Ontario Court of Justice

Date: February 23, 2022 Court File No.: D41467/21

Between:

DIANA MALGORZATA MULIK Applicant

Monika Curyk, for the Applicant

• and -

MICHAEL WESLEY MCFARLANE Respondent

Paul Cooper, for the Respondent

Heard: February 22, 2022

Justice S.B. Sherr

Endorsement

Part One – Introduction

[1] This motion was about how much the respondent should pay the applicant for temporary spousal support.

[2] The applicant seeks spousal support of $2,763 each month, starting on March 1, 2022.

[3] The respondent initially asked that the applicant’s motion be dismissed. He argued that she was not entitled to spousal support because she was not a spouse as defined in the Family Law Act (the Act). However, he explicitly withdrew that position during submissions. He asks the court to order temporary spousal support, starting on March 1, 2022, somewhere between the low and mid ranges of the Spousal Support Advisory Guidelines (SSAG) calculation for the parties.

Part Two – Background facts

[4] The applicant is 37 years old. The respondent is 45 years old.

[5] The parties have a 4-year-old daughter (the child). The child lives with the applicant and frequently sees the respondent.

[6] The parties are not married.

[7] The applicant came to Canada in 2008. She married in 2009 and had a child (the older child) from that relationship in 2009. The applicant described it as an abusive marriage. She said that she separated from her spouse in 2012 and moved into a shelter with the older child. She did not have immigration status at that time.

[8] On October 24, 2012, the applicant obtained a final custody order for the older child. Her husband was ordered to pay her child support of $170 each month, based on an annual income of $21,300.

[9] The parties met and began their relationship in September 2014. They ended their relationship in September 2020. The applicant deposed that she and the respondent resided together until February 2017. She said that between February 2017 and September 2020, their relationship was “off and on”, but that they spent most nights together.

[10] The court was advised at this hearing that the respondent now lives with his parents and his 13-year-old child from another relationship.

[11] The applicant issued her application on June 2, 2021.

[12] On October 21, 2021, on consent, temporary without prejudice orders were made that the respondent have weekend parenting time with the child, and based on an annual income of $129,996, that he pay child support of $1,146 per month.

[13] On December 13, 2021, timelines were set for the hearing of this motion.

Part Three – Legal considerations

[14] 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. Subsection 33 (8) of the Act sets out the purposes of spousal support and subsection 33 (9) of the Act sets out how to determine the amount of spousal support. The court has considered these provisions in making this order.

[15] 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. Entitlement can be based on compensatory, non-compensatory or contractual grounds. See: Bracklow v. Bracklow.

[16] The court in Politis reviewed the principles applicable to a temporary motion for spousal support at paragraph 14 as follows:

1. On applications for interim support the applicant's needs and the respondent's ability to pay assume greater significance;
2. 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;
3. 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;
4. The courts should not unduly emphasize any one of the statutory considerations above others;
5. On interim applications the need to achieve economic self-sufficiency is often of less significance;
6. Interim support should be ordered within the range suggested by the SSAG unless exceptional circumstances indicate otherwise;
7. Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out;
8. 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.

[17] It must be kept in mind that a temporary support award is a temporary order only and inevitably imperfect. See: Cardoso v. Cardoso, 2013 ONSC 5092. It is meant to provide “a reasonably acceptable solution to a difficult problem until trial”: See: Chaitas v. Christopoulos, [2004] O.J. No. 907 (S.C.J.).

[18] 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. See: D.R.M. v. R.B.M., 2006 BCSC 1921. Both parties presented the court with SSAG software calculations.

[19] In Mason v. Mason, 2016 ONCA 725, 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.

[20] A strong compensatory claim suggests support in the higher end of the ranges for both amount and duration. See: Wharry v. Wharry, 2016 ONCA 930, paragraph 95.

[21] The depth of need can be a strong non-compensatory factor pushing the amount of support higher in the range. See: Bastarache v. Bastarache, 2012 NBQB 75. If the recipient required training or education to improve their earning capacity, this can push the amount higher in the range for a short period of time. See: Jones v. Hugo, 2012 ONCJ 211.

Part Four – Positions and evidence of the parties

[22] The applicant claims that she is entitled to spousal support on both a compensatory and non-compensatory basis.

[23] The applicant states that the respondent stopped working soon after they started their relationship and she supported him. She said that she worked as a cleaner until February 2017. She then obtained permanent resident status and went on Ontario Works.

[24] The applicant attested that she was in receipt of Ontario Works until September 2019 when she started school full-time at George Brown College in the English for Academic Purposes program. She stated that she supported the entire family on student loans, Canada Child Benefits and $200 per month child support for the older child.

[25] The applicant said that the respondent frequently changed jobs and never informed her how much he earned. He didn’t contribute to rent or to her other expenses.

[26] The applicant deposed that she completed her course at George Brown College in March 2021. In June 2021, she enrolled in Andersen College of Health, Business and Technology in the Toronto Law Enforcement/Police Foundations program. She is still in school and hopes to complete this course in April 2022. She said that she will then actively seek employment.

[27] The applicant deposed that she did not obtain disclosure of the respondent’s income until she started this case and that he has failed to provide her with any updated financial disclosure since his financial statement was sworn in October 2021. She said that the respondent has not provided any evidence of his living arrangements and how expenses are paid in his household.

[28] The applicant states that the respondent is already in significant default of the temporary child support order made on October 21, 2021. She says that the respondent will not pay her support unless he is compelled to do so.

[29] The respondent did not contest most of the applicant’s evidence. Rather, he relied on her evidence as proof that she was not economically dependent upon him during their relationship and that she suffered no economic disadvantage due to the breakdown of the relationship.

[30] The respondent disputed that the applicant has a compensatory claim for support. He also claimed that she had a limited need for support. He felt that she should be working part-time and claimed that her ex-husband was giving her cash each week. He pointed out that the applicant could afford annual vacations.

Part Five – Incomes of the parties

[31] The applicant estimates that she will receive $17,000 in student grants in 2022. The parties both used this income amount for the applicant in their SSAG calculations.

[32] The applicant stated that she now receives $300 each month for child support for the older child, based on that child’s father’s annual income of $34,000.

[33] The respondent filed his 2018 to 2020 notices of assessment setting out the following annual income:

2018 - $84,939 2019 - $109,046 2020 - $118,176

[34] The respondent advised the court at the hearing that he started a new job on December 6, 2021. However, he provided the court with no evidence about this job.

[35] The respondent asked the court to use his 2020 income of $118,176 for the spousal support analysis. The court is not prepared to do this. The respondent represented that his annual income was $129,996 in his only financial statement filed with the court in 2021. He agreed to use this amount to calculate his temporary support obligation on October 21, 2021. He failed to serve and file and updated financial statement, as required. An adverse inference is drawn against him.

[36] The court will use $129,996 as the respondent’s annual income for the purpose of the temporary spousal support calculation.

Part Six – Analysis

[37] Based on the applicant’s annual income of $17,000 and the respondent’s annual income of $129,996, the SSAG ranges are as follows:

Low range - $1,734 each month Mid range - $2,282 each month High range - $2,746 each month

[38] The court gave little or no weight to the following submissions made by the respondent:

a) The respondent claimed at the hearing that he supports his 13-year-old child and his parents and accordingly, has a reduced ability to pay support. However, the respondent disclosed none of this evidence in advance of the hearing and provided no details about who pays for what in his home. This submission can be explored further at trial once the respondent makes full disclosure. b) The respondent claimed that the applicant has a limited need for support because she goes on vacations each year. However, the applicant explained in detail how she is able to afford discount trips. The court finds that she is leading a very modest lifestyle. c) The respondent claimed that the applicant should be working part-time to supplement her income. This is unfair. She is a single mother of two children who is financially struggling to support her family, with little help from the respondent. English is not her first language. She is working very hard to become economically self-sufficient. She has upgraded her English skills. She is pursuing a career path that is reasonable. She has learned that she cannot rely on the respondent to support her and the child. d) The respondent claimed that if the applicant has suffered economic disadvantage, it was due to her relationship with the older child’s father. He felt that she should be seeking spousal support from him. However, the respondent provided no evidence that the older child’s father could afford to pay spousal support to the applicant, or that it would make any sense for the applicant to pursue that claim. e) The respondent claimed that the older child’s father is giving the applicant $200 to $300 each week in cash. This was a bald allegation that was denied by the applicant. The respondent provided no other evidence to support this claim. This allegation can also be explored further at trial.

[39] The court gave some weight to the following submissions by the respondent:

a) Based on the applicant’s evidence, she was never financially dependent upon the respondent during the relationship. She supported him. Financially, she was probably better off when they separated and she no longer had to support him. However, the court also considered that the respondent should have been financially contributing to the family during the relationship. The court is disinclined to reward him for his financial irresponsibility. b) The applicant is receiving substantial student loans from the Ontario government, reducing her immediate need for a large support order. However, she will need to pay these loans back. The respondent, and not the taxpayer, should be supporting the applicant at this time.

[40] The court gave much more weight to the fact that the respondent is exercising significant parenting time with the child. The child is with him every Friday evening until Monday morning. This creates extra expense for the respondent and affects his ability to pay spousal support.

[41] There are several factors that favour ordering support towards the high range of the SSAG. These factors are:

a) There is a prima facie case that there is a compensatory basis to the applicant’s support claim as: i) The applicant delayed returning to school to upgrade her education due to her roles in the relationship. This has adversely impacted her marketability and earning potential. From September 2014 until February 2017, the applicant was the sole financial supporter of the family, working full-time as a cleaner and primarily caring for the older child. She even gave the respondent $3,000 towards the purchase of his present vehicle. ii) The applicant has been the primary caregiver for the child [^1]. These responsibilities have had and will likely continue to have an adverse impact on her marketability and earning potential. iii) The respondent has been able to advance his career, pursue employment opportunities and earn substantial income while the applicant has assumed the majority of child-care responsibilities. b) The applicant has a strong non-compensatory claim for support. She has no source of revenue other that Canada Child Benefits, OSAP loans and grants, and child support. There is a huge discrepancy in the parties’ incomes. The respondent leads a much better lifestyle than the respondent. For example, he is able to afford to pay over $1,500 each month for vehicle expenses. c) The respondent has not met his financial responsibilities to the applicant and the child. It appears that he did not disclose his income to the applicant during their relationship and let her assume most of the financial responsibility for their family – even though he had the ability to pay support. He paid no child support until the applicant brought the case to court. Even after agreeing to pay child support in October 2021, he has gone into significant arrears, without explanation. His first support payment was made in December 2021. He has failed to provide the required financial disclosure. It is has become evident that he is resistant to paying fair support. d) This level of support may be short-term as the applicant will be completing her training to improve her earning capacity. The applicant plans to pursue employment when she finishes her course in April 2022. The trial judge will be able to adjust the amount of support, if merited.

[42] The respondent is very fortunate that the applicant is only asking that the temporary support order start on March 1, 2022. This is more than fair to the respondent.

[43] It is time that the respondent pay fair spousal support to the applicant. He will be ordered to pay her $2,400 each month, starting on March 1, 2022.

Part Seven – Conclusion

[44] A temporary order shall go on the following terms:

a) The respondent shall pay spousal support to the applicant of $2,400 each month, starting on March 1, 2022. b) A support deduction order shall issue.

[45] If either party seeks costs, they shall serve and file written submissions by March 31, 2022. The other party will then have until April 14, 2022 to serve and file their written response (not to make their own costs request). The submissions shall not exceed 3 pages, not including any bill of costs or offer to settle. They are to be either delivered or emailed to the trial coordinator’s office.

[46] The court thanks counsel for their professional presentation of the motion.

Released: February 23, 2022 Justice S.B. Sherr

[^1]: The respondent argues that this is due to unilateral decisions made by the applicant. This can be further explored at trial.