ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROBERT DURDEN
David R.S. Pentz for the Applicant
Applicant
- and -
BRENDA DURDEN
Karen M. King for the Respondent
Respondent
HEARD: May 13, 2014
VOGELSANG J.
ENDORSEMENT
1The applicant is now 56 years of age; the respondent is 52. They began living together 20 years ago and married on December 31, 2005. They separated July 6, 2012, between seven and eight years later.
2Mr. Durden and Ms. Durden had no children; however, Ms. Durden brought a very young boy into their relationship. Hunter Thomas Waechter, born April 6, 2003, was only a few months old when the parties met.
3About four months after the separation, Mr. Durden applied to equalize the parties’ net family property and sought an order for the immediate return of some of his personal belongings, including his truck. Not surprisingly, Ms. Durden responded with claims for child and spousal support and other relief. In this motion, the parties seek interim orders.
CHILD SUPPORT
4Mr. Durden concedes that he treated Hunter as a child of his family throughout the relationship of the parties. Although the police intervened at the time of the parties’ separation, and some provisions of Mr. Durden’s judicial release order later prevented him from having any contact with Hunter, he is firm that he would welcome the boy reinstating some contact with him.
5Mr. Durden enjoys a pension income of $33,653 and an untaxed CPP disability allowance of $8,560. There is general agreement that his appropriate total grossed up income figure for support purposes is $52,295. Application of the Child Support Guidelines, O. Reg 391/97 [as amended] tables would require a monthly payment of $472. The issue is clouded by the fact that David Araujo – Hunter’s biological father – pays $500 monthly for the child’s support, although Ms. Durden seems unable to recall whether those payments are voluntary, or required under a written agreement or court order. In any event, Ms. King represents that Mr. Aranjo pays more than his actual income would dictate. I can assume that there will be more accurate evidence available at trial.
6Section 33(7) of the Family Law Act, R. S. O. 1990, c. F. 3 and s. 5 of the Child Support Guidelines take Mr. Durden out of the presumptive rule set out in s. 3(1) concerning the payment of table amount support. A comprehensive review of the s. 5 apportionment issue conducted by Sherr J. in Hilliard v. Popal, 2010 ONCJ 619, [2010] O.J. No. 5726, 98 R.F.L. (6th) 243 (Ont. C. J.) sets out the factual circumstances which make courts more prone to order a step-parent contribution closer to the Guideline table amount.
7At para. 34, Sherr J. said:
34 The cases indicate that courts are more likely to order a step-parent to pay closer to the guideline table amount in the following circumstances:
(a) If the step-parent and child had a close relationship.
(b) If the step-parent and the child continue to have a close relationship.
(c) If the child enjoyed a high standard of living when the step-parent lived with the child.
(d) If the step-parent has the means to pay the table amount.
(e) If the biological parent has a remote relationship with the child.
(f) If the biological parent does not have a reliable payment history.
(g) If the parties have agreed to pay a higher amount in a separation agreement.
(h) If it is a long-standing relationship between the step-parent and the child.
8Taking these factors into account, for the purposes of this interim award I am of the view that a monthly quantum of $300 to be paid by Mr. Durden is appropriate.
9Counsel should note my specifying that here the provincial Family Law Act is the operative legislation. At the start of the motion, I pointed out that neither party had sought a dissolution of the marriage. When both counsel indicated that a slip may have occurred, I granted leave to the applicant to amend his pleading to claim a divorce and to the respondent, if so advised, to amend her Answer and Claim by respondent.
SPOUSAL SUPPORT
10There is substantial conflict in the affidavit evidence about the level of Ms. Durden’s income. During the marriage she was well remunerated as a factory worker at the Ford Motor Company plant. In mid-April 2011 she accepted a “buy-out” which increased her line 150 income for that taxation year to $260,500. Her position is that she had immediately spent considerable funds to pay off Mr. Durden’s debt, although Mr. Pentz says she can only account for about $50,000 in that reduction of debt. He says Ms. Durden strongly suspects that his wife has “squirrelled” money away to make it look as if she is impecunious, retaining only an untouchable LIRA account of $160,000. Ms. King responds that, for the purposes of spousal support, Ms. Durden’s income is restricted to only a $405 Child Tax Benefit and the $500 child support she receives.
11There are more than enough areas of deep disagreement between the parties about the facts. Ms. Durden swears that her past income cleaning trailers is now denied to her, but she may have given quite contradictory sworn evidence at Mr. Durden’s criminal trial (where he was acquitted of any substantive offence). In Driscoll v. Driscoll, 2009 66373 (ON SC), [2009] O. J. No. 5056 (Sup. Ct.), Lemon J. set out a list of sensible principles, later approved by Price J. in Singh v. Singh, [2013] O.J. No. 4699 (Sup. Ct.):
14 The recent case of Robles v. Kuhn, 2009 BCSC 1163, [2009] B.C.J. No. 1699, provides a helpful list of principles governing interim support motions:
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 Spousal Support Advisory Guidelines 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.
12Mr. Pentz urges me to impute a substantial amount of income to Ms. Duren, emphasizing her failure to produce clear evidence of a concerted job search. He cites Morris v. Morris, (2005) 2005 NSSC 117, 16 R.F.L. (6th) 292 (N.S. Fam. Ct.) and Bracklow v. Bracklow, [1999] S.C.R. 420 (S.C.C.) at para. 40, concerning the post-separation responsibility of a spouse to utilize all available potential and skills to assist in self-support. While he would have me impute a full-time, minimum wage income to Ms. Durden of $22,800, I agree with Ms. King that that figure is excessive and based on the doubtful assumption that such full-time work would be quickly available in a disadvantaged economic geographical area.
13For the purposes of this interim spousal support determination, I will impute income to the respondent of $10,000 annually. On that basis, an approximate mid-range support order is around $450 monthly, taking into account the $300 child support ordered. The support payments in that amount should begin at the initial date of the motion, November 1, 2013, with Mr. Durden receiving credit for payments made pursuant to the interim-interim orders of Henderson J. and Gorman J. dated January 13, 2014 and March 1, 2014, respectively.
ACCOUNTING FOR AND RETURN OF CHATTELS
14While much of the affidavit evidence concerned mutual complaints by the parties about alleged unjustifiable and malicious behaviour involving chattels and vehicles they had owned before separation, I am not disposed to make any order on a temporary basis. The evidence is too conflicting and my jurisdiction to intervene too limited. The parties will have to submit to oral questioning and try to deal with the personal property claims as some kind of post-separation adjustment after equalization.
COLLATERAL ORDERS
15Ms. King and Mr. Pentz consent to temporary orders as set out in Ms. Durden’s Notice of Motion dated February 13, 2014 as numbers 2 and 4. Orders will go accordingly.
COSTS
16Counsel may make submissions with respect to costs in letter form addressed to me in the care of the trial coordinator within 30 days. I want to know particulars of offers to settle, if any, and when they were made. Submissions must be brief.
“Justice Henry Vogelsang”
Justice Henry Vogelsang
Released: June 4, 2014