ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-10-0328
(Brampton)
DATE: 2012-09-19
BETWEEN:
KULDIP SINGH AUJLA Applicant – and – RAJVINDER KAUR SINGH a.k.a. RAJVINDER KAUR AUJLA Respondent
Kuldip Singh Aujla, Self-Represented
Robert K. McQueen, Counsel for the Respondent
HEARD: September 12 & 13, 2012
R E A S O N S F O R J U D G M E N T
GRAY J.
[ 1 ] There is one issue in this case: spousal support. The respondent has multiple sclerosis, and lives in a nursing home. Her only source of income is Canada Pension Plan Disability Benefits and long-term disability through her previous employer. The parties are young, each being in his or her 30s.
[ 2 ] The Spousal Support Advisory Guidelines suggest a range of support between $156 per month and $208 per month, for a maximum period of five years. The respondent claims spousal support in the amount of $1,000 per month for an indefinite period.
Background
[ 3 ] The respondent was born in Canada in 1977. The applicant was born in India in 1980.
[ 4 ] The parties were married in India on August 28, 2004. It was an arranged marriage. They have no children.
[ 5 ] The parties separated in June, 2009, less than five years after they married.
[ 6 ] The applicant did not arrive in Canada until May, 2006. He failed his original immigration interview, and had to appeal. The respondent paid for a lawyer to assist him in getting into Canada.
[ 7 ] The respondent was gainfully employed prior to becoming disabled, about which more will be said later.
[ 8 ] The applicant formed his own business to earn income. He incorporated a company called A-One Mobile Tire Service Inc. His main, and probably only, customer was A-1 Truck Repairs. In 2008, he earned approximately $34,000, and in 2009 and 2010 he earned approximately $48,000 in each year.
[ 9 ] The applicant played a sport called Kabaddi, and apparently was paid something for doing so. There was no evidence tendered as to how much he was paid.
[ 10 ] Recently, the applicant moved to Alberta. He says he lost the work for A-1 Truck Repairs. He says he earned $41,000 in 2011, and thinks he might earn approximately $20,000 this year.
[ 11 ] The respondent was diagnosed with multiple sclerosis a few months after the applicant arrived in Canada. She was diagnosed in January, 2007, and on August 23, 2007, she stopped working. The disease is incurable, and will continue to get worse.
[ 12 ] The respondent testified that after being diagnosed with multiple sclerosis, she could no longer perform household tasks such as cooking and cleaning. The applicant became frustrated, and told her she was no longer any good. He asked if he could bring in another woman who could do household tasks and bear children for him.
[ 13 ] The respondent testified that she sponsored the applicant’s parents to come to Canada from India. She paid $6,000 in order to do so. The applicant’s parents are no longer living in Canada.
[ 14 ] Recently, the respondent entered a nursing home in Brampton. She pays Leisureworld $2,166.58 per month. She is in a wheelchair, and cannot perform even basic tasks.
[ 15 ] The respondent underwent an experimental medical procedure in India, and obtained a loan to pay for it. She pays $278.97 per month to defray the loan.
[ 16 ] Apart from a tiny amount in GST tax rebates, the respondent’s only sources of income are Canada Pension Plan Disability Benefits; long-term disability paid by Manulife; and interim spousal support ordered by Snowie J. In 2011, the respondent received $9,161.76 in CPP Disability Benefits, and $7,275.24 in long-term disability benefits from Manulife. Since March, 2011, she has received $600 per month in interim spousal support pursuant to the order of Snowie J. dated March 1, 2011.
Submissions
[ 17 ] Mr. McQueen, counsel for the respondent, submits that I should make an order for spousal support in favour of his client, in the amount of $1,000 per month for an indefinite period. He acknowledges that a strict application of the Spousal Support Advisory Guidelines would suggest a range of spousal support from $156 per month to $208 per month, for between two and five years. However, he submits that spousal support in that range would be totally inadequate in the circumstances.
[ 18 ] Mr. McQueen furnished me with a DivorceMate printout that discloses, based on the parties’ respective incomes (with an attributed income of $48,000 to the applicant) and the length of the marriage, a range of suggested spousal support from $154 per month to $208 per month, with a mid-range amount of $182 per month, for a duration of 2 to 4 years. Since the marriage was actually closer to 5 years, I will assume the maximum duration of support is 5 years.
[ 19 ] Mr. McQueen submits that having regard to the need of the respondent, an award of spousal support in the amount she requests is appropriate, notwithstanding the Guidelines. She is completely unemployable, and anything less will leave her destitute. Apart from spousal support, her income is fixed, and is entirely beyond her control. In addition, her expenses are entirely beyond her control, and indeed they are relatively modest. Anything less than the amount she has requested will mean that she will be in poverty, and cannot live with any dignity.
[ 20 ] Mr. McQueen submits that for several years the applicant earned $48,000 per year, not including the amount he was presumably paid in cash for paying Kabaddi. It should be assumed that he is capable of earning at least $48,000 per year, and regardless of his actual income now, income should be attributed to him at that level. If he is required to pay $1,000 per month in spousal support, it will mean the parties will end up with approximately equal amounts in net disposal income. By contrast, if the applicant is required to pay spousal support at the mid range of the Spousal Support Advisory Guidelines, he will end up with 64.8% of net disposal income, and the respondent 35.2%. At the high end of the range, the figures are 64.3% and 35.7% respectively.
[ 21 ] The applicant, who is self-represented, submits that he simply cannot afford to pay $1,000 per month in spousal support. Indeed, he says he cannot pay the $600 per month ordered by Snowie J., although he has paid the required amount by borrowing money from his family.
[ 22 ] The applicant submits that he wants to be fair with the respondent, and he is prepared to pay $400 per month.
Analysis
[ 23 ] The Spousal Support Advisory Guidelines have been with us, in one form or another, since 2005. The current version of the Guidelines was published in July, 2008, and a “New and Improved User’s Guide to the Final Version” was prepared, that includes new case law up to the end of March, 2010.
[ 24 ] By and large, the Guidelines are utilized through the application of computer software. Information is inserted, and the computer generates a “range” of spousal support, both in terms of amount and duration. It is fair to say that the Guidelines cannot realistically be used without the assistance of computer software.
[ 25 ] The Guidelines themselves contemplate two formulas: a “without child” calculation, and a “with child” calculation. The “without child” calculation is relevant here.
[ 26 ] The Guidelines are published by the Government of Canada, and when printed from the Government’s website, they come to 166 closely-spaced pages. They do not include the “New and Improved User’s Guide”, that was published later.
[ 27 ] The intent of the Guidelines is to bring some order and predictability to the calculation of spousal support, having regard to the discretionary language of s. 15.2(1) of the Divorce Act, which authorizes the Court to require a spouse to pay such sum “...as the court thinks reasonable for the support of the other spouse.”
[ 28 ] The factors the Court is to consider are also prescribed in discretionary language, and are set out in s. 15.2(4), which provides:
(4) FACTORS – In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse , including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
[emphasis added]
[ 29 ] According to the authors of the Guidelines, Professors Carol Rogerson and Rollie Thompson, the Guidelines are intended to reflect “best practices and emerging trends across the country.”
[ 30 ] The essence of the basic “without child” formula is described in § 3.3.3 of the Guidelines, as follows:
3.3.3 The without child support formula
In cases where there are no dependent children, the without child support formula applies. This formula relies heavily upon length of marriage – or more precisely, the length of relationship, including periods of pre-marital cohabitation – to determine both the amount and duration of support. Both amount and duration increase with the length of the relationship. This formula is constructed around the concept of merger over time which offers a useful tool for implementing both compensatory and non-compensatory support objectives in cases where there are no dependent children in a way that reflects general patterns in the current law.
Under the basic without child support formula:
• The amount of spousal support is 1.5 to 2 percent of the difference between the spouses’ gross incomes for each year of marriage, to a maximum range of 37.5 to 50 per cent of the gross income difference for marriages of 25 years or more. (The upper end of this maximum range is capped at the amount that would result in equalization of the spouses’ net incomes – the net income cap.)
• Duration is .5 to 1 year of support for each year of marriage, with duration becoming indefinite (duration not specified) after 20 years or , if the marriage has lasted 5 years or longer, when the years of marriage and age of the support recipient (at separation) added together total 65 or more (the “rule of 65”).
[ 31 ] As can be seen from the formula quoted above, the range of spousal support, in terms of the amount, is dependent upon the difference between the spouses’ gross incomes. The duration of spousal support is dependent upon the length of the marriage or cohabitation.
[ 32 ] The Guidelines are “advisory” – in other words, they are not binding. Nevertheless, many courts have given them a good deal of weight. In Ontario, significant guidance has been given by the Court of Appeal in Fisher v. Fisher (2008), 2008 ONCA 11, 88 O.R. (3d) 241 (C.A.). At paras. 93 – 113, Lang J.A. discussed the Guidelines in some depth.
[ 33 ] At para. 94, Lang J.A. stated:
The Guidelines were drafted under the aegis of the federal Department of Justice by the highly-regarded family law professors, Carol Rogerson and Rollie Thompson. The objective of the Guidelines is to bring certainty and predictability to spousal support awards under the Divorce Act. For this purpose, they employ an income-sharing model of support, that if proven viable, will reduce the need to rely on the labour-intensive, and thus expensive, budget-based evidence employed in a typical case. In this way, in a manner quite different from the Child Support Guidelines (CSGs), the Guidelines aspire to reduce the expense of litigation of spousal support by promoting resolution for the average case.
[ 34 ] At para. 98, she stated:
Importantly, the Guidelines do not impose a radically new approach. Instead, they suggest a range of both amount and duration of support that reflects the current law. Because they purport to represent a distillation of current case law, they are comparable to counsel’s submissions about an appropriate range of support based on applicable jurisprudence. However, if the Guidelines suggest a range that conflicts with applicable authorities, the authorities prevail.
[ 35 ] Importantly, in my view, Lang J.A. stated, at para. 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.
[ 36 ] In my view, this signals the view of the Court of Appeal that the Guidelines, although not binding, are an important tool that should guide courts in arriving at a sensible range of support. Ordinarily, the selection of a particular amount for a particular duration, within the range, will be selected based on the particular circumstances of the case. If the trial judge is to select an amount or duration that falls outside the Guidelines, the judge should explain why.
[ 37 ] The Guidelines themselves recognize that there may be exceptional circumstances. One of those exceptional circumstances is illness and disability. Because of the importance that this has to this particular case, I will reproduce a number of excerpts from the Guidelines, as follows:
12.4 Illness and Disability
Many cases of illness or disability can be accommodated within the formulas. The central concern in many of these cases will be the recipient’s need for long-term or indefinite support. Indefinite (duration not specified) support would be available under the formulas after 20 years of marriage or based upon the “rule of 65”. And, in most medium-to-long marriages, with or without children, the ranges for duration and amount offer considerable scope to accommodate the needs of an ill or disabled spouse. Disability will be an important factor in locating the amount and duration within the ranges in these cases, a point already noted above in Chapter 9.
For many cases, however, neither the breadth of the ranges nor the expanded possibilities of restructuring are seen to provide an adequate response to illness or disability. In these cases, there are three distinct approaches to long-term disability, three approaches that became more sharply defined after Bracklow in1999. Because these are “hard” cases, more of them turn up in the reported decisions. Below we have framed these three approaches using the language of the Advisory Guidelines, as courts increasingly have used the Guidelines to consider these issues.
Faced with a recipient with a long-term disability, Canadian courts have responded with one of three approaches, here stated in declining order of frequency.
(i) Lower Amount , Extend Duration: most courts will extend duration, even to the “indefinite”, while keeping the amount within the range, at or near the low end;
(ii) No Exception: a slightly smaller number of courts will fix an amount in the range, often towards the upper end, and use the maximum duration, even though that means support will end while need continues;
(iii) Increase Amount, Extend Duration: a much smaller group of courts will respond to the greater need in disability cases by increasing amount and extending duration.
After Bracklow, the law in this area remains uncertain. In our view, the third approach is the least consistent with Bracklow. The case law is dominated by the first two approaches, each of which can find support in the Bracklow decision. Our preference would be the second, “no exception” approach, which seems more consistent with the modern limits of spousal support as a remedy. But a slight majority of the reported cases see these cases as exceptions, mostly preferring the first, “lower amount, extended duration” approach. For now, as there is no dominant pattern or trend in the case law, we must recognize the possibility of an exception for these cases and leave the law to develop. [Emphasis added]
[ 38 ] The authors expanded on the illness and disability exception in the “New and Improved User’s Guide”, as follows:
Illness and disability (FV 12.4)
A disproportionate number of cases that come before the courts involve the illness or disability of the recipient spouse, as these are hard cases that don’t settle. Especially difficult are the cases that involve permanent illness or disability after a short-to-medium marriage. The law in these cases is particularly uncertain and confused at the moment, as the courts can’t seem to work out a consistent approach. The Supreme Court of Canada addressed some of these issues in Bracklow, but we see the effects of its lack of guidance in these cases. Illness and disability was recognized as an exception in the Draft Proposal, but even the scope and operation of the exception is hard to nail down under the current law.
Under the Advisory Guidelines, most of these cases fall under the without child support formula or the custodial payor formula. The formulas produce ranges for amount and duration that seem “too low” or “too short”, certainly to recipients. Payors will want to argue the formula ranges, primarily to time limit their spousal support in short-to-medium marriages.
Three approaches to disability cases can be identified in the decided cases, with the first and second being the most common:
• Increase Amount, Extend Duration: Many courts respond to the greater need in disability cases by increasing the amount and extending the duration of support: [case law omitted]
• No Exception : Disability cases should be resolved within the formula ranges, for both amount and duration, according to a slightly-smaller group of cases. In effect, these courts do not recognize any disability exception. [case law omitted]
• Lower Amount, Extend Duration: Some courts will extend the duration of spousal support, even to be “indefinite”, while keeping the amount within the range, often at or near the low end: [case law omitted]
Until appellate courts provide further guidance, these divergent approaches towards illness and disability will continue. [Emphasis added]
[ 39 ] As noted, in the original Guidelines the authors summarized three responses by courts to the issue of support recipients who have a long-term disability. That order, in terms of frequency, was stated to be: “Lower Amount, Extend Duration”; “No Exception”; and “Increased Amount, Extend Duration”. In the “New and Improved User’s Guide”, the first and second most common approaches are now said to be “Increase Amount, Extend Duration”, and “No Exception”. As noted in the Guidelines themselves, the preference of the authors is “No Exception”, that is, an amount should be fixed within the appropriate range, notwithstanding the recipient’s disability.
[ 40 ] The case discussed by the authors, and the case that gave rise to an entitlement to spousal support by a disabled spouse regardless of the absence of a compensatory claim, is Bracklow v. Bracklow, 1999 715 (SCC), [1999] S.C.J. No. 14. In that case, McLachlin J. (as she then was) extensively analyzed the theoretical bases for claims of spousal support, and concluded that such a claim can be compensatory in nature; contractual in nature; or non-compensatory, as was the case in Bracklow itself. Similar to the case before me, the length of the marriage was modest in duration, seven years, and the wife became totally disabled from working. She was unable to establish any contractual or compensatory basis for her claim, and it was dismissed by the trial judge and by the British Columbia Court of Appeal. The Supreme Court of Canada allowed the wife’s appeal and held that her claim could be maintained on a non-compensatory basis. At para. 48, McLachlin J. stated:
Divorce ends the marriage. Yet in some circumstances the law may require that a healthy party continue to support a disabled party, absent contractual or compensatory entitlement. Justice and considerations of fairness may demand no less.
[ 41 ] In words that have sometimes been interpreted to mean that the healthy spouse bears the main obligation of maintaining a disabled spouse, McLachlin J. stated, in discussing the non-compensatory basis of spousal support, at para. 31:
Finally, it places the primary burden of support for a needy partner who cannot attain post-marital self-sufficiency on the partners to the relationship, rather than on the state, recognizing the potential injustice of foisting a helpless former partner onto the public assistance rolls.
[ 42 ] However, she subsequently made it clear that the healthy spouse cannot always be expected to bear the entire burden of caring for the disabled spouse. At para. 54, she stated:
It does not follow from the fact that need serves as the predicate for support that the quantum of the support must always equal the amount of the need. Nothing in either the Family Relations Act or the Divorce Act forecloses an order for support of a portion of the claimant’s need, whether viewed in terms of periodic amount or duration. Need is but one factor to be considered. This is consistent with the modern recognition, captured by the statutes, of the variety of martial relationships in modern society. A spouse who becomes disabled toward the end of a very short marriage may well be entitled to support by virtue of her need, but it may be unfair, under the circumstances, to order the full payment of that need by the supporting spouse for the indefinite future. [Emphasis added]
[ 43 ] It is noteworthy that when Bracklow was returned to the Supreme Court of British Columbia, the trial judge, Smith J., awarded the wife $400 per month for five years: see Bracklow v. Bracklow (1999), 1999 5311 (BC SC), 3 R.F.L. (5th) 179 (B.C.S.C.).
[ 44 ] In the case before me, the respondent’s claim for spousal support is almost entirely non-compensatory. It is true that she sponsored the applicant into Canada, but it is not clear from the evidence that the applicant’s situation is significantly better here than it was in India. It is also true that the respondent paid $6,000 as her contribution to sponsor the applicant’s parents into Canada.
[ 45 ] As noted, it is not entirely clear that the applicant’s situation is significantly better here than it was in India. Since arriving in Canada, his income has been relatively steady, although not spectacular. The respondent did not give up any part of her career in order to further the applicant’s interests. Until she became disabled, she was gainfully employed. She lost her employment because of her disability, not because of anything to do with her marriage.
[ 46 ] Apart from the amounts the respondent has received through the interim spousal support order of Snowie J., her income is restricted to CPP Disability Benefits and long-term disability. That comes to approximately $16,500 per year.
[ 47 ] While the applicant says he now earns considerably less in Alberta than he earned in Ontario, I am prepared to attribute income to him at the level of $48,000 per year. He is a young man, and his skills have allowed him to earn $48,000 per year. I assume that if he applies himself he can earn the same in Alberta or anywhere else he may choose to live in Canada.
[ 48 ] As noted earlier, assuming these levels of income, the “without child” formula under the Guidelines produces a range between $156 per month and $208 per month, for between two and five years. The respondent has already received, under the interim order of Snowie J., $600 per month for almost one and a half years. At that rate, if one uses the maximum amount and duration generated by the formula, the applicant has almost entirely defrayed his obligation to pay spousal support under the Guidelines. He has paid almost $11,000 in spousal support, while under the formula his maximum obligation would be $12,480.
[ 49 ] Mr. McQueen submits that his client should receive $1,000 per month indefinitely. This would generate almost five times the maximum monthly amount required by the formula, and would ignore entirely the maximum duration. Are the circumstances such that this is an appropriate case to require the applicant to pay such an amount for an indefinite period, notwithstanding the Guidelines? In my view, the answer is no.
[ 50 ] These cases are very difficult. This is recognized by the authors of the Guidelines, but they suggest that notwithstanding the difficulty, the Guidelines should be adhered to even in the case of a disabled recipient.
[ 51 ] As recognized in Bracklow itself, the maintenance of a totally disabled spouse requires a delicate balancing of interests. To the extent that he or she is able, the disabled person must contribute to his or her own welfare. The family of the disabled person may be called upon to assist. Society at large will likely be required to contribute. As held in Bracklow, the healthy spouse will also be required to contribute.
[ 52 ] However, as noted by McLachlin J. at para. 54 of Bracklow, it will not necessarily be fair to require the healthy spouse to satisfy the entire need of the disabled spouse, any more than it would be appropriate to require anyone else to satisfy the entire need.
[ 53 ] In this case, the marriage was of relatively short duration. The applicant’s income, while not insignificant, is not high. He is a young man. It would be unfair, in my view, to saddle him with the amount claimed by the respondent for what is likely to be many years to come.
[ 54 ] During his submissions, I asked counsel for the respondent if he was aware of any case where spousal support had been ordered in an amount that is five times the amount suggested by the Guidelines. He was not aware of any such case. Nor am I.
[ 55 ] While the authors of the Guidelines suggest that in a case involving disability the best approach is to stay within the Guidelines, I am prepared to exceed them to an extent in this case. The respondent has multiple sclerosis. She is in a wheelchair, and cannot do anything but the most basic things. She is unable to look after herself in any meaningful way. She is in a nursing home, and will likely be there for the balance of her life. Her income is very modest.
[ 56 ] Notwithstanding that the Guidelines suggest a maximum duration of spousal support of five years, I will order the applicant to pay spousal support for an indefinite period, subject only to variation based on a material change in circumstances.
[ 57 ] Notwithstanding that the Guidelines prescribe a maximum amount of spousal support of $208 per month, I am prepared to award spousal support in the amount of $300 per month, approximately one and a half times the maximum, commencing October 1, 2012. While the applicant indicated he is prepared to pay $400 per month (approximately double the Guideline maximum), if I were going to order that amount I would put a cap on the duration, particularly having regard to the amounts already paid under the interim order. I am more inclined to order a smaller amount, that is still 1-1/2 times the maximum Guideline amount, but for an indefinite period. Commencing October 1, 2012, the applicant shall pay $300 per month in spousal support for an indefinite period, subject to variation in the event of a material change in circumstances. The respondent shall not be required to repay any of the amounts paid under the interim order.
[ 58 ] In the circumstances, I think this is a reasonable and fair disposition of the matter, and I so order.
[ 59 ] This is not a case for costs.
GRAY J.
Released: September 19, 2012
COURT FILE NO.: FS-10-0328
(Brampton)
DATE: 2012-09-19
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: KULDIP SINGH AUJLA Applicant – and – RAJVINDER KAUR SINGH a.k.a. RAJVINDER KAUR AUJLA Respondent REASONS FOR JUDGMENT GRAY J.
Released: September 19, 2012