Shelley Lynn Thom v. Christopher Colin Thom, 2013 ONSC 2209

SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: File No. 12-7812M
DATE: 20130412

RE: SHELLEY LYNN THOM

Applicant

v.

CHRISTOPHER COLIN THOM

Respondent

BEFORE: CONLAN J.

COUNSEL:
Ms Mary Anne Cummings, for the Applicant
Mr. Michael Forcier, for the Respondent

E N D O R S E M E N T

Conlan J.

The Facts

1The parties began cohabiting in 1997, married in August 1998 and separated in February 2012.

2They have two children: Emily, 13 years old, and Lucas, 12 years old. The children have lived with their mother since separation.

3The Applicant mother earned little income during the marriage, and she has earned very little since separation. She has been living with the children at her parents’ residence, although she is about to move in to a new home.

The Motion

4This is a Motion by the Applicant mother for child support, retroactive and ongoing; and spousal support, retroactive and ongoing.

5This decision is given after a recess to further consider the materials and the submissions of counsel before me today.

The Law

Spousal Support Generally

6The current law of spousal support in Canada offers a fairly expansive basis for entitlement. Generally, if there is a significant income disparity between the parties after separation, there will be an entitlement to some spousal support.

7The decision of the Supreme Court of Canada in Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813, created a broad basis for compensatory claims for spousal support based on economic disadvantage from the marriage or the conferral of an economic advantage on the other spouse.

8In Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 S.C.R. 420, the need basis for spousal support was outlined by the Supreme Court of Canada. A spouse may advance a non-compensatory claim based on need or hardship created by the loss of the marital standard of living.

9In determining the length of the relationship for spousal support purposes, the Court should look to the start of cohabitation, even before marriage, to the date of separation. The simplest approach is to round up or down to the nearest full year.

10“Indefinite” spousal support does not mean permanent spousal support. It simply means that the order is without a time limit at the time that it is made. Indefinite support orders remain open to variation as the circumstances of the parties change, and the orders may have review conditions attached to them. In other words, indefinite spousal support means support that is subject to the normal process of variation and review.

11Indefinite spousal support orders are more common in lengthy marriages.

12A strong compensatory claim generally favours a spousal support award at the higher end of the ranges regarding both duration and quantum. Similarly, a strong compelling need on behalf of the recipient will generally result in a spousal support award that is longer and higher in amount. There are other factors that affect duration and quantum, and some of these considerations are specified in the Divorce Act: age, number, needs and standard of living of children; needs and ability to pay of the payor; work incentives for the payor; property division and debts; and self-sufficiency incentives.

Imputation of Income

13The two leading decisions are: Bak v. Dobell, 2007 ONCA 304, [2007] O.J. No. 1489 (C.A.) and Drygala v. Pauli, 2002 41868 (ON CA).

14There is a three-step approach. First, is the spouse intentionally underemployed or unemployed? If so, is the intentional underemployment or unemployment required by virtue of the needs of the child or children or the education or health of the spouse? If no, what income is appropriate to be attributed to the spouse?

Analysis and Conclusion

15On the evidence before me, I am unable to agree with Mr. Thom that the Applicant ought to have any income attributed to her beyond that indicated in the spousal support calculations at Schedule A to her Affidavit at tab 20 of the Continuing Record. Ms. Thom is not intentionally underemployed, although the Court expects that she will find more lucrative employment once she and the children are settled in their new home.

16I find that the appropriate income to be used for Mr. Thom for support purposes is $58,023.54. As that figure is known and is reasonable, I see no justification in this case to use the average of Mr. Thom’s gross income over the past few years.

17Using that number for Mr. Thom’s gross income, Mr. Thom concedes that he underpaid child support from the time of separation to today. He ought to have paid a total of $12,930.00 for the 15 months between February 2012 and April 2013 ($862.00 monthly, per the Guidelines). He paid $4,800.00 ($400.00 monthly for 12 months). Thus, he owes $8,130.00.

18This Court Orders that Mr. Thom shall pay to the Applicant, forthwith, that retroactive amount in child support by a lump sum payment from Mr. Thom’s share of the proceeds of sale of the matrimonial home.

19This Court Orders that, commencing May 1, 2013 and on the first day of each month thereafter, Mr. Thom shall pay child support as per the Guidelines table amount based on a gross income for Mr. Thom of $58,023.54. I understand that amount to be $862.00 per month.

20I find that Ms. Thom is entitled to spousal support on both compensatory and non-compensatory bases. She has suffered an economic disadvantage arising from marital breakdown, and she has a current financial hardship created by the loss of the marital standard of living.

21I do not agree with Mr. Thom that spousal support for the Applicant ought to be time-limited. Whether this Temporary Order is varied down the road once Ms. Thom is settled in the new home with her children will have to be dealt with in due course.

22Counsel shall do the spousal support calculations using the inputs provided at Schedule A to the Applicant’s Affidavit at tab 20 of the Continuing Record, except the gross income for Mr. Thom shall be $58,023.54. The mid-range figure shall prevail.

23This Court Orders that, commencing May 1, 2013 and on the first day of each month thereafter, Mr. Thom shall pay that amount of spousal support to Ms. Thom.

24Counsel shall calculate the amount of spousal support owed by Mr. Thom for the 15 months between February 2012 and April 2013.

25This Court Orders that Mr. Thom shall pay to the Applicant, forthwith, that amount in retroactive spousal support by a lump sum payment from Mr. Thom’s share of the proceeds of sale of the matrimonial home.

26A Support Deduction Order shall issue.

27Temporary Order accordingly.

28Thank you to counsel for a well argued Motion.

Conlan J.