ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-13-258
DATE: 2013-12-20
B E T W E E N:
SAMUEL MAX PETER SELGRAD
Ms. T. Boisvert for the Applicant
Applicant
- and -
VALERIE JUNE DAVIES
Ms. S. Filipovic for the Respondent
Respondent
HEARD: December 19, 2013,
at Thunder Bay, Ontario
Mr. Justice J. deP. Wright
Reasons on Motion
[1] This is a motion for temporary spousal support brought under the Family Law Act by the male spouse against the female spouse.
[2] The parties were never married. Never the less, the parties are treated under the Family Law Act as though they were married.
[3] S. 29 of the Family Law Act provides:
In this Part, . . .
“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”) R.S.O. 1990, c. F.3, s. 29; 1999, c. 6, s. 25 (2); 2005, c. 5, s. 27 (4-6); 2009, c. 11, s. 30.
[4] In this case the parties began to cohabit 2000. They separated in March, 2013.
[5] The rules are the same whether the claimant is male or female. As Madam Justice L’Heureux-Dube said in Moge v. Moge 1992 25 (SCC), [1992] 3 S.C.R. 813 at 859:
what the act requires is a fair and equitable distribution of resources to alleviate the economic consequences of marriage or marriage breakdown for both spouses, regardless of gender. The reality is that in many if not most marriages the wife still remains the economically disadvantaged partner. There may be times when the reverse is true and the act is equally able to accommodate this eventuality.
In the same case it was said:
The support provisions of the act are intended to deal with the economic consequences, of both parties, of the marriage or its breakdown. . . Spousal support . . . is not about the emotional and social benefits of marriage. The purpose of spousal support is to relieve the economic hardship that results from "marriage or its breakdown". Whatever the respective advantages to the parties of a marriage in other areas, the focus of the inquiry when assessing spousal support after the marriage has ended must be the effect of the marriage in either impairing or improving each party's economic prospects . . .
Marriage is an economic unit which generates financial benefits. In today’s marital relationships, partners should expect and are entitled to share those financial benefits. Equitable distribution can be achieved in many ways: by spousal and child support, by the division of property and assets, or by a combination of property and support title once. In many if not in most cases, the absence of accumulated assets may require that one spouse pay support to the other in order to effect an equitable distribution of resources. (Moge v. Moge 1992 25 (SCC), [1992] 3 S.C.R. 813 @ p. 848.
[6] One of the purposes of spousal support is the relief of economic hardship arising from the breakdown of the marriage.
[7] In making such orders the court does not take into consideration any misconduct of the spouse in relation to the marriage. Conduct is only relevant insofar as it reveals a history of financial interaction which will likely predetermine monetary needs and capacities when the relationship ends. (Pelch 1987 57 (SCC), [1987] 1 S.C.R. 801 @ 829).
“In determining the need for [temporary] support, the court should not attempt to take into account all of the factors that go into the making of a final order. This is better left to the trial judge. … At this preliminary stage, the function of a motions court judge is to consider the current needs of the moving party during the period of the order and then determining whether the moving party requires interim relief and whether the responding party has the means to provide interim relief.” (Mr. Justice Kozak in Byerley v. Byerley (1998) 1998 14889 (ON SC), 41 R.F.L. (4th) 50 at paragraph 11.)
[15] Although, strictly speaking the support objectives outlined in the Divorce Act are applicable, it is not possible on a motion for interim spousal support for the court to conduct the in depth type of inquiry as contemplated in Moge v. Moge (1992) 1992 25 (SCC), 43 RFL (3d) 345 (SCC). See Labelle v. Labelle (1993) 1993 15000 (MB KB), 46 RFL (3d) 341
[16] As this court has stated on many occasions an award of interim spousal support is a temporary or holding order which is intended to provide a reasonable solution until the time of trial, when all of the relevant evidence will be before the court. Interim spousal support orders are based upon the current means and needs of the parties.(Kozak, J.: Demeo v. Demeo (July 21, 2003) )
[8] The parties lived together for 12 years. There are no children. The claimant spouse is now 52 years of age. The responding spouse is 31. The income of the claimant spouse is approximately $28,000 a year. He is not fully employed but claims he takes what work is available. The income of the responding spouse is approximately $82,000 a year.
[9] The claimant spouse submits that in the early days of the relationship he was the major if not the only source of support for the couple. He claims he supported the responding spouse for four years while she was in nursing school. Following this she contributed to the expenses of the relationship. He submits that as a result of the breakdown of the relationship his standard of living has deteriorated.
[10] The responding spouse agrees that during the course of the relationship she substantial contributed to the living expenses of the parties once she became a nurse. She argues that the claimant spouse received the benefit of this. The parties each provided the other with support during co-habitation and each is entitled to look to the other for support following the breakdown of the relationship.
[11] The respondent argues that the claimant is a trained welder and that he is not earning to his full potential whether as a welder or in his present job. She argues that income of $49,450 should be imputed to him. The fact seems to be that the claimant lost his job when a local mill closed and he sought retraining for his present job. His employment, while not full time, seems to have been consistent in recent years.
[12] The applicant submits Spousal Support Guideline calculations based upon his income of $27,756 and her income of about $82,000. That suggests a low of $966, a mid-range of $1,127 and a high of $1,288.
[13] Having considered the Spousal Support Guidelines, his needs and her means I have concluded that she should pay spousal support on a temporary basis of $875.00 per month commencing September 29, 2013.
“Original signed by”
The Hon. Mr. Justice J. deP. Wright
Released: December 20, 2013
COURT FILE NO.: FS-13-258
DATE: 2013-12-20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SAMUEL MAX SELGRAD
Applicant
- and –
VALERIE JUNE DAVIES
Respondent
REASONS ON MOTION
Wright J.
Released: December 20, 2013
/nf