CITATION: Kahsai v. Hagos, 2015 ONSC 3900
COURT FILE NO.: FC-14-273
DATE: 2015/06/23
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: LEMLEM KAHSAI, Applicant
AND
KIDANE HAGOS, Respondent
BEFORE: Shelston J.
COUNSEL: J. Alison Campbell, counsel for the Applicant
Leonard Levencrown, counsel for the Respondent
HEARD: May 11, 2015 (at Ottawa)
ENDORSEMENT
[1] This is a motion brought by the applicant seeking the following relief:
(a) An order that the respondent pay the applicant spousal support on an interim without prejudice basis in the amount of $2,166 per month, payable on or before the first day of each and every month, until such time as the same is awarded by way of a written agreement between the parties or an order of this Court;
(b) The respondent shall provide to the applicant the disclosure identified in Schedule “A” of the Notice of Motion within 30 days of the date of this order;
(c) At a date and time set by the Court, the respondent shall abstain from attending at the home, located at 272 Gracewood Crescent, Ottawa, for a period of two hours to allow the applicant to obtain the belongings listed in the applicant’s affidavit;
(d) An order that the applicant shall be entitled to amend her Application, dated February 4, 2014, to include a claim for spousal support under the Divorce Act as well as under the Family Law Act;
(e) An order that the respondent shall pay the applicant’s costs on a substantial indemnity basis; and
(f) Such further and other relief as to this Court may deem just.
Facts
[2] The parties married on either January 10, 1980, as alleged by the applicant, or May 15, 1978, as alleged by the respondent. The parties are in agreement as to the following facts:
(1) they separated in 1985;
(2) a divorce was obtained on July 18, 1987;
(3) there are three children of their relationship, namely:
(i) Sham Kidane, born September 20, 1980;
(ii) Cessen Kidane, born October 19, 1993; and
(iii) Saare Kidane, born March 20, 1995.
(4) the parties resumed cohabitation in 1990; and
(5) the parties finally separated on September 22, 2013.
[3] The applicant’s evidence is that the parties reconciled in 1990 and continued to live together until their final separation on September 22, 2013. She states that the parties had two children after 1990 and that in the parties’ respective income tax returns for the years 2011 and 2012 indicate that they were living in a common-law relationship.
[4] Further the applicant states that the respondent had another child, Benawee Kidane, during the parties’ separation and that the applicant cared for Benawee during the respondent’s access. The applicant attests to the fact that she was the primary caregiver for the children during the relationship. In addition, she worked full-time from 1988 until 1993, part-time from 1997 to 1999, and full-time from 2000 to the date of separation (i.e. once all the children were in school.) As a result of her assuming responsibility for the children in the household, the respondent was able to attend school for numerous years during the course of the relationship, obtaining two college diplomas as well as two university degrees. In addition, the respondent traveled for business; he has significant holdings outside of Canada, including a property in Atlanta which is currently listed for sale at $2.6 million.
[5] The respondent’s evidence is that the parties resumed living together for the sake of the children in September 1990, after the applicant went bankrupt. He denies that the parties ever reconciled and submits that they lived separate and apart under the same roof for 23 years. In support of his position, the respondent asserts that he was the only person responsible for the bills and expenses for the children, and that the applicant was free to use her income as she wished. The respondent continues to financially assist his two children who remain financially dependent, in that Cessen is attending her fourth year at university while Saare is attending his second year at Ryerson University.
History of the Litigation
[6] The applicant commenced these proceedings by application issued on February 4, 2014. She claimed spousal support, child support, a restraining order, an obligation on the respondent to maintain life insurance, an order for the division of the value of the family residence at 272 Gracewood Crescent, pursuant to the doctrine of unjust enrichment, as well as other relief including costs.
[7] The respondent filed his answer, dated March 21, 2014, seeking a dismissal of all claims raised by the applicant.
[8] The parties attended a case conference before Master Roger on March 31, 2014, and dealt with the issues of disclosure, questioning, retrieval of personal items, and the possession of a 2008 BMW.
[9] The applicant brought the within motion returnable on October 20th, 2014. The motion was adjourned. A new notice of motion was served for March 31, 2015. On March 31st, 2015, the respondent raised an issue of jurisdiction and consequently the matter was adjourned to May 11, 2015, to allow the parties to file factums. The applicant then amended her notice of motion to add the relief seeking permission to amend her application to add a claim of spousal support under the Divorce Act.
Motion May 11, 2015
[10] At the outset of the present motion, counsel for the applicant advised the court that the parties had resolved the disclosure order, the contents issue, and the scheduling of the questioning of the parties. The remaining issues before the court are as follows:
(1) Whether the applicant should be granted leave to amend her application to claim spousal support under the Divorce Act as well as the Family Law Act;
(2) Whether the applicant is entitled to temporary spousal support, commencing April 1, 2015, reserving her right to claim spousal support retroactive to the commencement of her application at trial; and
(3) Costs.
Amendment of the Pleading
[11] The first issue is the request of the applicant to amend her application to include a claim for support under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) In this case, the issue of support has been before the court since February, 2014, when the applicant sought support under the Family Law Act. Rule 11(3) of the Family Law Rules, O. Reg. 114/99, provides that the court shall permit a party to amend an application, answer or reply, unless the amendment would disadvantage another party in a way that could not be remedied with costs or an adjournment. The amendment proposed by the applicant does not prejudice the respondent; he has been aware since February, 2014, that the applicant was claiming spousal support and he has responded by filing an answer. Consequently, the request for an amendment is allowed.
[12] The applicant shall be permitted to amend her application to claim spousal support under the Divorce Act and she shall serve and file her amended application by July 10, 2015.The respondent shall serve and file an amended answer by July 31, 2015.
Jurisdiction of the Court to Award Spousal Support
[13] The respondent’s position is that the applicant’s claim for bringing an application under the Family Law Act is statute barred. He submits that because the parties were divorced on July 18, 1987, the parties are no longer “spouses” under the Divorce Act, and that the Family Law Act has no application. Further he argues that the application is not in the nature of a divorce variation application and this Court has no jurisdiction.
[14] The respondent argues that the applicant commenced her application for spousal support on December 6, 2013 (in fact, it was February 4, 2014), 26 years after the divorce. His legal argument can be summarized as follows:
(1) A “former spouse” cannot claim spousal support after a divorce order pursuant to the Family Law Act; and
(2) The doctrine of latches applies to this support application.
[15] In support of his argument the respondent relies on two cases. The first case is Okmyansky v. Okmyansky, 2007 ONCA 427, 86 O.R. (3d) 587, in which the Ontario Court of Appeal held that the Family Law Act does not allow a former spouse to claim support after a divorce has been granted and that an Ontario court lacked the jurisdiction to vary the corollary relief granted in a foreign jurisdiction, in this case, being Russia.
[16] The second case is Rothgiesser v Rothgiesser (2000), 46 O.R. (3d) 577, 2000 CanLII 1153, where the Ontario Court of Appeal stated that a Canadian court has no jurisdiction to vary a support order of a court of a foreign jurisdiction. In that case, the foreign jurisdiction was South Africa. Further, the court held that as the parties were not spouses under the Family Law Act, they could not apply under that statute.
[17] However, in both Okmyansky and Rothgiesser there was no reconciliation of the parties after the divorce. In this case there was cohabitation for 23 years and two children born after the divorce order. These cases relied on are distinguishable on those facts.
Is the Applicant a “Spouse” under the Family Law Act?
[18] Does the applicant meet the test of being “a spouse” under the Family Law Act? In my opinion she does. A “spouse” is defined at section 29 of the Family Law Act as:
“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.
[19] In the case at bar, the applicant meets the Family Law Act definition of “spouse” in that the parties cohabited for a period of more than three years, being 23 years from 1990 to 2013, and they had two children born during their relationship. In my view, the applicant may seek spousal support under the Family Law Act.
[20] As the parties separated on September 22, 2013, and the applicant commenced her claim on February 4, 2014, I reject that her claim for support is statute barred.
Is the Applicant a “Former Spouse” and Can She Claim Support Under the Divorce Act?
[21] In 1985, at the date of the first separation, the applicant had the right to seek support under the Divorce Act based on the roles assumed during the five years of cohabitation, including caring for a young child. As no one has produced the divorce order upon which the divorce certificate was issued, and neither party has provided affidavit evidence as to what, if any, relief was included in the divorce order, I am proceeding on the basis that there was no order for spousal support.
[22] Despite the fact that the applicant did not seek support in 1985 her claim for support, in my opinion, continued to exist. Even if the court had dismissed the applicant’s entitlement to spousal support at that time, if there was a material change in circumstances in the future, that dismissal would not preclude her from claiming spousal support at a later date. The Ontario Court of Appeal in Tierney-Hynes v. Hynes (2005), 2005 CanLII 35770 (ON CA), 75 O.R. (3d) 737, 256 D.L.R. (4th) 193, held as follows at paras. 54, 57 and 76:
Section 15.3, a brand new provision of the 1997 Act, clearly evidences Parliament’s intention to allow a variation of an earlier dismissal of spousal support. This provision specifically contemplates a situation where a court is ‘unable to make a spousal support order’ and refers to a situation where a spousal support order is ‘not made.’ There can be no material distinction between not making an order, dismissing a claim, deleting an earlier order, or terminating support.
Importantly, s. 15.3 was enacted at the same time that s. 17(7) was amended to delete the reference to the variation of an order ‘that provides for the support of a former spouse’ and to substitute reference to the variation of an order ‘varying a spousal support order,’ thus contemplating variation of orders other than ones that provide for positive support.
For these reasons, I conclude that a court now has jurisdiction to vary a dismissal of a support order.
[23] In Traversy v. Glover (2006), 2006 CanLII 24130 (ON SC), 30 R.F.L. (6th) 372, [2006] W.D.F.L. 3741, (SCJ) Justice V.J. Mackinnon stated, at para. 108, as follows:
In Tierney-Hynes v. Tierney-Hynes, 2005 CanLII 35770 (ON CA), [2005] O.J. No. 2661 (Ont. C.A.), the Ontario Court of Appeal revisited the issue of the court’s jurisdiction under the Divorce Act to vary an order that dismissed or terminated spousal support. The Court concluded that jurisdiction does exist to vary an earlier dismissal of spousal support.
[24] At para. 109 Justice Mackinnon went on to indicate that:
From this, I conclude that a nominal award is not required in order to hold open Ms. Traversy’s potential future entitlement. The lump sum award that I have made is not ‘full and final’ and no releases are exchanged between the parties. Thus, in my view, my dismissal of her current claim for ongoing periodic support does not prevent her from reapplying should future circumstances so warrant.
[25] Consequently, the applicant can also apply for support as a “former spouse” under the Divorce Act.
Spousal Support
[26] This is a motion for interim spousal support. At this stage of the proceedings, the following principles apply:
(1) Interim support is to provide income for dependent spouses from the time the proceedings are instituted until trial.
(2) The court need not conduct a complete inquiry into all aspects and details to determine to what extent either party suffered economic advantage or disadvantage as a result of the relationship. That inquiry is to be left to the trial judge.
(3) Interim support is a holding order to maintain the parties’ accustomed lifestyle, if possible, pending final disposition, so long as the claimant is able to present a triable case for economic disadvantage.
(4) Interim support is to be based on the parties’ means and needs, assuming that a triable case exists. The merits of the case must await a final hearing.
(Kowalski v. Grant, 2007 MBQB 235, 43 R.F.L. (6th) 344 (Man QB))
[27] If a claimant establishes a prima facie case for entitlement to spousal support then generally, a support order will be made, based on the parties’ respective needs and means (see: Plaxton v. Plaxton, (2002), 27 R.F.L. (5th) 135, 2002 CanLII 49545 (ONSC)).
[28] I find that the applicant has presented a prima facie case for spousal support. I make such a finding based on the following facts:
(a) The parties resided together for 28 years including 23 continuous years from 1990 to 2013;
(b) There are three children of this relationship;
(c) For the years 2011 and 2012, the respondent indicated in his federal income tax return that his marital status was “living common law” with his common-law partner being the applicant. In his 2011 tax summary, he listed the applicant in the box entitled “Spousal information.” In his 2012 T1 General tax return, he listed the applicant in the box entitled “Information about your spouse or common law partner”;
(d) For the years 2010, 2011, and 2012, the applicant indicated in her federal income tax returns that she was “living common-law” with her common-law partner being the respondent; and
(e) The documents listed in subparagraphs (c) and (d), herein, support the applicant’s position that the parties were living together as common-law spouses. It appears that the respondent is advancing one position to the Canada Revenue Agency and a completely different position in this family law proceeding. The documents speak for themselves and corroborate the applicant’s position.
Quantum of Spousal Support
[29] I have taken the following factors into consideration:
(a) The length of cohabitation, being 28 years.
(b) The applicant’s income, budget and monthly deficit. In 2014, the applicant earned $59,472.90. Her current income is $57,080.16 and she has a monthly shortfall of $1,093 according to her financial statement dated March 16, 2015. Her only debt is her consumer proposal debt, originally $21,000 and now down to $15,000, repayable at $300 per month. She lives alone in an apartment in Toronto.
(c) The respondent has filed two financial statements in these proceedings. The first financial statement was signed on March 24, 2014 and indicates that his monthly income is approximately $20,910, consisting of employment income of $1,800 per month, interest and investment income of $3,110 per month, and rental income of $16,000 per month. In addition, he receives other benefits, such as a car, gas for the car, and insurance for the car, which totals a yearly value of $19,644. His budget indicates that he incurs housing expenses of $3,100 per month, car payments of $937 per month, children’s expenses of $2,300 per month, as well as expenses for his rental properties being $12,660 per month. This leaves him with a deficit of $8,445 a month. He is living alone at 272 Gracewood Crescent, Ottawa, Ontario.
(d) Further the respondent is the owner of four rental properties worth, all together, approximately $2.6 million at the time of separation and as of March, 2015. However, he confirms that he has a mortgage on the Atlanta property of $2,477,314.39. The applicant has provided evidence that the Atlanta property was up for sale for $2,650,000 US dollars in 2013.
(e) The respondent filed a second financial statement, dated March 18, 2015, which differs from the first financial statement in many respects - without explanation - including the following:
(i) The investment income has been deleted;
(ii) The rental income has gone from $16,000 a month to $13,000 a month; and
(iii) The monthly expenses have gone from $30,992 to $25,768.33 without explanation.
(f) The respondent’s income tax returns or notice of assessments indicate that he has earned the following amounts:
(i) 2010, the sum of $61,042;
(ii) 2011, the sum of $152,125;
(iii) 2012, the sum of $57,900; and
(iv) 2013, the sum of $55,500 (in a year when the school expenses exceeded $62,000)
(g) As well, in the disclosure documents provided to the Court the respondent is noted as the sole shareholder of Shamar Maintenance Inc. According to the statement of income and retained earnings for that company for the period ending January 31, 2014, the following yearly expenses and payments were paid:
(i) Management fee $61,300
(ii) Automobile expenses $ 7,534
(iii) Dividends $30,000
Total $98,834
[30] There is no explanation provided by the respondent with respect to these expenses and payments. The position of the applicant is that the respondent has multiple sources of income, including income from his business, his real estate holdings and business interest in Ethiopia. The applicant disputes that the respondent’s financial statement provides an accurate picture. Based on the limited disclosure, I find that the respondent’s income for temporary support purposes is $177,600 per year based on his March 18, 2015, financial statement.
[31] The applicant has provided me with Divorcemate calculations of support using the Spousal Support Advisory Guidelines (“SSAG”) using various scenarios. However, there is no calculation provided using an income of $177,000 and the school expenses paid for by the respondent. In her submissions, counsel for the applicant indicated that the respondent can afford to pay support and that his income should be set at $177,000, based on the disclosure to date.
[32] The applicant has sought the sum of $2,166 per month for spousal support based on a monthly deficit of $1,529.90 per month. The revised deficit is now $1,093 per month, based on her March 16, 2015 financial statement. I have considered the SSAG’s but no calculation has been provided based on the respondent’s income of $177,000 and factoring in the school fees for the two children in university.
[33] Based on the above, I order that, commencing April 1, 2015, and on the first of every month thereafter, the respondent shall pay to the applicant interim without prejudice spousal support in the amount of $1,500 per month.
Costs
[34] If the parties are unable to resolve the cost issue, then, the applicant shall provide her written submissions by July 17, 2015. The respondent shall provide his reply submissions by July 31, 2015 and the applicant shall provide any reply submissions by August 7, 2015. The parties are to provide a cost submission no longer than three pages attaching offers to settle and their cost outlines.
Shelston J.
Released: June 23, 2015
CITATION: Kahsai v. Hagos, 2015 ONSC 3900
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: LEMLEM KAHSAI, Applicant
AND
KIDANE HAGOS, Respondent
BEFORE: Shelston J.
COUNSEL: J. Allison Campbell, counsel for the Applicant
Leonard Levencrown, counsel for the Respondent
ENDORSEMENT
Shelston J.
Released: June 23, 2015