CITATION: Joanne Blais v. Rejean Blais, 2015 ONSC 1962
COURT FILE NO.: D-19,359-11
DATE: 20150325
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JOANNE DEBBIE BLAIS
Leo P. Arseneau, for the Applicant
Applicant
- and -
REJEAN ALBERT JOSEPH BLAIS
Matti E. Mottonen, for the Respondent
Respondent
HEARD: March 5, 2015
D E C I S I O N A N D E N D O R S E M E N T
WILCOX, J.
INTRODUCTION
[1] The Applicant’s motion to increase temporary spousal support from that provided by the temporary order of DelFrate J. dated September 8, 2011 was heard on March 5, 2015. For the reasons that follow, there shall be an order varying the temporary order to require the Respondent to pay spousal support to the Applicant of $1,503 per month commencing March 1, 2015.
BACKGROUND
[2] The Applicant is 44 years of age; the Respondent is 45. They were married on September 11, 1993 and divorced on October 7, 2013. There were two children of the marriage.
[3] DelFrate J.’s endorsement indicates that:
- the final separation was on April 1, 2011 (although I note that there remains dispute about the date) - the Applicant had custody of the children - the Applicant was earning $34,900 per year with Canada Post - the Respondent’s income was in dispute, but averaged about $82,967 per year in 2007 through 2010. His 2011 year to date income information was not available, so this average figure was used in calculating support.
[4] The temporary order required the Respondent to pay child support of $1,196 per month plus $300 per month spousal support. DelFrate J. noted that the marriage was of 17 years duration, that the Applicant had established need, there was a significant disparity between the parties’ respective incomes, and that the Applicant did not have to establish hardship to attract spousal support. The spousal support ordered was stated to be the mid-point of the guideline amounts.
[5] Gauthier J.’s temporary order of November 7, 2013 terminated the requirement for the Respondent to pay child support as of that date.
[6] The Applicant brought this motion to vary DelFrate J.’s temporary order to increase the spousal support payable by the Respondent subsequent to the termination of the child support.
[7] The evidence indicated that the Applicant had not worked for Canada Post since the end of 2011. Her income had decreased following the temporary order. It was:
- about $11,000 in 2012 - about $9,200 in 2013 - about 12,800 in 2014.
[8] She and Corey Kennelly cohabited from March 2012 and were married on October 19, 2013.
[9] Mr. Kennelly’s income was about $50,000 in 2013 and about $33,000 in 2014. He was off work for July through November 2014, received short-term disability payments, returned to work, and was laid off. He suffered a heart attack on January 6, 2015 but returned to work in mid-January.
[10] Ms. Kennelly had some rental income from an unlawful apartment, but it is about to be lost because the Respondent informed the authorities and the tenant now has to move out.
[11] The Applicant now works part-time in a Metro store earning $1,000 per month. She alleges that she has been unable to obtain more remunerative employment, relies heavily on Mr. Kennelly’s income, and requires the Respondent’s financial assistance. She has no education beyond grade 12, has sought more remunerative employment, and has asked for additional hours at work, working as many as she can.
[12] She notes that she worked part-time while she and the Respondent cohabited, and that she took care of the children and household while he worked, often out of town, such that he was only home on weekends. For that reason, she was unable to get full-time employment.
[13] The Respondent’s income was:
-$95,900 in 2011 - about $83,800 in 2012, - $85,600 in 2013, - about $74,300 in 2014.
His counsel stated that his income would be $80,000 in 2015.
LAW
[14] S. 15.3 of the Divorce Act states:
15.3(1) Where a court is considering an application for a child support order and an application for a spousal support order, the court shall give priority to child support in determining the applications. Reasons (2) Where, as a result of giving priority to child support, the court is unable to make a spousal support order or the court makes a spousal support order in an amount that is less than it otherwise would have been, the court shall record its reasons for having done so. Consequences of reduction or termination of child support order (3) Where, as a result of giving priority to child support, a spousal support order was not made, or the amount of a spousal support order is less than it otherwise would have been, any subsequent reduction or termination of that child support constitutes a change of circumstances for the purposes of applying for a spousal support order, or a variation order in respect of the spousal support order, as the case may be.
[15] The endorsement and temporary order do not, in fact, address (2). However, DelFrate J. indicated that he followed the guidelines, and I will assume that he was provided with DivorceMate guideline calculations by counsel, as they have done for the present motion.
[16] A DivorceMate calculation using the income used by DelFrate J. but without children produces a range of spousal support of from $1,021 to $1,362 per month. The calculation produced when DelFrate J. made his order had a high end of $719 per month and a mid-point of $300 per month for spousal support. Clearly, but for child support, the guidelines would have provided a higher range of spousal support.
[17] It must be kept in mind that we are not dealing here with spousal support on a final basis.
[18] The purpose of interim support is to see that the recipient has the means to live a reasonable lifestyle taking into account the means and needs of both the recipient and the payor until the matter is finally decided (Charbonneau v. Charbonneau, 2004 CanLII 47773 (ON SC), [2004] O.J. No. 5059 para. 15 and McGee v. McGee, 1999 CanLII 14999 (ON SC), [1999] O.J. No. 3087 para. 13).
[19] For there to be an interim spousal support order the court must find entitlement to spousal support. Although an in-depth analysis of entitlement is not to be conducted at this stage, the claimant must, however, establish a prima facie case for spousal support.
[20] The Respondent argued at length that there was no material change in circumstances, no entitlement and no need for continued spousal support because of the economic benefits to the Applicant of her new relationship with Mr. Kennelly, in addition to which, he said, a higher income should be imputed to her.
[21] I reject that argument. The Applicant had a lengthy and largely traditional relationship with the Respondent in which she was economically dependent on him and would have enjoyed the standard of living provided by his income. To some extent, her need is a product of that standard of living. I do not find on an interim basis that she now has no need just because she is in a new relationship of much shorter duration. Furthermore, her income has fallen and she and her new spouse together do not earn what the Respondent does. The case law indicates that subsequent cohabitation does not disentitle a spouse to spousal support, but is a factor in determining quantum.
[22] Furthermore, in the circumstances, there is at least an argument to be made for spousal support on a compensatory basis.
[23] Therefore, I find that there is a prima facie case for continued spousal support.
[24] The question then is what is the appropriate quantum of spousal support. In Gray v. Gray, 2014 ONCA 659, Lauwers J.A. stated at paragraph 43:
This court commented in Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241, at para. 96 that the SSAG only apply to initial support applications, and not to variation proceedings. Fisher was not a variation proceeding that entailed consideration of s. 15.3 of the Divorce Act. At the time of Fisher the final publication of the SSAG had not been released. The July 2008 SSAG publication contemplates that the guidelines have a role to play on variation. The SSAG expressly comment that it should be possible for either spouse to apply to cross over from the “with child support” formula to the “without child support” formula, to affect the amount of spousal support ordered.
[25] The Applicant’s counsel submitted that he was seeking the mid-range of $1,503 per month calculated at the parties’ respective incomes of $80,000 and $15,600. I agree that that is an appropriate amount of spousal support on an interim basis at this time.
[26] Costs of this motion are reserved to the trial judge.
Justice James A.S. Wilcox
Released: March 25, 2015