Court File and Parties

Date: August 16, 2019

Court File No.: DR21769-18

Ontario Court of Justice

Between:

Samantha Sheila Margeurite Strickland Acting in Person Claimant

- and -

Tristan James Walsh Acting in Person Respondent

Heard: August 9, 2019

Justice: S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] This case is about spousal support.

[2] The claimant has brought an application pursuant to the Interjurisdictional Support Orders Act (ISOA) seeking an order that the respondent pay her spousal support of $1,000 each month.

[3] The respondent asks that the application be dismissed.

[4] ISOA applications are usually decided on written material. However, the court may order an oral hearing at the request of the respondent, or on its own initiative, if it is satisfied that an oral hearing is necessary to deal with the case justly. In this case, the court determined that an oral hearing was necessary to deal with the case justly. The claimant was offered the opportunity to participate in the hearing by teleconference but did not take advantage of this opportunity.

[5] The claimant was also given the opportunity to respond to the respondent's written materials filed on May 3, 2019. She did not do so.

[6] It is unfortunate that the claimant chose not to take advantage of these opportunities provided by the court. Her evidence in her application material was sparse. Her participation would likely have provided the court with a clearer picture of the facts and have enabled it to make a more informed decision.

[7] The court relied on the written materials of the parties and the oral evidence of the respondent in making its decision.

[8] The issues for the court to determine are as follows:

a) Is the claimant entitled to spousal support?

b) If the claimant is entitled to spousal support, what is the appropriate amount and duration of spousal support that should be ordered?

Part Two – The Evidence

[9] The claimant is 26 years old. The respondent is 31 years old.

[10] The claimant lives in Newfoundland and Labrador. The respondent lives in Ontario.

[11] The parties met in Newfoundland and Labrador in 2009. The claimant was 16 years old. She had just left school. The respondent was 21 years old and worked in off-shore drilling.

[12] The parties moved to Alberta in November 2010 and began living together. The respondent worked in the drilling industry and earned about $60,000 annually.

[13] The respondent supported the claimant in Alberta. The claimant had a few part-time jobs that didn't last long. The respondent testified that the claimant was let go from these jobs because she didn't want to work and was unreliable. He said that she made little effort to look for work or upgrade her education.

[14] The parties moved back to Newfoundland and Labrador in April 2013 when the respondent's grandfather had a stroke. The respondent said that he cared for his grandfather for the balance of 2013.

[15] The respondent testified that the parties frequently moved throughout Newfoundland and Labrador from 2014 until 2016, often living in very small towns – one town, the respondent said, had a population of 150. He said, "we had no set bearings".

[16] The respondent said that he would regularly find work as a welder in shipyards. The claimant did not work much during this period. The respondent said that she worked for a very short period of time in a fish plant in 2014 or 2015 but was laid off.

[17] The respondent believes that the claimant obtained an on-line grade 12 course credit during this time.

[18] The respondent fully supported the claimant during this period.

[19] The parties moved to Glovertown, Newfoundland and Labrador (a larger town) in January 2017. The respondent continued to work full-time. The claimant stayed at home. She did not work or go to school.

[20] The parties separated in July 2017. The respondent left the claimant and moved to Toronto. The claimant remained in Newfoundland and Labrador. They have lived separate and apart since that time.

[21] The parties have no children.

[22] The claimant started her ISOA application in October 2018. The Notice of Hearing was issued in Toronto on December 11, 2018.

[23] The claimant deposed in her application materials that she had gone back to school and would be completing grade 12 in November 2018. She indicated that she planned to start a Personal Care Attendant program at Keyin College in Newfoundland and Labrador on December 31, 2018.

[24] The claimant deposed that her 2018 income would be about $7,000. She provided no details about the source of this income. She provided no evidence about what income she expected to earn in 2019. Her 2017 income tax return showed line 150 income of about $10,000.

[25] The claimant stated in her application that she had a neck injury that prevented her from working. However, she provided no medical evidence to support this claim.

[26] The respondent found work in construction upon arriving in Toronto. He was a member of the Labourer's International Union at that time.

[27] The respondent also started a new relationship shortly after arriving in Toronto. He is now engaged to be married and is expecting a baby with his partner in late February or early March 2020.

[28] The annual income of the respondent for the past three years has been as follows:

2016 - $47,444
2017 - $69,669
2018 - $25,401

[29] The respondent was a very candid witness. He said that a major reason his income dropped in 2018 was because he was depressed and had started drinking heavily.

[30] The respondent said that he worked part-time doing snow removal in the winter of 2019.

[31] The respondent found full-time work in Collingwood, Ontario as a construction foreman starting in April 2019. He is being paid at the rate of $58,500 annually. He is no longer working through his union.

[32] The respondent has recently started working for the same employer in Wasaga Beach, Ontario. His income has not changed. The respondent and his partner have moved to Wasaga Beach and are renting a home there together with two of the respondent's crew members.

[33] The respondent testified that his partner is also now working for his employer. She earns $20 per hour on a full-time basis.

[34] The respondent said that he has given the claimant about $2,000 since the separation.

Part Three – Legal Considerations

[35] Paragraphs 2 and 3 of section 13 of the ISOA set out that, in determining a claimant's entitlement to spousal support where the claimant resides outside of Ontario, the Ontario court shall first apply Ontario law, but if the claimant is not entitled to support under Ontario law, the Ontario court shall apply the law of the jurisdiction in which the claimant and the respondent last maintained a common habitual residence (in this case Newfoundland and Labrador). If entitlement to spousal support is established, the Ontario court shall apply Ontario law in determining the amount of support for the claimant.

[36] Section 14 of the ISOA sets out the types of orders the court can make as follows:

Order

14 (1) On the conclusion of a hearing, the Ontario court may, in respect of a claimant, a child or both,

(a) make a support order;

(b) make a temporary support order and adjourn the hearing to a specified date;

(d) refuse to make a support order.

Retroactivity

(2) The Ontario court may make a retroactive support order.

Periodic Payments or Lump Sum

(3) A support order may require support to be paid in periodic payments, as a lump sum, or both.

Choice of Law

(3.1) A support order shall specify the law applied in making the order, and if the order does not specify the law applied, the order is deemed to have been made under Ontario law.

Reasons for Refusal

(4) If the Ontario court refuses to make a support order, it shall give written reasons for its decision and send them to the designated authority.

[37] The claimant and the respondent are spouses as defined in section 29 of the Ontario Family Law Act (the Act) that reads as follows:

In this Part,

"dependant" means a person to whom another has an obligation to provide support under this Part; ("personne à charge")

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

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

(b) in a relationship of some permanence, if they are the natural or adoptive parents of a child. ("conjoint").

[38] Section 30 of the 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.

[39] Subsection 33 (8) of the Act sets out the purposes of spousal support as follows:

Purposes of Order for Support of Spouse

(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;

(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).

[40] Subsection 33 (9) of the Act sets out considerations for the determination of the amount, if any, and duration of spousal support as follows:

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 dependant's and respondent's current assets and means;

(b) the assets and means that the dependant and respondent are likely to have in the future;

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

(e) the dependant's and respondent's age and physical and mental health;

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

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

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

(j) a contribution by the dependant to the realization of the respondent's career potential;

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

(l) if the dependant is a spouse,

(i) the length of time the dependant 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 dependant to support, other than out of public money.

[41] The Court of Appeal in Fisher v. Fisher, 2008 ONCA 11, stated that before applying the Spousal Support Advisory Guidelines (SSAG), entitlement to spousal support must first be established.

[42] Spousal support is not merely a consideration of needs and means. In determining the appropriate amount of spousal support, compensatory and non-compensatory considerations should be taken into account in an effort to equitably alleviate the economic consequences of the breakdown of the relationship. See: Rioux v. Rioux, 2009 ONCA 569, [2009] 97 O.R. (3d) 102 (OCA). Entitlement can be based on compensatory, non-compensatory or contractual grounds. See: Bracklow v. Bracklow.

[43] Where compensation is not the basis, a support obligation may arise from the marriage relationship itself when a spouse is unable to become self-sufficient. It can be based on need. Under this model, spousal support will be based on economic hardship resulting from the breakdown of the marriage, but not necessarily the roles assumed during the marriage. See: Bracklow, supra.

[44] In determining need, courts ought to be guided in part by the principle that the spouse receiving support is entitled to maintain the standard of living to which she was accustomed at the time cohabitation ceased. The analysis must consider the recipient's ability to support herself, in light of her income and reasonable expenses. See: Gray v. Gray, 2014 ONCA 659.

[45] On its own, a mere disparity of income that would generate an amount under the SSAG does not automatically lead to entitlement, although a disparity of income may lead to a finding that there is an economic hardship arising from the breakdown of the marriage. There must be some evidence that the disadvantage to the recipient spouse must arise from the breakdown of the marriage. See: Lamb v. Watt, 2017 ONSC 5838. However, in practice, entitlement will generally be found in cases where there is a significant income disparity at the time of the initial application. See: Spousal Support Advisory Guidelines: The Revised User's Guide, April 2016: Professor Carol Rogerson and Professor Rollie Thompson.

[46] A basic principle of spousal support law is that the recipient must make reasonable efforts to become economically self-sufficient. See: Dingle v. Dingle, 2010 ONCJ 731.

[47] The Court of Appeal in Fisher, supra, stated that the SSAG, while only advisory, are a useful starting point to assess the quantum and duration of spousal support, once entitlement is established. The court wrote at paragraph 103:

In my view, when counsel fully address the Guidelines in argument, and a trial judge decides to award a quantum of support outside the suggested range, appellate review will be assisted by the inclusion of reasons explaining why the Guidelines do not provide an appropriate result. This is no different than a trial court distinguishing a significant authority relied upon by a party.

[48] In Mason v. Mason, 2016 ONCA 625, the Ontario Court of Appeal cautioned against courts defaulting to the middle range of the SSAG in a spousal support determination. Each case requires a contextual analysis. It wrote in paragraph 122:

[122] Further, in The Spousal Support Advisory Guidelines: A New and Improved User's Guide to the Final Version, the authors note, at p. 1 of the Introduction, that one of the challenges of the SSAGs "is the problem of unsophisticated use." The authors continue by stating:

For too many, using the Guidelines means just plugging the income figures into the software program, getting the range and choosing the mid-point. There is more to the advisory guidelines than this, and using them in this way can lead to inappropriate results.

[49] Amount and duration are interrelated parts of the SSAG formula. See: Domirti v. Domirti, 2010 BCCA 472. Using one part of the formula without the other undermines its integrity and coherence. Extending duration beyond the formula ranges, for example, may require a corresponding adjustment of amount by means of restructuring (see SSAG Ch. 10) or a finding that the facts of the case require an exception (see SSAG Ch. 12). See: Spousal Support Advisory Guidelines: Revised User's Guide, supra, Chapter 7.

[50] The SSAG set out that the first step is for the court to determine if the outcome suggested by the guideline formula is appropriate in the case.

[51] The SSAG set out that the second step, if the court considers the formula outcome to be inappropriate, is to examine if an appropriate outcome can be achieved by restructuring the duration and amount of the award. Restructuring under the SSAG can be used in at least three different ways:

(a) To front-load awards by increasing the amount beyond the formula's range for shorter duration;

(b) To extend duration beyond the formula's range by lowering the monthly amount; and

The idea is to arrive at the same global dollar award in the end. See: Jackson v. Mayerle, 2016 ONSC 72, paragraph 753.

[52] The SSAG use the length of the relationship to categorize cohabitation:

a. A short-term cohabitation is one of less than five years;

b. A medium-term cohabitation is from five to nineteen years;

c. A long-term cohabitation is twenty years or longer.

[53] Where entitlement is established, short-term marriages will usually result in limited-term support, designed to enable the recipient to either achieve self-sufficiency or adjust to a lower standard of living. In contrast, in long-term marriages, spousal support awards should generally be indefinite. See: Jackson, supra, paragraphs 745 and 746.

[54] In general, awards in highly compensatory cases tend to be at the longer end of the durational range and those in many non-compensatory cases (e.g. where the purpose of the award is to provide a transition from the higher, marital standard of living) at the shorter end of the duration range. See: Spousal Support Advisory Guidelines: Revised User's Guide, supra, Chapter 7.

Part Four – Entitlement to Spousal Support

[55] This is not a compensatory support case. The claimant did not give up employment prospects or career aspirations in the relationship. She did not contribute to the respondent's career. The evidence did not satisfy the court that she contributed more to household management than the respondent. She does not have child care responsibilities arising out of the relationship that will affect her ability to earn income.

[56] The issue is whether the claimant has a non-compensatory entitlement to spousal support.

[57] The respondent's perspective about the claimant was harsh and at times unnecessarily unkind.

[58] The respondent deposed that the parties often fought about the claimant's refusal to do anything constructive with her life. The respondent said that the claimant preferred to stay at home, sleep in, lie in bed, smoke dope and eat instead of working or going to school. He mocked her weight and physical conditioning.

[59] The respondent said that the claimant couldn't keep any of her jobs because she was unwilling to wake up to get to work on time.

[60] The respondent testified that he let the claimant follow him to Alberta, back to Newfoundland and Labrador and then to various locations in Newfoundland and Labrador. He said, "she tagged along with me". He testified, "she had nowhere else to go, her family didn't want her, what else could I do"?

[61] The respondent claimed that the claimant wasted the money he earned and this led to him to declare bankruptcy. He is still an undischarged bankrupt.

[62] The respondent was dismissive of the claimant attending Keyin College, claiming that it "milks the government for money".

[63] The respondent feels that any support he has to pay to the claimant will be wasted by her and only enable her to do nothing positive with her life. He deposed that she has to "realize that the free ride that she got is over".

[64] Overdramatically, the respondent deposed, "to give her anything would put myself and the family I'm looking to start, on the street".

[65] The respondent has a legitimate argument that the claimant has not done as much as she should have to become economically self-sufficient. She has a sporadic work history and until recently she did little to upgrade her education and work skills. She had no child care obligations. She is young and provided no documentary evidence of health limitations. However, the claimant's obligation to become self-sufficient is only one factor for the court to determine in assessing whether she is entitled to spousal support. In this case, this factor will not disentitle her to support, but will be an important consideration in determining the amount and duration of spousal support.

[66] An unusual aspect of this case is how young the claimant was when she started her spousal relationship with the respondent – she was still a child as defined by the law.

[67] The portrait of the claimant drawn by the respondent was that she was immature, aimless and exercised poor judgment – not that surprising for a young girl who had left school and her family to go to Alberta with an older and charming man who was earning very good money.

[68] The claimant became fully dependent on the respondent. She followed him back to Newfoundland and Labrador when he wanted to return there. She followed him to multiple locations in Newfoundland and Labrador when his work required these moves.

[69] The respondent conceded that the claimant did not have many job opportunities when they returned to Newfoundland and Labrador in 2013. There was work for someone with his skills, but there wasn't work for the claimant in the small towns where they lived.

[70] The court took into consideration that the parties had, as the respondent described, "no set bearings" for several years in Newfoundland and Labrador. This would have created an obstacle for the claimant to being settled enough to upgrade her education at that time.

[71] The court finds that the claimant is entitled to spousal support on a non-compensatory basis under the law of Ontario. It was a relationship of medium duration. She has suffered significant economic disadvantage arising from the end of the relationship due to her complete dependence on the respondent during the relationship and her limited education and job skills. There has been and continues to be a great disparity in the parties' incomes. The respondent has the ability to pay spousal support and the claimant is in need of it.

[72] The claimant is to be credited for upgrading her education since her relationship with the respondent ended. It is a positive step in her becoming economically self-sufficient.

Part Five – Amount and Duration

[73] The court will be ordering support on a go-forward basis. Accordingly, the court will use annual income for the respondent of $58,500 for the spousal support calculation. He has been earning income at this rate since April 1, 2019.

[74] The claimant provided no supporting documentation to support her statement that she earned $7,000 in 2018. The best evidence of her income is the $10,000 she received in 2017, as reflected in her income tax return. This income will be used for the spousal support calculation.

[75] The parties had a medium length relationship of six and three-quarters years.

[76] The SSAG produce monthly spousal support levels as follows:

Low Range - $409
Mid Range - $477
High Range - $546

[77] The SSAG set out a support duration of between 3.375 to 6.75 years, subject to variation and possible review.

[78] The evidence dictates that the spousal support award should be at the lower ends of the SSAG for both the amount and duration of spousal support for the following reasons:

a) This is a non-compensatory and not a compensatory claim for support. A compensatory claim for support will usually result in the award being ordered at the higher ends of the SSAG ranges.

b) The claimant is young, healthy and has no child-care obligations.

c) Until recently, the claimant exercised minimal effort to become economically self-sufficient. She rarely worked or looked for work. She was unreliable and couldn't maintain any employment she had. She did not go to school.

d) The respondent still has debt and is an undischarged bankrupt.

e) The respondent will soon have child care responsibilities.

[79] The court finds that the respondent should pay the claimant $425 each month for three and one-half years. This is a total of $17,850.

[80] The court believed the respondent's evidence that he has given the claimant approximately $2,000 since the separation. It found him to be very straight-forward when testifying about his employment history, the reasons why his income dropped in 2018 and his financial support of the claimant. He took pride in the fact that he has always been a hard and responsible worker and a good income earner who has looked after the people close to him.

[81] The respondent will be credited with the amount he has paid the claimant since the separation. The court also considered that the respondent wasn't able to deduct these payments from his income. The claimant did not have to include this income in her income, but given her low income, the additional income tax she would have had to pay would have been nominal. The court will exercise its discretion and give the respondent a minor credit for his tax disadvantage.

[82] The court will credit the amount of $2,500 to the respondent, reducing the total amount of spousal support he will have to pay to the claimant to $15,350.

[83] If the court ordered this amount to be paid over three and one-half years, it would result in monthly support payments of $365.48.

[84] The court finds that it is more appropriate in this case to restructure the award and order higher monthly support payments with a shorter duration for the following reasons:

a) The claimant requires more support in the short-term to assist her while she attends school. The court expects that she will be working full-time within two years.

b) The respondent expressed a clear desire to move on with his life and sever his obligations to the claimant. A shorter duration meets this objective.

c) The respondent can afford to pay the support that will be ordered.

[85] The court will order that the spousal support be paid over two years as opposed to three and one-half years. This means that the $15,350 owing will be paid at the rate of $640 each month.

[86] It is important for the respondent to know that his payments will be tax deductible. At his income level, this will result in a significant tax reduction. He should seek advice on how to have less income tax deducted at source from his employer instead of waiting until the end of the year for a tax refund. Doing this will assist him with his cash flow.

Part Six – Conclusion

[87] A final order will go on the following terms:

a) The respondent shall pay spousal support to the claimant in the amount of $640 each month, on the first day of each month, starting on September 1, 2019.

b) The respondent's support obligation to the claimant shall terminate after the August 1, 2021 payment.

c) A support deduction order shall issue.

[88] If either party finds a mathematical error in this decision, or an inputting error in the software calculations attached to this decision, they may serve and file written submissions by August 30, 2019. Any submissions are to be limited to issues with the software calculations – nothing else. If no submissions are received, the court can then issue this order. If submissions are made, court staff should not issue the order until further court direction. The other party will have until September 13, 2019 to serve and file a written response.

[89] Any written submissions should be delivered to the trial coordinator's office on the second floor of the courthouse.

Released: August 16, 2019

Justice S.B. Sherr

Strickland v. Walsh, 2019 ONCJ 574

Case Summary