ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-0280-13
DATE: 2014-07-04
B E T W E E N:
RACHEL DORCAS FIDDLER
Timothy Matthews, for the Applicant
Applicant
- and -
JOSIAS JOHNATHON FIDDLER JR.
Lauren Conti, for the Respondent
Respondent
HEARD: June 12 , 2014,
at Thunder Bay, Ontario
Mr. Justice D.C. Shaw
Decision on Motion
[1] The applicant, Rachel Fiddler, brings a motion for interim child support and interim spousal support. The respondent, Josias Fiddler Jr., brings a motion for interim access.
[2] Prior to hearing the motions the parties agreed to resolve the issue of interim child support and interim access, leaving only the issue of interim spousal support to be determined.
BACKGROUND
[3] The parties were married on December 4, 2004. They separated on December 31, 2011. Ms. Fiddler deposes that they cohabited for approximately six years before marriage. Mr. Fiddler agrees that they began their relationship in 1998, but disputes that they lived together for six years prior to marriage.
[4] There is one child born of the marriage, namely, Sariane Fiddler, born October 28, 2000. Sariane resides with Ms. Fiddler in the City of Thunder Bay.
[5] Ms. Fiddler has been employed for the past four years as an administrative assistant with Oshiki Pimache Owin Education and Training Institute. It is agreed that her income is $28,091.00, received on a non-taxable basis. For purposes of support, the grossed-up amount of her income is $29,111.00.
[6] Mr. Fiddler lives in the First Nations community of Sandy Lake. It is agreed that his income is $77,959.00, also received on a non-taxable basis. For purposes of support, the grossed-up amount of his income is $109,383.00.
[7] Mr. Fiddler has been in a relationship for the past two years with Jennifer Kakepetum. He and Ms. Kakepetum have two children, born in July 2013 and May 2014, respectively. Ms. Kakepetum also has four children from a previous relationship, ages 19, 16, 14 and 5. These 6 children reside with Mr. Fiddler and Ms. Kakepetum in Sandy Lake. The 19 year old son of Ms. Kakepetum is not employed and receives social assistance. Mr. Fiddler also has a 17 year old son with another woman. This child attends school in Sioux Lookout and resides with Mr. Fiddler and Ms. Kakepetum during the summer and other holidays.
[8] Ms. Kakepetum does not receive any child support for the four children born of her previous relationship. She has started court proceedings for child support, but she deposes that she does not know the income of the children’s father and is not sure whether support will be paid.
[9] The parties consent to an order that Mr. Fiddler pay Guideline child support of $953 for Sariane, commencing May 1, 2014, based on his grossed-up income of $109,383. The parties also agree that they shall share S.7 Guidelines expenses for Sariane, based on their respective grossed-up incomes of $109,383.00 and $29,111.00, provided such expenses are reasonable and are agreed upon in writing in advance.
[10] The parties have also agreed that Mr. Fiddler shall have the following access to Sariane.
a. Weekly communication by telephone, Skype, Facetime and other means of electronic communication;
b. four consecutive weeks in the summer;
c. one week at Christmas; and
d. March Break
They agree that Mr. Fiddler shall give 60 days written notice of the dates during which he wishes to exercise summer and Christmas access, except for the summer of 2014 for which he shall give written notice by June 27, 2014.
[11] In March 2012, the parties orally agreed that Mr. Fiddler would pay Ms. Fiddler the sum of $1435.00 per month inclusive of child and spousal support and the costs of Sariane’s orthodontic treatments. Ms. Fiddler contends that Mr. Fiddler made only irregular payments after this oral agreement. Mr. Fiddler deposes that he regularly paid for a significant amount of expenses for Sariane’s clothing, activities and other necessities she might need.
[12] In December 2013, Mr. Fiddler began paying regular child support of $925.00 per month.
SUBMISSIONS
(a) Ms. Fiddler
[13] Ms. Fiddler submits that she was and continues to be Sariane’s primary caregiver. She submits that she compromised her career to facilitate Mr. Fiddler’s career.
[14] Ms. Fiddler submits that interim spousal support should be awarded within the range suggested by the Spousal Support Advisory Guidelines (SSAG). Her SSAG calculations show a range of $669.00 at the low end, a mid-point of $915.00 and $1,161.00 at the high end of the range.
[15] Ms. Fiddler acknowledges that Mr. Fiddler has financial obligations for his two children with Ms. Kakepetum. For this reason she does not request an award at the high end of the SSAG range. Ms. Fiddler submits that the four children from Ms. Kakepetum’s previous relationship should not be a factor in determining spousal support because Mr. Fiddler voluntarily took on these children knowing his obligations towards his wife and child. Ms. Fiddler requests spousal support between the low range of the SSAG, of $669.00, and the mid-range of $915.00 per month.
(b) Mr. Fiddler
[16] Mr. Fiddler submits that in his particular circumstances, the range suggested by the SSAG is inappropriate and that he should pay no spousal support or, in the alternative, the spousal support should be below the low range suggested by the SSAG.
[17] Mr. Fiddler questions Ms. Fiddler’s need for support. He points to a delay from the date of separation on December 31, 2011 to April 2014 when she brought the within motion as evidence that she does not need spousal support.
[18] Mr. Fiddler also refers to Ms. Fiddler’s Financial Statement which shows her income, inclusive of child tax benefits, at $32,094.00 and her listed expenses at $38,808.00. Mr. Fiddler submits that when child support of $953.00 per month, or $11,436.00 per year, is added to Ms. Fiddler’s income, she will be in a surplus position.
[19] Mr. Fiddler refers to his own Financial Statement, which shows expenses of $85,518.00 per year, which do not include child support for Sariane or expenses for his child born in May of this year.
[20] Mr. Fiddler submits that he has no ability to pay spousal support because of his responsibilities for Ms. Kakepetum and the six children in his home, in addition to his expenses for his 17 year old son during the summer.
[21] Mr. Fiddler submits that although Ms. Kakepetum has applied for support for her three youngest children, and has also applied for employment insurance, there is uncertainty that she will receive any monies.
[22] Mr. Fiddler points to the fact that Sandy Lake is a remote fly-in community which means living expenses are higher than in Thunder Bay and that it is expensive for him to exercise access to Sariane. He submits that the SSAG do not take into consideration the expenses of a remote community.
[23] Mr. Fiddler notes that when the six children are taken in to account, the SSAG calculations show that even at the low end of the suggested spousal support range Ms. Fiddler would have a much higher “Household Income Rate.”
DISCUSSION
[24] In Fisher v. Fisher, 2008 ONCA II, the Court of Appeal considered the responsibility of the payor husband for his “new” or second family. At paras 39-40 Lang J.A., writing for the court, stated:
“39 While courts generally recognize a “first-family-first” principle (which provides that a payor’s obligations to the first family take priority over any subsequent obligations), inevitably new obligations to a second family may decrease a payer’s ability to pay support for a first family.
40 In each case, obligations toward second families must be considered in context. For example, where spouses with a child separate, and one remains and produces another child, the obligations to the second child will affect support for the first family because the payor has an equal obligation to both children…”
[25] Lang J.A. then went on, at para. 41, to distinguish that situation from the case before her where the payor husband voluntarily assumed significant responsibility for his second family when he knew, or should have known of his pre-existing obligation to his first family. Lang, J.A. found that the payor husband’s new obligations were not sufficiently compelling to reduce his spousal support obligations to his first wife, noting there was no evidence that his obligations to his first family would impoverish his second family, driving them onto social assistance or otherwise into poverty.
[26] Ms. Fiddler is entitled to interim spousal support. Leaving aside the issue of pre-marriage cohabitation, this was a seven year marriage in which Ms. Fiddler bore primary responsibility for the care of the parties’ child who was born to them four years before the marriage. Although Ms. Fiddler provides no details, her allegations that she compromised her career to care for Sariane and to facilitate Mr. Fiddler’s career were not challenged in Mr. Fiddler’s responding affidavits.
[27] I do not attach any significance to the fact that Ms. Fiddler did not bring her motion until more than two years after the date of separation. The parties entered into an oral agreement in March 2012, three months after separation, pursuant to which Mr. Fiddler was to pay a global amount of $1435.00 for child and spousal support and for orthodontic expenses for Sariane. Ms. Fiddler therefore made it known soon after the separation that she was seeking spousal support. In September 2013, after the parties had not been able to resolve their issues, Ms. Fiddler filed her application, which included a claim for spousal support.
[28] Ms. Fiddler’s Financial Statement does show expenses of $38,808.00, which would be covered by her income and the $953.00 of monthly child support. However, as noted in Fisher, at para 51, self-sufficiency is a relative concept and is not achieved simply because a former spouse can meet basic expenses on a particular amount of income; rather, self-sufficiency relates to the ability to support a reasonable standard of living, assessed in relation to the standard enjoyed during cohabitation and what could reasonably be expected after separation. Mr. Fiddler’s grossed-up income is almost four times the grossed-up income of Ms. Fiddler.
[29] In my view, Mr. Fiddler’s decision to reside with Ms. Kakepetum and to assume financial responsibility for her and her four children, should not affect either Ms. Fiddler’s entitlement to interim spousal support or the quantum of support that would otherwise be payable. This was a choice that Mr. Fiddler made shortly after separation, knowing of his existing responsibilities to Mr. Fiddler. He began residing with Ms. Kakepetum soon after his oral agreement of March 12, 2012.
[30] Pursuant to the reasons in Fisher, in assessing Mr. Fiddler’s ability to pay, the financial obligations for support that he has to the two children whom he has fathered with Ms. Kakepetum are to be distinguished from the expenses relating to Ms. Kakepetum and her four children from her previous relationship.
[31] I also take into account, as a relevant consideration, that certain costs of living in the remote community of Sandy Lake will be higher than costs in, for example, Thunder Bay. Having said that, I note that Mr. Fiddler’s Financial Statement shows no costs for housing, other than $200.00 per month for repairs, as compared to Ms. Fiddler’s housing costs of $1,030.00 per month in Thunder Bay.
[32] There is no evidence from Mr. Fiddler’s affidavits or from his Financial Statement that interim spousal support for Ms. Fiddler will drive Mr. Fiddler’s second family onto social assistance or otherwise into poverty.
[33] The SSAG range for the parties’ respective non-taxable incomes is $669.00 - $915.00 - $1161.00.
[34] Taking into account Mr. Fiddler’s obligations to support the two children whom he has fathered with Ms. Kakepetum and taking into account the costs of living in Sandy Lake and costs of exercising access to Sariane between Sandy Lake and Thunder Bay, I have concluded that interim spousal support at the low end of the range, in the amount of $670.00 per month, would be reasonable in all the circumstances.
CONCLUSION
[35] The following temporary order shall go:
Commencing May 1, 2014, Mr. Fiddler shall pay to Ms. Fiddler for the child, Sariane Fiddler, born October 28, 2000, the sum of $953.00 per month based on Mr. Fiddler’s non-taxable income of $77,959.00, grossed-up to $109,383.00, and the Child Support Guidelines.
Mr. Fiddler shall have the following access to Sariane;
a. weekly communication by telephone, Skype, Facetime and other means of electronic communication;
b. four consecutive weeks during school summer holidays;
c. one week during school Christmas holidays;
d. the school March break.
Mr. Fiddler shall give 60 days written notice of the dates he wishes to exercise summer and Christmas access, except for the summer of 2014 for which he shall give written notice by June 27, 2014.
Commencing July 1, 2014, Mr. Fiddler shall pay to Ms. Fiddler spousal support of $670.00 per month.
This order is without prejudice to the position of either party with respect to the issues of retroactive child and spousal support.
A Support Deduction Order shall issue.
If the parties are unable to agree upon costs, they shall contact the Trial Coordinator within 30 days to set a date to speak to the issue failing which costs shall be deemed to have been settled.
“Original Signed By”
The Hon. Mr. Justice D.C. Shaw
Released: July 4, 2014
COURT FILE NO.: FS-0280-13
DATE: 2014-07-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
RACHEL DORCAS FIDDLER
Applicant
- and –
JOSIAS JOHNATHON FIDDLER
Respondents
DECISION ON MOTION
Shaw, J
Released: July 4, 2014
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