ONTARIO COURT OF JUSTICE DATE: 2021·03·29 COURT FILE No.: Woodstock D196/19
BETWEEN:
T.M.R. Applicant
— AND —
J.K.S. Respondent
Before: Justice S. E. J. Paull
Heard on: March 17 and 22, 2021 Reasons for Judgment released on: March 29, 2021
Counsel: Gary McQuaid, for the applicant(s) James H. Rayner, for the respondent(s)
PAULL J.:
[1] Before the court is a motion brought by T.M.R., (the mother) seeking temporary spousal support and child support for the parties’ one child. Her motion was served March 19, 2020 and not heard until March 16, 2021, in large part due to the pandemic and its impact on regular court operations.
[2] J.K.S. (the father) has also brought a motion seeking “ongoing disclosure” of T.M.R.’s income and job search efforts and an order for the sharing of daycare costs on a prorated basis, net of any subsidy. This relief is consented to by T.M.R..
[3] T.M.R. seeks temporary support based on the respondent’s income calculated to include his employment income plus grossed up rental incomes she alleges that he receives in cash.
[4] The respondent agrees to child support payable on his employment income (which the parties agree is approximately $89,000) but opposes that he has additional income, and opposes an order for spousal support on the basis that T.M.R. has not established need based on cash income she receives for her work with horses, and on the basis of the lack of a reasonable job search.
[5] A settlement conference on the motion proceeded in front of Justice Neill on January 13, 2021 where an interim order was agreed to which included joint custody with primary residence with T.M.R. with regular parenting time for J.K.S.. The order also included child support of $826 per month commencing February 1, 2021 based on an estimated income of $89,000, without prejudice to T.M.R. arguing the issue of J.K.S.’s income and arrears. The parties were also ordered to serve updated financial statements, with T.M.R. directed to attach a job search list to hers.
[6] The issues to be determined in this matter are as follows:
- What are the parties’ incomes for support purposes and what income, if any, should be imputed to the parties for the purposes of support?
- Has T.M.R. established an entitlement to spousal support?
- If entitlement is established, what is the appropriate quantum of spousal support on a temporary basis?
[7] In addition to the submissions of counsel I reviewed the affidavits at Tabs 9, 10, and 15-18, in addition to the financial statements of the parties.
The Law - Imputing Income for Support Purposes
[8] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. Clause 19(1)(a) of the Child Support Guidelines is perceived as being a test of reasonableness. Drygala v. Pauli, 2002 ONCA 41868, [2002] O.J. No. 3731 (Ont. CA).
[9] The Ontario Court of Appeal in Drygala v. Pauli set out the following three questions which should be answered by a court in considering a request to impute income:
- Is the party intentionally under-employed or unemployed?
- If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs, the needs of the child of the marriage, or reasonable health needs?
- If not, what income is appropriately imputed?
[10] The court stated in Drygala that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than what he or she is capable of earning. The court must look at whether the act is voluntary and reasonable.
[11] Under the first question in Drygala the onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552. (Ont. C.A.).
[12] Absence of a reasonable job search will also usually leave the court with no choice but to find that the payor is intentionally under-employed or unemployed. Filippetto v. Timpano, 2008 ONSC 3962, [2008] O.J. No. 417, (Ont. S.C.).
[13] The court should draw an adverse inference against the respondent for his failure to comply with his disclosure obligations as provided for in s. 21 of the Child Support Guidelines and impute income. Gray v. Rizzi, 2016 ONCA 494; Smith v. Pellegrini, 2008 ONSC 46927, [2008] O.J. No. 3616 (SCJ); Maimone v. Maimone, 2009 ONSC 25981, [2009] O.J. No. 2140 (SCJ). In Graham v. Bruto, 2008 ONCA 260, the court inferred that the failure to disclose would mitigate the obligation of the recipient to provide an evidentiary basis to impute income.
[14] Once under-employment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way. Riel v. Holland, 2003 ONCA 3433, at paragraph 23. It must be reasoned, thoughtful and highly practical. Hagner v. Hawkins, 2005 ONSC 43294, (Ont. S.C.) at paragraph 19.
[15] As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi, 2000 ONSC 22560, [2000] O.J. No. 453, (Ont. Fam. Ct.).
[16] If there is no reasonable excuse for the payor’s under-employment, the third question in Drygala requires the court to determine what income should properly be imputed in the circumstances. The court must have regard to the payor’s capacity to earn income considering such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living enjoyed during the parties’ relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. Lawson v. Lawson, 2006 ONCA 26573.
Background and Evidence
[17] T.M.R. 27 years old and J.K.S. is 35 years old.
[18] The parties have one child, L.S. born October 17, 2017. J.K.S. alleges that the parties started living together in May 2017. T.M.R. alleges that the parties began to cohabit in November 2016 and separated in August 2019, although they continued to reside in the same residence until January 1, 2020 when she, the child, and her two other children relocated.
[19] On the first day of argument on the motion counsel agreed that the start date for any orders for support would be January 1, 2021 with the issue of calculating any arrears from the date the motion was brought to be determined by counsel to account for child support payments the respondent did make prior to January 1, 2021.
[20] T.M.R. states that she has been the children’s primary caregiver since birth and was responsible for his daily needs including arranging and attending any appointments the child had.
[21] T.M.R. has a grade 11 education and her only employment has been as a waitress. She has worked over seven years at the Copper Mug, which is a restaurant/tavern in Tillsonburg. She states that prior to the pandemic she worked approximately 18 hours a week at $12.55 per hour with weekly tips of approximately $200. This amounts to annual income of $22,146.
[22] The pandemic had a significant impact on her employment. From March to December 2020 she worked only two four-hour shifts a week at the restaurant and received CERB money in the amount of $9730. More recently she states she has not worked a shift since December 2020 and now receives Employment Insurance of $1015 every two weeks. She hopes to return to her job at the restaurant at some point.
[23] For 2020 she deposed earning a total of $22,215.91 which came from a combination of E.I., CERB, and employment income. She did indicate receiving any tips from her employment at the restaurant in 2020.
[24] T.M.R.’s total reported income from previous years as noted in her Notices of Assessment/Reassessment is as follows:
2016 - $13,707.82 2017 - $8410 2018 - $10,155 2019 - $12,344
[25] J.K.S. has been employed at Marwood International for approximately 10 years. He did not dispute T.M.R.’s evidence that he works one month of days and one month of afternoons, or that she was the child’s primary caregiver while the parties were together.
[26] J.K.S.’s total reported income from previous years as noted in his Notices of Assessment is as follows:
2016 - $86,158 2017 - $79,429 2018 - $75,233 2019 - $95,644 2020 - $83,898 plus CERB payments for a total of approximately $89,000
[27] Both parties agree that J.K.S.’s employment income remains approximately $89,000 for the purpose of support. Both parties acknowledge receiving rental income in cash from other individuals residing in their homes which neither party appears to report for tax purposes. It also appears that T.M.R. does not report the tips she receives for tax purposes.
[28] With respect to rental income T.M.R. acknowledges receiving $500 a month while J.K.S. acknowledges receiving $1650 a month. There was disagreement on how these monies should impact their level of income for support purposes. T.M.R. suggests that since it is received in cash it should be “grossed up” and added to total income for support purposes. J.K.S. states that only the net proceeds after all his household expenses are deducted should be added to income, and since the amount he receives does not exceed his overall housing expenses that the net impact on his income should be $0.
Should either party’s income be imputed on a temporary basis for the purpose of support?
[29] Section 19(g) of the Child Support Guidelines permits the court to impute such income to a spouse including when a spouse unreasonably deducts expenses from income.
[30] As noted by Justice Sherr in Rodney v. Brown, 2019 ONCJ 841 (paragraphs 79-86), in some of the cases, the courts have allowed a percentage of the “hard costs” to be deducted from rental income for the purpose of calculating child support. See for example, Wilkinson v. Wilkinson, 2000 ONCJ 96. However, as the court noted in Taillefer v. Taillefer, [2012] O.J. No. 5676 (at paragraph 29) the issue becomes somewhat more complicated when dealing with rental income from a personal residence.
[31] A parent has the onus of proving their income. Where a parent seeks to deduct expenses from his income, the parent has the onus of proving those expenses as well as establishing that those expenses should be taken into account in reducing his income. Wilson v. Wilson, 2011 ONCJ 103, paragraph 122.
[32] Monies received from tenants renting space or rooms in their respective homes is income like any other. The issue is whether any or all the household expenses should be deducted from the rental income for child support purposes. Were this a separate rental unit or property, the issue would be more straightforward. The expenses incurred would be offset against the income received.
[33] I am of the view that some deduction for household expenses from the gross rent received is reasonable to the extent that the tenants occupy or share part of the home and thus should account for a portion of overall expenses. I do not agree with J.K.S. that the gross rent he receives be subject to his total household expenses, including those of himself and his family which would invariably leave no net proceeds to be included in his income.
[34] In this case J.K.S. has not provided sufficient particulars to establish what portion of overall expenses should be deducted from gross rent. Although J.K.S. filed his Notices of Assessment, his Income Tax Returns with schedules of rental income were not filed. It seems apparent that neither J.K.S. nor T.M.R. claim the rental income they receive for tax purposes. T.M.R. did not provide her Income Tax Returns beyond 2017 and it also appeared that she did not claim any tips she received for tax purposes.
[35] Further, J.K.S. did not provide evidence to establish a link between the expenses claimed and the rental income earned, in that the expenses were necessary to generate the rental income. It is also arguable that his “hard costs” would be the same regardless of whether he rented out any rooms in his home.
[36] However, to disallow any deduction for expenses fails to recognize the reality that the tenants occupy space in the home, which would represent some portion or percentage of the overall space and the carrying costs for the home.
[37] For the purpose of this motion the court will permit each party to deduct 50% of the gross rental income received for expenses with the remaining 50% added to each party’s income for the support analysis. While this is a somewhat arbitrary calculation, pending trial where there will be a more complete evidentiary record that can be properly tested, this approach seeks to achieve some rough justice to both parties by balancing the notion that they are receiving a benefit from the rent received, with the reality that there is likely some portion of the overall household expenses attributable to the renter’s occupancy of space in the home.
[38] T.M.R. acknowledges receiving $500 a month, or $6000 a year, therefore $3000 will be added to her annual income for support purposes. J.K.S. acknowledges receiving $1650 a month in rental income or $19,800 a year, therefore $9900 will be added to his annual income for the support analysis.
[39] Both parties allege the other receives more rental income than they are acknowledging, and J.K.S. also alleges that T.M.R. earns additional unreported income trading horses and providing other services in that industry. This is disputed by T.M.R.. These allegations will require viva voce evidence and cross-examination at trial before the court is able to make findings on the conflicting evidence.
[40] Overall, T.M.R. has met her onus to impute income on J.K.S. for a portion of the rental income he receives.
[41] J.K.S. has had relatively stable employment income from the same employer and the parties agree that his employment income for 2020 is approximately $89,000. For the purposes of the temporary support analysis J.K.S.’s income shall be $98,900 ($89,000 in employment income plus $9900 in rental income).
[42] With respect to T.M.R.’s income for the support analysis J.K.S. has established on the evidentiary record that starting in January 2021 T.M.R. is under employed on the basis of the lack of evidence of a reasonable job search and a lack of clear and complete financial disclosure.
[43] T.M.R. offered incomplete and at times inconsistent evidence of her level of income. She filed two financial statements in this matter. The first dated November 7, 2019 outlined $1100 in monthly employment income plus $800 per month in tips. This amounts to total annual income of $22,800. The financial statement included none of the required attachments and no certificate of financial disclosure was filed.
[44] Her second financial statement dated February 5, 2021 outlines that she has been unemployed since December 2020 as a result of the pandemic and in receipt of EI of $2191 per month plus $500 in gross rent. This totals $32,292 (but does not deduct any portion of the rent for expenses). She attached Notices of Assessment and Income Tax Returns for 2016 and 2017, and the Notices of Reassessment for 2018 and 2019. She provided no documentary evidence to support any of her income received in 2020 through EI, CERB, or the reduced employment income at the restaurant that she deposed to in her affidavit. She disclosed no tips from her two four-hour shifts a week at the restaurant from March to December 2020, or for prior to March 2020 when presumably her hours of employment and level of tips would not yet have been impacted.
[45] There was also conflicting or at best confusing evidence about her actual hours of employment over time. In her affidavit of February 26, 2020 at paragraphs 4 and 5 she deposes to hours of employment at that time totaling 18 hours a week at $12.55/hr plus approximately $200 a week in tips. These were the figures referenced in submissions which totals income of $22,146.80 which is significantly higher than any of her reported incomes for tax purposes.
[46] In her affidavit dated February 23, 2021 she deposes at paragraph 23 that at the date of separation (which she stated was August 2019 although both parties remained in the home until the end of December 2019) that she was working 36 hours a week at $12.55/hr and earned $200 in tips. There was no clarification offered for these differences.
[47] Presently she deposed that her income since December 2020 comes from Employment Insurance of approximately $24,000 plus the money she receives from rent. Her most recent financial statement notes EI of $2191 per month which totals $26,292 annually plus the money she receives in rent.
[48] She did not provide any of the required attachments to establish the EI she currently receives, or for any income she received in 2020.
[49] If a party fails to provide full disclosure related to their income, the court is entitled to draw an adverse inference and impute income to them. Szitas v. Szitas, 2012 ONSC 1548. The lack of full and clear disclosure supports an adverse inference against T.M.R. for her failure to provide complete disclosure as provided by section 21 of the Child Support Guidelines and supports the court imputing some level of income.
[50] The basis of the finding of underemployment is further supported by the lack of any evidence of a reasonable job search or other efforts by her to find alternative employment starting in January 2021.
[51] She was ordered by Justice Neill on January 13, 2021 to attach a job search list to her financial statement. She failed to do so and the only evidence she offered to support that she has made any effort to find other employment is the statement at the end of her affidavit that, “I did send/provide my name/information with an Employment Agent. I did not have one call back.”
[52] The Family Law Act imposes an obligation on every parent to provide support for his or her minor children to the extent that the parent is capable of doing so. The purposes of an order for support of a child is to recognize that each parent has an obligation to provide support for the child, and to apportion the obligation according to the Child Support Guidelines.
[53] I accept that the pandemic had a serious impact on her employment that was beyond her control and beginning in March 2020 her employment income from the restaurant would have dropped dramatically.
[54] Given the significant disruption caused by the pandemic, particularly in her area of employment, and the profound impact the pandemic had on the economy as a whole, I do not find it unreasonable that throughout 2020 T.M.R. did not search for other work. For 2020 the court would use the total of monies actually received by her from EI, CERB, and her limited employment income plus tips and net rent, to calculate her income for the support analysis.
[55] However, T.M.R.’s failure to make efforts to seek alternative employment starting in 2021 have been unreasonable in the circumstances. She has an obligation to make reasonable efforts to seek employment commensurate with her skills and experience and she has not done so.
[56] Given her limited level of education and work history finding employment would be a challenge, however, she is otherwise a healthy 27-year-old woman capable of employment. It is unreasonable that she has taken virtually no steps to do so, particularly in circumstances where it seems clear her employment in the hospitality industry has been significantly impacted by the pandemic, and likely to be for some time.
[57] She ought to be able to maintain full-time minimum wage employment even temporarily while she waits for her regular employment at the restaurant to resume.
[58] J.K.S. also alleges that T.M.R. receives significant commissions from horse trading and other services offered in that industry. This is disputed by T.M.R.. As previously noted, a trial with viva voce evidence and cross-examination will be required to address the conflicting evidence on this issue.
[59] For the purposes of the support analysis starting in 2021 T.M.R.’s annual income shall be imputed to be $33,000 which is the equivalent of a full-time minimum wage income of $30,000, plus $3000 annually in net rental income. I note that this is only marginally higher than the income she claims she is presently earning from EI and her rental income, and not significantly higher than when she was working regular hours at the restaurant before the pandemic.
The Law - Spousal Support
[60] Section 30 of the Family Law Act sets out that every spouse has an obligation to provide support for his or her spouse in accordance with need, to the extent that he or she is capable of so doing. I have considered the purposes of an order for spousal support that are set out in subsection 33(8) of the Act and the factors in determining the award set out in subsection 33(9) of the Act in making this decision.
[61] 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. Rioux v. Rioux, 2009 ONCA 569, [2009] 97 O.R. (3d) 102 (OCA). Entitlement can be based on compensatory, non-compensatory or contractual grounds. Bracklow v. Bracklow, 1999 SCC 715.
[62] Compensatory support is premised on a spousal relationship being a joint endeavor and seeks to alleviate economic disadvantage by taking into account all the circumstances of the parties, including the advantages conferred on either spouse during the relationship. It is concerned with an equitable sharing of the benefits of the relationship. Contractual entitlement, on the other hand, flows from the express or implied agreement. Finally, non-compensatory support may be ordered “where it is fit and just to do so.” Poirier v. Poirier, 2010 ONSC 920.
[63] Where compensation is not the basis, the support obligation may arise from the 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. The needs-based support could therefore consider the recipient’s ability to become self-sufficient.
[64] The Court of Appeal in Fisher v. Fisher, 2008 ONCA 11 stated that before applying the SSAG, entitlement to support must first be established.
[65] On its own, a mere disparity of income that would generate an amount under the SSAG does not automatically lead to entitlement. Lee v. Lee, 2014 BCCA 383; R.L. v. L.A.B., 2013 PESC 24. However, in practice, entitlement will generally be found in cases where there is a significant income disparity at the time of the initial application. Spousal Support Advisory Guidelines: The Revised User’s Guide, April 2016: Professor Carol Rogerson and Professor Rollie Thompson.
[66] On a temporary motion the support claimant is required to establish a prima facie case for entitlement: Politis v. Politis, 2015 ONSC 5997 at paragraph 15. The court in Politis reviewed the principles applicable to an interim motion for spousal support at paragraph 14 as follows:
- On applications for interim support the applicant's needs and the respondent's ability to pay assume greater significance;
- An interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor's ability to pay warrants it;
- On interim support applications the court does not embark on an in-depth analysis of the parties' circumstances which is better left to trial. The court achieves rough justice at best;
- The courts should not unduly emphasize any one of the statutory considerations above others;
- On interim applications the need to achieve economic self-sufficiency is often of less significance;
- Interim support should be ordered within the range suggested by the SSAG unless exceptional circumstances indicate otherwise;
- Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out;
- Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support.
[67] T.M.R. seeks an order for spousal support based on her need and J.K.S.’s ability to pay pursuant to the Spousal Support Advisory Guidelines (SSAG).
[68] J.K.S. opposes the claim on the basis that T.M.R. is healthy and employable and has not met the fundamental obligation she has to support herself or established a level of need to justify a temporary order for spousal support.
Has T.M.R. established an entitlement to spousal support?
[69] I am of the view that T.M.R. has established a prima facie case for entitlement to spousal support on a compensatory and non-compensatory basis.
[70] There was no evidence that T.M.R. left the workforce to care for the child or gave up career opportunities in the relationship. She did not contribute to the respondent’s career and it appears both parties continued with their same jobs and earned similar incomes to those prior to the relationship and the birth of the child.
[71] However, T.M.R. has a compensatory claim for spousal support based on the roles assumed during the parties’ relationship. While there was scant evidence on this issue, J.K.S. did not dispute T.M.R.’s evidence that she was the primary caregiver of the child and responsible for arranging and attending any appointments he required.
[72] T.M.R. also has a non-compensatory claim for spousal support based on the need for support and J.K.S.’s ability to pay, to assist her in transitioning to self-sufficiency.
[73] There was a significant disparity in the parties’ income during the relationship and T.M.R. would have been financially dependent on J.K.S. who consistently earned a much higher income. J.K.S. would have been aware of T.M.R.’s work history and limited income during the relationship and accepted her as she was, and clearly providing the majority of financial support for the family.
[74] Further, there continues to be a significant disparity in their incomes even on the basis of the imputed income on T.M.R. of $33,000. She was financially dependent on J.K.S. during the relationship and she has been significantly disadvantaged due to the breakdown of the relationship.
[75] She has and continues to have some need for support, and she continues to be the primary caregiver for the child. By contrast, J.K.S. continues to enjoy a substantial employment income and he earns rental income which significantly offsets his household expenses. He has not paid any support to the applicant and only began paying the appropriate level of child support starting in 2021 following the order of Justice Neill.
What is the appropriate quantum of spousal support on a temporary basis?
[76] The Court of Appeal in Fisher v. Fisher, 2008 ONCA 11, stated that the SSAG, while only advisory, are a useful starting point to assess the quantum of spousal support once entitlement is established. They have been endorsed as ideal for use on temporary support motions. D.R.M. v. R.B.M., 2006 BCSC 1921, [2006] B.C.J. No. 3299.
[77] On annual incomes of $98,900 for the respondent and $33,000 for the applicant the Spousal Support Advisory Guidelines generate a spousal support range of $297 up to $1132 per month, with the midrange being $736. This is in addition to the child support amount of $902 per month payable by the respondent to the applicant.
[78] J.K.S. takes the position that if entitlement is established that the quantum of spousal support should reflect that T.M.R. has not made reasonable efforts to seek more gainful employment.
[79] A basic principle of spousal support law is that the recipient must make reasonable efforts to become economically self-sufficient. However, I note that the right of spousal support ought not to be conditional upon a spouse demonstrating that he or she has made every effort to provide for themselves or become self-reliant. Indeed, the duty to self-support imposed on every spouse by section 30, is tempered with the words, “to the extent that he or she is capable of doing so”.
[80] As this is an interim application for spousal support the need to achieve self-sufficiency has less significance. Further, the court has already imputed income on T.M.R. starting in 2021 to reflect, in part, her failure to take reasonable steps to find alternate employment or otherwise improve her financial circumstances.
[81] While I am satisfied that J.K.S. has the ability to provide support and T.M.R. has established a level of need for support, there remains some question in my view the extent of that need based on the less than clear financial picture she provided to the court.
[82] As previously noted, a party must make full and complete financial disclosure to ensure that the information required to make a decision on the issue is before the court. The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosure obligations.
[83] The onus is on T.M.R. to support her claim for spousal support by providing a full and complete financial picture. As noted above her disclosure was incomplete.
[84] In addition to those deficiencies, there were other areas in her evidence about her financial circumstances that were not clear. For example, in her most recent financial statement she swore that she incurred $528 a month in childcare expenses. However, this appears not to be accurate. She did not dispute J.K.S.’s evidence that she receives a significant subsidy and that the net childcare expense is in fact $167.83 per month. Neither did she oppose the order sought by J.K.S. in his motion that the parties share this net amount proportionately. Claiming to incur this amount was not only misleading but had the effect of increasing the monthly deficit she claimed to have.
[85] Another example is that in her first financial statement she claimed to receive Child Tax Benefit of $1836 per month, and in her most recent financial statement it had dropped to $1180. There is no explanation on why there was this apparent change, but it had the impact of reducing her level of financial resources and increasing her monthly deficit.
[86] J.K.S. also points out that any budgetary deficit T.M.R. has is larger than it could be because she has chosen not to seek Guideline child support from the father of her two other children. T.M.R. does not dispute this. J.K.S. states that this father continues to work for the same employer that he does and earns a reasonable income. Parents have an obligation to both seek and to pay child support for their children pursuant to the Child Support Guidelines. There is merit to the argument that T.M.R.’s level of need ought not to include monies she is legally entitled to receive for the support of her other children but has chosen not to pursue.
[87] In spite of the lack of clarity in areas of T.M.R.’s financial circumstances it is clear the parties continue to have a significant disparity in income levels. The quantum of spousal support on a temporary basis should reflect the level of need she has established as well as the lack of a complete and clear financial picture she provided.
[88] It must be kept in mind that an interim support award is a temporary order only and inevitably imperfect. Cardoso v. Cardoso, 2013 ONSC 5092. It is meant to provide “a reasonably acceptable solution to a difficult problem until trial”: Chaitas v. Christopoulos, 2004 ONSC 66352, [2004] O.J. No. 907 (S.C.J.).
[89] In my view the appropriate level of temporary spousal support which balances these considerations is one that is just below the midrange. On a temporary basis commencing January 1, 2021 spousal support shall be payable at a monthly rate of $600.
[90] On the basis of the foregoing and interim order shall issue as follows:
- Commencing January 1, 2021 and monthly thereafter the respondent shall pay child support to the applicant for one child in the amount of $902 per month based on an annual income of $98,900.
- Commencing January 1, 2021 and monthly thereafter respondent shall pay spousal support to the applicant in the amount of $600 per month.
- On consent, order per paragraphs 1-4 of the motion at tab 14.
The parties are encouraged to agree on the issue of costs in this matter. However, if the parties are unable to agree the party seeking an order for costs shall serve and file written submissions, not to exceed three pages, excluding attachments which shall include a bill of costs and any offers to settle by April 12, 2021, with the responding party filing written submissions, not to exceed three pages, excluding attachments which shall include any offers to settle by April 27, 2021. If no submissions are received from the party seeking costs by the deadline there shall be no order as to costs.
Released: March 29, 2021 Signed: “Justice S. E. J. Paull”