,000.00. Mr. Hanc has filed his financial statement found in volume 2, tab 4.

The Law

[54] Applicable Legislation

The legislation that this court considered is found in the Family Law Act (FLA).

Section 1 (1) specifies who are spouses. Section 29 extends this eligibility for support to two people who have lived together continuously for three years or who have lived together in a relationship of some permanency and have a child together.

[55] Spousal Support Obligation

Section 30 of the Family Law Act states 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. R.S.O. 1990, c. F.3, s. 30 ; 1999, c. 6, s. 25 (3); 2005, c. 5, s. 27 (7) .

[56] Purpose and Factors for Support Orders

Subsections 33 (8) and (9) deal with the purpose of spousal support and with the factors that must be considered in making an order. The subsections are as follows:

(8) 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). R.S.O. 1990, c. F.3, s. 33 (8) ; 1999, c. 6, s. 25 (5); 2005, c. 5, s. 27 (9) .

Determination of amount for support of spouses, parents

(9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,

(a) the dependent's and Respondent's current assets and means;

(b) the assets and means that the dependent and Respondent are likely to have in the future;

(c) the dependant's capacity to contribute to his or her own support;

(d) the Respondent's capacity to provide support;

(e) the dependent's and Respondent's age and physical and mental health;

(f) the dependent's needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;

(g) the measures available for the dependent to become able to provide for his or her own support and the length of time and cost involved to enable the dependent to take those measures;

(h) any legal obligation of the Respondent or dependent to provide support for another person;

(i) the desirability of the dependent or Respondent remaining at home to care for a child;

(j) a contribution by the dependent to the realization of the Respondent's career potential;

(k) Repealed : 1997, c. 20, s. 3 (3).

(l) if the dependent is a spouse,

(i) the length of time the dependent and Respondent cohabited,

(ii) the effect on the spouse's earning capacity of the responsibilities assumed during cohabitation,

(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,

(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,

(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family's support,

(v.1) Repealed : 2005, c. 5, s. 27 (12) .

(vi) the effect on the spouse's earnings and career development of the responsibility of caring for a child; and

(m) any other legal right of the dependent to support, other than out of public money. R.S.O. 1990, c. F.3, s. 33 (9) ; 1997, c. 20, s. 3 (2, 3); 1999, c. 6, s. 25 (6-9); 2005, c. 5, s. 27 (10-13).

[57] Framework for Determining Entitlement

In Halliday and Halliday, [1997] O. J. No. 5241, 37 RFL (4) 192 (Ont. C. A.) the court directs that part three of the FLA charts a course which a trial judge must follow in determining whether a spouse is entitled to support and, if so, the amount of support in the form of support. The trial judge must:

A – determine whether the claimant was a spouse within the meaning of S. 29

B – consider the respective needs and capabilities of the parties under S. 30;

C – consider the purpose of the support order that S. 33 (8) and, in determining the amount and duration of support in relation to need, consider all the circumstances of the parties, including the factors stipulated in S 33 (9); and

D – choose from the various forms of support contained in S. 34 (1) in awarding support.

[58] Application of Framework

I will now consider the above factors, which are relevant in the case at bar.

Analysis

Cohabitation and Entitlement

[59] Finding of Common-Law Relationship

Was there cohabitation that meets the definition of legislation for entitlement? In considering the totality of the evidence presented regarding the history of this relationship it is my conclusion that there was a common-law relationship within the definition of legislation as interpreted by the jurisprudence.

[60] Contextual Analysis of Relationship

I have considered the evidence of the relationship of the parties contextually. They were committed to each other and planned their lives as a common-law couple. Granted that the evidence shows that they were apart for large periods of time as reviewed in the affidavits and set out above, this is only one factor in considering whether a couple is in a common-law relationship. The purpose of the separation might have been a temporary dispute between themselves or because of study or the demands of work. In this case it was due to Ms. Cockerham's educational program. In this regard the following case is helpful:

Parties who cohabitate in a conjugal relationship for at least three years will qualify as spouses for spousal support purposes. The determination of the period of cohabitation requires a contextual analysis and there is no "bright line" test. See Stephen and Stawecki (2008), 30 R.F.L (6) 282; O. J. No. 2412 (Ontario C. A.)

[61] Interpretation of "Live Together in a Conjugal Relationship"

The court indicated the following: the case law recognizes that given the variety of relationships and living arrangements, a mechanical bright line test is simply not possible. "Live together in a conjugal relationship" is to be interpreted as a unitary concept, and that the specific arrangements made for shelter are properly treated as only one of several factors in assessing whether or not the parties are cohabitating. The fact that one party continues to maintain a separate residence does not preclude a finding that the parties are living together in a conjugal relationship. The fact that one party has not "moved in" with the other did not mean that they were not living together at that time. Although the parties may not have finalized any joint financial arrangements and continue to maintain separate residences, they did live together under the same roof and slept, shopped, cooked, cleaned, socialized and lived together as a couple and were treated as such by their friends, family and neighbors.

[62] Separate Residences and Cohabitation

Referred to Campbell v. Szoke, [2003] O. J. No. 3471, 45 R. F. L. (5) 261 (Ont. S. C. J.), Affirmed , [2005] O.J. no. 154 (Ont. C. A.). The fact that the parties maintain separate residences does not prevent a finding of cohabitation. The court must look at all the circumstances and consider the reasons for maintaining another residence, such as to facilitate access with one's children. Continuous daily cohabitation is not required.

[63] Molodowich Factors

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 is to consider in making a determination of whether two parties meet the definition of "cohabit" under section 29 of the Act:

Cohabitation- The preconditions of cohabitation and a relationship of some permanency.

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?"

[64] Parties' Differing Views of Relationship

In the case at bar the parties each have their own view of the relationship. One stated it was traditional; the other stated it was modern and that they did not have an intertwining of financial affairs. Mr. Hanc indicates that he looked after his financial matters and Ms. Cockerham looked after hers.

[65] Community Recognition and Commitment

Ms. Cockerham indicated in her evidence that they were known as a couple in the community and that she attended to some of the domestic needs in the household. Mr. Hanc contests this. It is not entirely necessary that their relationship be defined as either traditional or modern to accept the fact that they were a common-law couple pursuing and advancing their relationship together. The following is instructive:

McEachern V. Fry Estates, [1993] O.J. No. 1731 (Ont. Gen. Div.)

When there is a long period of companionship and commitments and an acceptance by all who knew the parties as a couple, continuous cohabitation should be found. Also in Hazelwood v. Kent, [2000] O.J. no. 5263 (Ont. Fam. Ct.) the court also indicated continuous daily cohabitation is not necessary for a finding under S. 29.

[66] Respondent's Support for Applicant's Education

The parties in this matter do differ in what they believe they contributed to their common-law relationship. Mr. Hanc was already a trained lawyer and went on to develop his legal career. Ms. Cockerham worked and eventually set on advancing her education with the support of Mr. Hanc. This is quite evident in the fact that he, as a trained lawyer, went so far as to co-sign a loan with Ms. Cockerham through the Royal Bank of Canada. The initial amount was for $150,000.00. Eventually an additional $50,000.00 was added to this. He then, according to his evidence in paragraph 25 of his October 22, 2015 affidavit stated… "I loaned the Applicant a total of $18,000.00; that is a $15,000.00 in late 2013 and an additional $30,000.00 in late 2013 and early 2014. It is true the parties differ in terms of what principally the RBC loan was taken out for and spent on. There is little doubt that the majority of it was spent on Ms. Cockerham's educational expenses.

[67] Loan as Evidence of Commitment

This court need not resolve who is responsible for the loan or what the principal purpose for taking out the loan was and how it was spent. What I find this loan signifies to the court is a commitment to each other as a couple. As often is the case, both went into this loan agreement, as couples do, without any particular contractual arrangement between themselves and this can be viewed as another example of their commitment to each other at the time. Now that they are separated and have differences they have different views as to the history of this issue.

[68] Continued Commitment Despite Distance

Although they might not have remained together in the same condominium for a continuous period of time, they continue to have a commitment to each other, visiting with each other and corresponding and planning their life together. This is further evident by the engagement between them and the ring that was exchanged which is further evidence of their intention to remain as a couple.

[69] Engagement as Evidence of Commitment

This engagement and exchange of the ring occurred in December, 2011 after the difficulties that were described in the relationship, which I find indicates the commitment that each had towards one another over a period of years.

[70] Permanency of Relationship

The case of DeSouza v. DeSouza, [1999] O.J. no. 1811, 40 R.F.L. (4) 8 (Ont. C. J.) is further instructive in that the court indicates the following:

[71] Factors for Determining Permanency

There are several factors to be considered in determining the permanency of a relationship, including the parties' intention as overtly express and as reflected in their actions, the duration of the relationship and the circumstances of the individual case. No one factor is conclusive in isolation from the others.

[72] Purpose of Spousal Support

Turning to sections 33 (8) and (9) of the Family Law Act that deal with the purpose of spousal support and the factors that must be considered in making a support order the following are the relevant sections that I have looked at and the reasons why:

33 (8) indicates that an order for support of the spouse should, amongst other things;

(c) make fair provisions to assist the spouse to become able to contribute to his or her own support; and

(d) relief financial hardship, if this is not been done by orders under Parts 1---- which deal with division of properties.

[73] Application to Present Case

In the case at bar, a support order would be made in order to assist Ms. Cockerham in completing the last step of her education as a medical doctor, particularly to write the necessary exams in order to obtain her residency requirements. This goal will assist her in becoming able to contribute to her own support strategically. According to the evidence, at the end of the relationship and after pursuing her education, Ms. Cockerham's economic situation is far worse than during the relationship. She indicates that she was left with little resources and was required to obtain assistance from her family in British Columbia. Mr. Hanc does not contest this but indicates that she has the ability to work. I will address this issue separately below.

Determination of Amount of Support of Spouse

[74] Factors Considered

In considering the determination of the amount and duration for a spousal support award in this matter I have considered the following factors from section 33(9) of the Family Law Act that are relevant:

Current Assets and Means

[75] Applicant's and Respondent's Current Assets

In the case at bar, the Applicant indicates that she was left with nothing at the end of the relationship and is dependent on her family in British Columbia. She testified in her evidence that she has very little furniture if any and no car. The Respondent continues to reside in our home he purchased in Mississauga Ontario. No other evidence was led in terms of his overall assets.

Future Assets and Means

[76] Future Assets and Means

There was no evidence led on this; however, if both continue with their career paths they will likely have better assets and means in the future.

Dependent's Capacity to Contribute to Own Support

[77] Applicant's Capacity to Support Herself

Under this category Ms. Cockerham is educated. Her limitation presently in terms of her contribution to her own support is the fact that she has not qualified to obtain a residency as a doctor as yet. Her present living circumstances causes her to rely on the support of her family. This appears to be a short-term situation as she is actively pursuing her qualifying exams in order neither to remain dependent on family nor to reside in Kamloops British Columbia.

Respondent's Capacity to Provide Support

[78] Respondent's Capacity to Provide Support

The evidence presented by the Respondent Mr. Hanc is that his current's 2015 income according to his evidence is $310,000.00 He is fully employed and is a partner in an established law firm in Toronto.

Age and Physical and Mental Health

[79] Age and Health of Parties

The Applicant is 32 years old and the Respondent is 37 years old. There was no evidence that either have physical or mental difficulties that would affect their ability to support themselves or contribute to the other.

Measures Available for Self-Support

[80] Measures Available for Applicant's Self-Support

Ms. Cockerham's evidence is that she wishes to write qualifying exams that would allow her to obtain residency in British Columbia or the United States in order to qualify as a doctor. These exams were to be written in the fall of 2015 followed by a period of residence which is about 2 years.

Legal Obligations to Support Others

[81] Legal Obligations

There is no evidence that either of the Applicant and the Respondent have an obligation towards any other person.

Effect on Earning Capacity

[82] Effect of Relationship on Earning Capacity

The evidence in this case clearly indicates that the Applicant had worked during the relationship. As well, the Applicant and the Respondent discussed her pursuing her medical degree, which she did and therefore her future earning capacity has been enhanced. Nothing in the relationship seems to have affected her ability to obtain further education or stopped her from being in a better position in the future. Indeed, Mr. Hanc, in his affidavit evidence, states that part of what motivated him signing the RBC loan is that he knows that Ms. Cockerham is intelligent and she would succeed in medical school.

Entitlement to Spousal Support

[83] Basis for Entitlement – Compensatory

Entitlement to spousal support can be on the basis of compensatory claims for loss and disadvantage to the recipient and advantages gained by the payor which is not the case at bar.

[84] Basis for Entitlement – Non-Compensatory

Entitlement can also be based on a non-compensatory basis: need and interdependence.

[85] Applicant's Entitlement – Non-Compensatory Basis

In this particular case, Ms. Cockerham's situation is one of a non-compensatory claim. During the course of the cohabitation she was dependent by-and-large on Mr. Hanc. She did work but for a large period of time was a student living off a loan that they both signed for. The court accepts her evidence in this regard.

[86] Applicant's Current Circumstances

I find that she currently is experiencing a drop in living standards in that she is dependent on her family with very little assets and no employment. She does have a substantial debt with the RBC. This is a loan that was used in part to fund her education. Her evidence is that she is in a dire economic situation. Her standard of living is different than the Respondent. She is dependent on family and has no car that would permit her to look for work far from Kamloops, B.C. Based on the evidence and the factors set out in the Family Law Act, I find the Applicant's entitlement for spousal support is based on a noncompensatory basis.

[87] Forms of Support

Section 34 of the Family Law Act outlines the powers of the court to provide different kinds of support orders such as interim or final time-limited or retroactive.

[88] Payment to Court or Agency

Section 34 (e) gives the power of this court to have some or all of the money payable under the order be paid into court or to another appropriate person or agency for the dependence benefit.

[89] Limitations on Section 34(e)

The above section is referring to principally payments to welfare agencies that have provided a benefit such as monthly support payments to the dependent. It is generally understood that the Ontario Court of Justice cannot impose obligations in relation to property or trust matters, except for provisions of necessaries in order to keep a dependent off welfare.

Imputing Income on Applicant

[90] Respondent's Request to Impute Income

Mr. Hanc has argued that the court should impute income towards Ms. Cockerham. The principal argument as outlined in his evidence is that she is educated and has in the past worked. These are some factors that should be considered along with the obligations of each spouse to support themselves as best possible. This issue, however, is to be considered in the context of the facts that I have reviewed and the current situation of Ms. Cockerham.

[91] Applicant's Educational Status

Ms. Cockerham was studying to complete her medical degree and now is set to obtain residency in order to qualify as a doctor.

[92] Test for Imputing Income

The test for imputing income in spousal support cases, as it applies to a payor's ability to pay and can be applied as well to a recipient, has been found to be similar criteria as those in child support cases. It is discretionary upon a judge to impute income if factors are present that were unreasonable in the circumstances. The test for imputing income for child support purposes applies equally for spousal support purposes. See Rilli v. Rilli, [2006] O.J. No. 4142, (Ont. Fam. Ct.); Perino v. Perino, O.J. No. 4298 (Ont. S.C.).

[93] Decision Not to Impute Income

I have decided not to impute income on the applicant based on a consideration of the following facts and the competing interests in the Family Law Act :

[94] Mutual Duty of Support

Under Section 30 of the Family Law Act, every spouse has an obligation to support the other spouse in accordance with need, to the extent that he or she is capable of doing so. This is consistent with the concept of the obligations brought on by partnerships such as this common-law relationship or marriage. In the case of Bracklow v. Bracklow, 1999 Can L I I 715 (S.C.C.) para. 20 the court discussed the presumption that spouses owe one another a mutual duty of support. This of course is equivalent in common-law relationships as I have found to exist in this case.

[95] Length of Relationship and Standard of Living

This court should consider the length of the relationship and the impact that it has on the standard of living of the recipient once the relationship ends. As I have noted above, I have found that there is a common-law relationship here that existed for slightly over 6 years. During this relationship both parties had worked at one point and earned healthy salaries. This led to a certain standard of living. Both agreed that Ms. Cockerham should pursue her medical education and took out a loan to assist in part with this project. Mr. Hanc, in addition, provided additional money to Ms. Cockerham when the loan was used to its maximum. I find that there has been a drop in Ms. Cockerham's living standard as outlined above and that she is now poised to enter into a two-year program for her residency which would allow her to become a fully licensed practicing doctor. This would achieve one of the goals in the Family Law Act, which is to become self-sufficient and not be in need of support.

[96] Motivation and Intention in Imputing Income

When imputing income, a common theme is the motivation and intention of the person to whom income is being imputed. Often, in reviewing the cases, it's quite evident that a person has taken action to reduce income intentionally, or an unreasonable course of action in stopping employment, or is not looking for employment because of some unrealistic plan.

[97] Applicant's Reasonable Plan

In this case there is none of those traits in Ms. Cockerham's actions. Indeed, the evidence indicates that she was, up until to the end of the relationship, studying and obtaining programs that would assist her in becoming a doctor. At the end of the relationship her financial circumstances were now worse off and I have found this to currently be the case. She actually took measures to find self-support by relying on family which is a form of supporting herself; however, this should not be the case forever. This is another factor in this court's consideration for not imputing income to her.

[98] Reasonableness of Applicant's Plan

It is not an unreasonable plan that the applicant has put in place that will see her obtain self-sufficiency. This plan was part of the parties' actions and plans while they were together. It did not drop from the sky after the separation. In certain circumstances the spousal support analysis will not be given priority to self-sufficiency because it is an objective that simply cannot be obtained given the circumstances of the particular case or is not reasonable given the course of action such as a plan of education that has commenced and that has reached a significant point as it has in the case at bar. See this issue discussed in Fisher v. Fisher, 2008 ONCA 11, 47 R.F.L. (6 TH ) 235(Ont. C. A.).

Application of the Spousal Support Guidelines

[99] SSAG Not a Formula

In Lust v. Lust, 2007 ABCA 202, the court indicated that the SSAG's do not take the place of a proper analysis of establishing the appropriate level of spousal support needed in each particular case. The SSAG's are not a formula to be applied without due consideration of issues of entitlement and the specific factors applicable to any given support case.

[100] Proper Analysis Required

The court is still required to conduct a proper analysis of budgets and the principles of spousal support set out in the legislation and not automatically revert to the SSAG; Saunders v. Saunders, 2010 CarswellNS 490 (N.S. S.C.). In Phillips-Curwin v. Curwin, 2008 CarswellNS 328 (N.S. S.C.), Justice Dellapinna, noted as follows:

Whatever method one might use to determine the appropriate level of spousal support, from a practical point of view the figure chosen should be a reflection of the recipient's reasonable needs and should not exceed the payor's means. This is not an exercise in maximizing the spousal support simply because the payor may have the ability to pay it. Rather, the Court must look at all of the factors listed in the Act in light of the stipulated objectives of support and exercise its discretion in a manner that equitably alleviates the adverse consequences of the marriage breakdown between the parties ( see Bracklow v. Bracklow, [1999] 1 S.C.R. 420 at paragraph 36 ). That requires a support order that is fair to both parties.

[101] Quantum of Support

Taking into consideration the above jurisprudence and the facts of this particular case and having reviewed the financial statements of both the Applicant and the Respondent, I find that Ms. Cockerham's request is reasonable given her needs and circumstances. A support order will alleviate some of the adverse consequences of the breakdown of this relationship. I therefore order that Mr. Hanc pay Ms. Cockerham $2,500.00 per month in spousal support. This order, however, will not be indefinite given the evidence of this case. The support will continue through to and inclusive of April 1, 2017, which is the estimated time for Ms. Cockerham to complete her two-year residency from approximately the date of this application.

Retroactivity

[102] Principles for Retroactive Spousal Support

Kerr v. Baranow, [2011] ONCJ 10 sets out following principles for retroactive spousal support:

1. DBS factors apply as modified for spousal support (circumstances of spouse are relevant as opposed to circumstances of the child).

2. Presumptively, the date of the claim being issued is the start date for support, unless there is a reason to order otherwise.

3. The failure to bring a temporary motion should not be penalized as we should be encouraging people to avoid the cost of bringing temporary motions. This is particularly the case where the claimant moves the matter quickly to trial after obtaining disclosure.

4. At Par. 208: Spousal support has a different legal foundation than child support. A parent-child relationship is a fiduciary relationship of presumed dependency and the obligation of both parents to support the child arises at birth. In that sense, the entitlement to child support is "automatic" and both parents must put their child's interests ahead of their own in negotiating and litigating child support. Child support is the right of the child, not of the parent seeking support on the child's behalf, and the basic amount of child support under the Divorce Act, (as well as many provincial child support statutes) now depends on the income of the payor and not on a highly discretionary balancing of means and needs. These aspects of child support reduce somewhat the strength of concerns about lack of notice and lack of diligence in seeking child support. With respect to notice, the payor parent is or should be aware of the obligation to provide support commensurate with his or her income. As for delay, the right to support is the child's and therefore it is the child's, not the other parent's position that is prejudiced by lack of diligence on the part of the parent seeking child support: see D.B.S., at paras. 36-39, 47-48, 59, 80 and 100-104. In contrast, there is no presumptive entitlement to spousal support and, unlike child support, the spouse is in general not under any legal obligation to look out for the separated spouse's legal interests. Thus, concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support.

5. D.B.S. emphasized the need for flexibility and a holistic view of each matter on its own merits; the same flexibility is appropriate when dealing with "retroactive" spousal support.

[103] Factors for Retroactive Support

A variety of factors must be considered by a court when considering a claim for retroactive support: Bremer v. Bremer, (2005):

1. Establishing past need.
2. Any requirement for the recipient to encroach on capital.
3. The underlying basis for the order.
4. Impact on the payor: is it a redistribution of capital?
5. Blameworthy conduct on behalf of the payor, such as lack of financial disclosure.
6. Notice of intention to seek support and negotiations to that end.
7. Delay in proceeding and any explanation for that delay.
8. The appropriateness of an order predating the application

13 R.F.L. (6 th ) 89 (Ont. C.A.), at para. 9; Marinangeli v. Marinangeli, (2003), 38 R.F.L. (5 th ) 307 (Ont. C.A.), at paras. 72 to 84 .

[104] Retroactivity to April 2014

This ISOA application for spousal support is not a surprise. From the evidence there were prior requests and some negotiations between the parties that did not lead to a resolution. An action was started in British Columbia in October 2014. Notice was provided between the parties of Ms. Cockerham's requests for support before this application was started. Therefore, considering the above, her requests for retroactive support to April 2014 does meet the principles established for asking for retroactivity that would predate the date of this application. I order this support to commence April 1, 2014.

Set Off – Support Payments Against Loan Payments

[105] Request for Set Off

This court has been asked to set off the RBC loan payments made by Mr. Hanc against any spousal support order made. I did ask the parties to provide me with authority to do so. Mr. Hanc, through his counsel, presented a factum and case law setting out their arguments as to where I might find my authority.

[106] Authority Presented

I have reviewed the factum and cases. Most, if not all, of these cases are from a Superior Court level or a similar level of courts from across Canada that have the joint powers found under section 1 and section 3 of the Family Law Act or the equivalent legislation in other provinces dealing with the intermingling of property, debt and support and how, if third party payments are ordered, these might be considered under the Income Tax Act.

[107] Jurisdictional Limitation

I find that none of these authorities presented assist me at this level of court, the Ontario Court of Justice, as I have no authority to deal with property issues which the issue of this loan touches.

[108] Implicit Property Determination

To set off support payments against these loan payments would implicitly decide the nature of this loan in terms of percentage obligations between the parties and their respective obligations in relation to the loan. I would, effectively, be venturing into the realm of property and debt and attributing obligations to each of the respective parties in relation to this loan. The authorities provided to me do not assist me nor provide any authority for me to do this.

[109] Limitations of Section 34(e)

As I noted earlier, section 34(e) of the Family Law Act is used uniquely to forward funds to welfare agencies that have assisted recipients with government funding. In other words, support payments are made to the government as the government has provided monthly welfare benefits that should be repaid n these particular circumstances the nature of this loan and how it was entered into, given the respective knowledge base of each individual in this case, makes this completely different. This section does not give me sweeping powers that would permit me to set off any support payments as requested.

Summary of Order

1. Mr. Hanc shall pay support to Ms. Cockerham, in the amount of $2,500.00 on the first of each month commencing April 1, 2014.

2. This support shall be time-limited and be paid on the first of each month, commencing April 1, 2014 through to April 1, 2017.

Released: December 21, 2015

Justice A.W.J. Sullivan