Court File and Parties

Date: November 13, 2018

Court File No.: Brampton 1282/16

Ontario Court of Justice

Between:

Martha Ruth Lagunes Pola Applicant

— And —

Conner Chamilliard Respondent

Before: Justice A.W.J. Sullivan

Decision

Released on November 13, 2018

Counsel:

• Adela Crossley, for the Applicant
• Nida Hussain, for the Respondent

SULLIVAN J.:

Introduction

[1] This is the decision in the trial of an application filed by Martha Pola on November 30, 2016 for spousal support. Ms. Pola is 37 years old.

[2] The Respondent, Conner Chamilliard, filed an Answer on May 3, 2018 to this request. Mr. Chamilliard is 36 years old.

Issues

[3] This Application and Answer 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 Mr. Chamilliard's immigration sponsorship of Ms. Pola, the Applicant's ability and efforts to support herself and whether income should be imputed to her; and,

iii. If support is granted the quantum and duration.

[4] Ms. Pola requests spousal support in the amount of $1,500.00 per month for three years matching the immigration sponsorship of her by Mr. Chamilliard.

[5] In Mr. Chamilliard's Answer he claims Ms. Pola is not entitled to support on either a contractual, compensatory or needs basis.

Review of Parties' Evidence

[6] The relevant facts from the parties has been considered by the court and reviewed below. These facts are the principal facts that concern the court in this matter.

[7] I considered the following affidavit evidence filed in this trial as well as the parties' cross examination.

Ms. Martha Pola:

• Affidavit sworn November 14, 2017 (Volume 1, Tab 13 of the Continuing Record);
• Affidavit sworn December 7, 2017 (Volume 3, Tab 1 of the Continuing Record);
• Affidavits sworn January 22, 2018 (Volume 3, Tabs 2, 3, 4 and 5 of the Continuing Record); and
• Affidavit sworn March 5, 2018 (Volume 3, Tab 8 of the Continuing Record).

Mr. Connor Chamilliard:

• Affidavit sworn November 28, 2017 (Volume 2, Tab 2 of the Continuing Record); and,
• Affidavit sworn February 15, 2018 (Volume 3, Tab 6 of the Continuing Record).

Financial Statements:

Ms. Martha Pola:

• Financial Statement sworn November 30, 2016 (Vol. 1, Tab 4 of the Continuing Record); and,
• Financial Statement sworn October 19, 2017 (Vol. 1, Tab 10 of the Continuing Record).

Mr. Connor Chamilliard:

• Financial Statement sworn April 27, 2017 (Vol. 1, Tab 7 of the Continuing Record); and,
• Financial Statement sworn February 15, 2018 (Vol. 3, Tab 7 of the Continuing Record).

Factual Background

[8] The applicant, Ms. Pola, moved from Mexico to Canada in September 2009. At the time she made a refugee claim. After obtaining a work permit she worked as a janitor. She met the respondent Mr. Chamilliard in a building where he also was working. He works as a technician repairing elevators.

[9] The parties began seeing each other over lunch and in the community. In 2010 the applicant moved to Winnipeg for approximately 8 months. She explains that she did so as she wanted to see more of Canada.

[10] During the time that the applicant was in Winnipeg, the parties communicated via social media and phone calls. It was agreed that Ms. Pola would return to Toronto and they would move in together which they did on or about December of 2011. At this point, the parties' respective evidence on central issues diverge as they relate to spousal support.

[11] The applicant indicates that after they moved in together the respondent was supporting her both emotionally and financially. The respondent denies financially supporting Ms. Pola at this time indicating they kept separate finances. The next significant event that occurred after moving in together was in February 2012 when Ms. Pola was ordered by Canada Immigration and Border Services to leave Canada as her refugee claim was denied.

[12] Before leaving Canada the parties married on March 23, 2012. (In the Application the year is provided as 2011). Here again surrounding who proposed marriage there are divergent positions with the applicant indicating that the respondent proposed to her which he denies. The respondent indicates that he was swayed by Ms. Pola's insistence on marriage and despite the short relationship he did so. Nevertheless the marriage did occur.

[13] The above issues regarding financial support and how the marriage occurred become central in this matter in light of the following evidence presented in this trial:

a) Ms. Pola's refugee claim was denied in part as the information that she provided for her fears in Mexico was based on false information.

b) She readily admits this and indicates that this was known to Mr. Chamilliard during the process of his sponsorship of her to return to Canada.

c) Mr. Chamilliard testified that the full extent of Ms. Pola's misinformation in her refugee claim only became clear to him after she had left for Mexico in 2012 where she remained waiting for the sponsorship application to be processed. This process was completed in July of 2015 when she received her visa and returned to Canada on September 2015.

d) It is Ms. Pola's evidence that during the 3.5 years waiting in Mexico, Mr. Chamilliard did visit her on four different occasions staying for approximately two weeks during each visit. Mr. Chamilliard in his Answer indicates that he visited five times.

[14] During this waiting period in Mexico, the parties also communicated through social media. Ms. Pola testifies that the respondent financially assisted her usually by sending about $300.00 each month and more if there was an emergency. He also provided on one occasion $600.00 for her to take an aesthetician course. Mr. Chamilliard denies that he provided regular funds to her. He testified that the applicant did leave with him approximately $2,000.00 dollars here in Canada which were her savings and that she was instructing him to send this to her which he did in periodic transfers.

[15] In his affidavit of February 15, 2018, Mr. Chamilliard indicates that he did deposit or transfer the savings that she had left with him into a CIBC account that she had before they met and that in October of 2012 when she ran out of funds he states…

I sent her funds on occasion when she needed it, small amounts of usually $150 to $200 per month (for example, when she told me she wanted to take an aesthetics course, I did send her $600 as that is what she told me the course costs).

[16] When Ms. Pola returned to Canada in September 2015 and they began their life together, she claims that Mr. Chamilliard became controlling and in particular around finances. He testifies that this was not the case and that he would have discussions with her in order to verify purchases that she made on a credit card. His testimony is that he simply wanted to have discussions with her around finances and nothing more. When he would raise this topic his testimony was that Ms. Pola became erratic and verbally aggressive arguing with him. They remained together for 9 months, then separated and remain so throughout.

[17] The parties have different versions of their plans together as a couple. Ms. Pola indicates that it was always her plan to improve her English and move away from minimum-wage jobs. She testified that she had informed the respondent that she wanted to work with animals and become a veterinarian assistant.

[18] Mr. Chamilliard indicates that he was concerned over the parties' finances as the applicant refused to look for and maintain full-time employment, either part or full hours, when she returned to Canada which was according to him their plan. According to his evidence he understood the need for her to attend some retraining and English courses but essentially this would be done while working part-time.

[19] Mr. Chamilliard argues that the applicant has not attempted to support herself or look for work as is her responsibility to do. He indicates that she holds a Bachelor degree in teaching from Mexico and has taken several ESL classes. In the past she worked as a janitor, a babysitter, taught Spanish lessons, and has completed an aesthetics course. When the parties met the applicant was employed.

[20] Ms. Pola indicates that she is hoping to become self-sufficient. The ESL classes that she has taken recently are different than the basic LINC English classes that she took as a newcomer.

[21] Ms. Pola indicates in her affidavit evidence that as she knew she was returned to Canada based on a sponsorship by her husband, the respondent, she did not focus on establishing a career in Mexico as she knew her time in Mexico is limited and this inhibited any long-term career planning.

Sponsorship Undertaking

[22] Ms. Pola points to the sponsorship undertaking that Mr. Chamilliard signed with the Canadian government sponsoring her as his wife. She indicates that he has failed to honor this undertaking forcing her to seek social assistance which she remains on through to today. She argues that if Mr. Chamilliard is unhappy that she is on social assistance he can offer her support thus alleviating any responsibility he may have in repaying money to the federal government if requested to do so. She deposed that her source of income was Ontario Works which she indicates is $452.00 per month and presents a letter of February 28, 2018 from Toronto Social Services, Exhibit C to her March 2018 affidavit.

[23] Ms. Pola notes that Mr. Chamilliard, in addition to signing the undertaking with the federal government, also emailed to the Immigration lawyer retained to assist with this Sponsorship Application the following:

…Once Martha is back here in Canada I would not want her to stress out about getting a job immediately, because I can support the both of us. I would rather she takes the time to find a job she would like to do or take a school/training course for something she would enjoy doing. I know Martha is the type of person who would rather be out working hard than staying at home lazing around.

[24] On this issue Mr. Chamilliard agrees that he undertook a sponsorship of Ms. Pola. The evidence presented in this regard is that the undertaking with the federal government expires on September 6, 2018. It has obligations that he undertook to essentially provide all the necessities to his wife within reason. He also notes that there are obligations of the person being sponsored in these contracts to make reasonable efforts to provide for their basic requirements as well.

[25] On this point of Ms. Pola not making an effort to find employment, Mr. Chamilliard points out that she was employed when they first met in Canada and that although it was cleaning work it is work that she could look for today.

[26] He notes that she did take an aesthetics course in Mexico and there is nothing to prevent her from taking on this work on a part-time or full-time basis. Further, he notes that other than Ms. Pola's evidence regarding her need to upgrade her English, no independent evidence regarding her competency level was filed with the court. He notes that when they were a couple they spoke in English when they were living together.

[27] Mr. Chamilliard argues that there is no medical evidence presented that would stop Ms. Pola from working either part-time or full-time at minimum wage given the history of her work here in Canada. Some evidence was led that she has been purchasing some items over the Internet that would suggest she might be working in the aesthetician field. The court was asked to consider this given some of the information that can be gleaned from bank statements and purchases made by Ms. Pola as part of the financial disclosure. It is argued that Ms. Pola only produced three monthly bank statements from her CIBC account attached to her January 22, 2018 affidavit and not all of the disclosure requested.

[28] Mr. Chamilliard argues in addition, that if spousal support is granted it must be considered that he has the potential payment to the Ontario government for the period of time that Ms. Pola has received Ontario social assistance. This he classifies as the sponsorship debt.

[29] The argument here is that if this court were to order retroactive support and he be requested to repay, then Ms. Pola would have received social assistance as well as Mr. Chamilliard's support and argues this would be a form of "double dipping" as he may be ordered to repay social assistance for any monies received by Ms. Pola from the government.

[30] Mr. Chamilliard provided evidence that was uncontested regarding his income. He works full-time as an elevator mechanic working for Schindler Elevators. Based on financial disclosure, his 2016 income was $99,707. Based on his financial statement dated April 27, 2017, his annual income was noted to be $126,955.92.

[31] Mr. Chamilliard suggests and argues in retrospect that he believes he married a stranger given the misinformation that he became aware of when he started the sponsorship of Ms. Pola in May 2012.

The Law

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

1. Section 1(1) specifies who spouses are.

2. 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.

3. 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) .

4. 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:

[33] 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

[34] 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 dependent'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).

[35] In Halliday v. 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 and 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.

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

Entitlement

[37] I find that Ms. Pola is entitled to request spousal support in this matter on the basis of both a non-compensatory needs basis and a contractual entitlement.

[38] The non-compensatory support in this case is the economic difficulties resulting from the breakdown of the marriage and not the roles assumed in the marriage and/or careers or career paths given up for the marriage but rather the issue of difficulty becoming self-sufficient.

[39] I find that she currently is experiencing a drop in living standards in that she is dependent on social assistance with very little assets and no employment. Her evidence is that she is in difficult economic straits. 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 in part on a non-compensatory basis and contractual.

[40] The contractual entitlement in this case flows from the expressed agreement that the parties entered into between themselves and the Canadian government when the Sponsorship Agreement was entered into.

[41] Earlier decisions and higher authorities have provided me direction regarding how these Immigration Sponsorship Agreements are to be considered within the context of spousal support principles such as this file as follows:

Sponsorship Agreements

[42] Although an immigration sponsorship agreement is one factor to be considered in assessing spousal support – see , for example, Nathoo v. Nathoo , 2005 ABQB 175 , 2005 ABQB 175, (Alta. Q.B.) – it is not determinative of the issue. Merko, 2008 ONCJ 530 .

[43] The length of the sponsorship agreement does not bind the court to that length and the court must apply ordinary spousal support principles. Anshasi v. Ramlawi (2004) , 5 R.F.L. (6 th ) 26 SCJ. However, it was found to be a strong factor in favour of ordering spousal support in Camilleri v. Camilleri (2001) , 19 R.F.L., (5 th ) 15 (Ont. Div. Ct.) , Javed v. Kaukab, 2010 ONCJ 606 ; Gutierrez v. Petten, 2011 ONCJ 549 .

[44] The existence of a sponsorship agreement can be a factor in extending the durational limits of the SSAG or ordering support at the high end range. See: The Spousal Support Advisory Guidelines, A New and Improved User's Guide to the Final Version, Department of Justice Canada, March 2010, Chapter FV 7(b) by Carol J. Rogerson and D.A. Rollie Thompson. Kuznetsova v. Flores , 2016 ONCJ 203 .

[45] In addition, I note the following when it comes to these Immigration Sponsorship Agreements:

[46] I find there are two main contractual features to these Sponsorship Agreements, one between the Canadian Government and the sponsor and the second is between the sponsor and the person sponsored.

[47] Within the first part, the Canadian government requires that prior to the sponsorship being considered by the government, the parties need to enter into a mutual agreement.

[48] In this first part of the agreement it is the sponsor and the Canadian government that are dealing with each other. Effectively the Canadian government directs that, if the sponsor wishes to follow through with the sponsorship, the sponsor must understand that they are to support the person sponsored, failing which the Canadian government and/or the provinces may recover monies if the person sponsored requires social assistance.

[49] I find that within the first step of this Sponsorship Agreement that the Canadian government goes on and directs the other two parties to this document, the sponsor and the person being sponsored, to enter into a mutual understanding between them both.

[50] Effectively, the Canadian Government, as a condition precedent to the government accepting the sponsorship application, directs the parties in this case to enter into a contractual understanding between themselves dealing with the very issue of this litigation.

[51] In this case it is the sponsor, Mr. Chamilliard, that contracts to support Ms. Pola with her basic daily needs in order to avoid her requesting government assistance and on her side that she is to make reasonable efforts to support herself.

[52] I also note that in this contractual understanding between the sponsor and the person sponsored that the person sponsored, in this case Ms. Pola, has an obligation and is directed (with a few exceptions) to ask/seek support if needed from the sponsor, Mr. Chamilliard. This is what Ms. Pola is doing. It reads…

…I promise to ask the sponsor and co-signer (if applicable) for help if I or my family members are having difficulty supporting themselves or meeting their own basic requirements.

[53] I recognize the courts when presented with these sponsorship situations, that each of the parties in these matters generally emphasize one part of this three party agreement depending on their respective positions.

[54] In this case, Mr. Chamilliard emphasizes the obligation of Ms. Pola to support herself and the potential liability that he as the sponsor may have towards the government to repay any social assistance collected by the sponsored person.

[55] The sponsored person generally points to the undertaking of the person that sponsored them to look after their needs.

[56] Rarely is there any emphasis on the obligation of the person sponsored to actually ask for support if in need. This is what Ms. Pola and other individuals that have been sponsored by these agreements are obliged to do apparently.

[57] I also find it equally as significant to support the contractual obligation between the parties in this case to be the marriage between Mr. Chamilliard and Ms. Pola and the context in which that occurred.

[58] It is uncontested that the parties married in Ontario on March 23, 2012.

[59] This was after Ms. Pola's immigration difficulties came to light with her being ordered to leave Canada.

[60] Although the full extent of Ms. Pola's misinformation in her refugee claim might not have been known entirely to Mr. Chamilliard in and around the time of the marriage, I find that the evidence is that he was aware during the three year sponsorship process while she waited in Mexico that she had not been truthful in her refugee claim.

[61] It remains uncontested that Mr. Chamilliard followed up with a sponsorship of Ms. Pola that was processed between 2012 and 2015.

[62] Mr. Chamilliard could have, during these three years, withdrawn his sponsorship but this did not occur.

[63] He did visit, according to his evidence on five occasions, Ms. Pola in Mexico spending approximately two weeks on each visit. He did assist with some monthly funds, although he also redirected her savings back to her.

[64] I understand that the parties did not live together here in Canada for any great length of time other than the nine months that they were together after Ms. Pola arrived here in September of 2015, however, this does not take away from the commitment that was made years earlier and followed through with after the marriage.

[65] I find direction in the case of Bracklow v. Bracklow , [1999] 1 .S.C.R. 420 para. 20 , where the court indicates that every spouse has an obligation to support the other in accordance with need, to the extent that he or she is capable of doing. The court underlines that this is consistent with the concept of marriage as a partnership. The court emphasizes that there is a presumption that spouses owe one another a mutual duty of support.

[66] I recognize the above is balanced within reason with Ms. Pola's obligation also to become self-sufficient. In this regard I find her testimony that she put on hold any training or career education while in Mexico because of the inevitable move to Canada pursuant to the sponsorship to have some weight. Her training in Mexico might not have been accepted here without upgrading and experience.

[67] However, after a year and a half had passed while waiting to be sponsored one would have thought that at least English training would have been pursued with more vigor while in Mexico.

[68] I can understand if particular career training might not have led to that experience being translated into Canadian experience and therefore Ms. Pola needing to obtain credentials here, however, English language training is easily transferable.

[69] To some extent I understand Ms. Pola's argument that her standard of living has dropped given the breakup of the relationship as she was dependent on Mr. Chamilliard when she returned.

[70] The uncontested evidence was that while in Mexico Ms. Pola did some retraining in the aesthetician field, and there was no insistence by Mr. Chamilliard that she either work there or attend language classes full-time in order to be able to enter the workforce immediately upon her return to Canada.

[71] However, it is pointed out that she was working in Canada prior to meeting Mr. Chamilliard and although her English might be improved it did not prevent her from finding some work in the past. Also given her previous experience in Canada she was aware of the culture and work force here.

[72] The above I find was adjusted by the marriage and the support that Mr. Chamilliard offered publicly to Ms. Pola causing her to rearrange how she planned her life upon re-entering Canada.

[73] By this I mean in particular the public statement made by Mr. Chamilliard for use by the immigration lawyer assisting in the sponsorship when Mr. Chamilliard wrote the following to be sent to Immigration Canada:

…Once Martha is back here in Canada I would not want her to stress out about getting a job immediately, because I can support the both of us. I would rather she takes the time to find a job she would like to do or take a school/training course for something she would enjoy doing. I know Martha is the type of person who would rather be out working hard than staying at home lazing around.

[74] I recognize that the above needs to be balanced with the fact that there does exist in this matter a tipping point over time in which Ms. Pola should be self-sufficient or mitigating her circumstances. By this I mean that although she might have had certain expectations based on the marriage, the Sponsorship Agreement, Mr. Chamilliard's public statements and dependence upon him when she arrived in Canada, is it still reasonable at this point from the date of separation, June 2016, to maintain the position that she needs now to continue to be retrained in English and skills training to the full extent that it has been argued in this case.

[75] I find that in the overall spousal support analysis considering the facts that are present at this point in time in this case that it is reasonable for some leniency in placing too great of a priority to self-sufficiency.

[76] 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.

Imputing Income on Applicant

[77] Mr. Chamilliard has argued that the court should impute income to Ms. Pola. The principal argument as outlined in his evidence is that Ms. Pola has worked in Canada in the past, has some English language training and might be working for cash doing nails. These are some factors that should be considered along with the obligations of each spouse to support themselves as best possible.

[78] 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. See Rilli v. Rilli , [2006] O.J. No. 4142, (Ont. Fam. Ct.) ; Perino v. Perino , O.J. No. 4298 (Ont. S.C.).

[79] 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 .

[80] 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 para. 20 , the court discussed the presumption that spouses owe one another, a mutual duty of support.

[81] 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 has been a drop in Ms. Pola's standard of living from when she was supported by Mr. Chamilliard.

[82] 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. In this case there are none of those traits in Ms. Pola's circumstances.

[83] 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.

[84] 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 how the parties ordered their affairs when together. See this issue discussed in Fisher v. Fisher , 2008 ONCA 11 , 47 R.F.L. (6 TH ) 235 (Ont. C. A.) .

[85] 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:

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

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

(ii) relieve financial hardship, if this has not been done by orders under Part 1 which deal with division of properties.

[86] In the case at bar, a support order would assist Ms. Pola to be able to position herself within a reasonable period of time to become self-sufficient. As noted above she is young and healthy. She has University education from Mexico. She has taken English programs in Canada and has work experience both here and in Mexico. A limited period of support would act as a foundation and an incentive for greater efforts to achieve self-sufficiency.

Determination of Amount of Support of Spouse

[87] 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:

The dependent's and Respondent's current assets and means:

[88] In the case at bar, the Applicant indicates that she was left with little assets and funds although this was not a major issue in this trial. No evidence was led that the intermingling of her funds with that of the Respondent caused her to be in a worse position than she was in Mexico while waiting for sponsorship or had been prior to leaving Canada. It was noted that Ms. Pola was proud of the fact that she had no debts, however, she is also according to her evidence living on the small amounts of money from the government and has lived in shelters.

The assets and means that the dependent and Respondent are likely to have in the future:

[89] In this regard Mr. Chamilliard is a trained elevator technician. He filed his financial statement which indicates that his salary has increased year over year, that he holds a steady and skilled job and that he is able to pay his debts as well as set aside some monies for RRSP savings each month. Ms. Pola indicates she has no debts and no assets to speak of and is living on basic income. It is clear however that with her permanent residence established, her ability to move on with her life and gain employment given her desire that she will be in a better position.

The dependent's capacity to contribute to his or her own support:

[90] Under this category Ms. Pola has the capacity to do so and has worked here in Canada. With some retraining either in English and/or a particular career she will be able to support herself. She requests $1,500.00 per month over three years to do so.

The Respondent's capacity to provide support:

[91] Mr. Chamilliard is working full-time, is a skilled tradesperson and has the capacity to provide support.

The Applicant's and Respondent's age and physical and mental health:

[92] The Applicant is 37 years old and the Respondent is 36 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.

The measures available for the dependent to be able to provide for his or her own support and the length of time in the costs involved to enable the dependent to take those measures:

[93] Ms. Pola has worked in Canada in the past. When she arrived in Canada she had no job waiting for her and was dependent on Mr. Chamilliard. She has some English skills. She is familiar with Canada and has been in the work force. She has some family here, however no clear evidence was led on how much support they can be directly to her goal of becoming self-sufficient. She appears motivated to improve her situation and there was a public statement by Mr. Chamilliard that he recognized that she should improve her situation and gain a skill upon her return to Canada that did not get off the ground.

Any legal obligation of the Respondent or dependent to provide support for another person:

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

Application of the Spousal Support Guidelines

[95] 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.

[96] 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 Carswell NS 490 (N.S. S.C.) . In Phillips-Curwin v. Curwin , 2008 Carswell NS 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.

[97] 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. Pola'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 and recognize some of the responsibilities and expectations brought on jointly by the marriage and sponsorship.

[98] The SSAG calculations presented in this matter indicate a duration of two to four years of support to be paid. This is so with an imputation of income to Ms. Pola which I have not done. The SSAG are guidelines and need to be considered in light of the other factors discussed above in this decision.

[99] I have also factored in the possibility that Mr. Chamilliard may have to repay the social assistance debt. This is far from certain, but a factor I have kept in mind and therefore will not order retroactive support because of this possibility which would create a double payment. I accept this may be about $15,000.00 as of the date of this decision. Equally I recognize this may never have to be repaid by Mr. Chamilliard.

[100] This factor, although far from certain, I've weighed and taken into consideration when setting the duration of the support order, the commencement date, (not to overlap with the time period that Ms. Pola received social assistance) and the amount in spousal support. I have also accepted that Ms. Pola could in part contribute in some fashion to her plans to retrain and I have not forgotten that she now has her Permanent Residence status as a fair balancing of factors in making this order.

Final Order

[101] That Connor Chamilliard shall pay spousal support to Martha Pola commencing December 1, 2018 and ending June 30, 2020, (total 18 months) payable in the amount of $1,000.00 per month on the 1st of each month.

[102] A Support Deduction Order shall issue.

[103] On the issue of costs, I find that there has been a mixed success in this matter and that this case does not attract costs. There were balanced and reasonable arguments from the perspective of each party which resulted in the terms of this order based on the facts and law considered.

November 13, 2018

Justice A.W.J. Sullivan