SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 3199/14

DATE: 20150828

RE: Trisha Lee Loubert, Applicant

AND:

Marc Andrew Loubert, Respondent

BEFORE: Varpio, J.

COUNSEL:
T. Ross, Counsel, for the Applicant

L. Marshall, Counsel, for the Respondent

HEARD: August 27, 2015

ENDORSEMENT

[1] This is a motion for interim spousal support brought by the wife. She seeks support in the quantum of $1500/month. The husband opposes said motion as he claims that:

a. The wife is not entitled to spousal support; and

b. Even if she is, he cannot afford to pay same.

[2] For the reasons that follow, I hereby award the wife $1,060 per month in spousal support commencing September 1, 2015.

FACTS

[3] The parties began co-habitating in 1990 and were married in 1995. They separated in 2013 at which time the husband moved to Alberta. They have no children together.

[4] Prior to moving, the husband claims that he earned approximately $60,000 per annum. There are evidential discrepancies between the parties as to:

a. The husband’s 2012 income, although no evidence was before the Court suggesting that $60,000 was abnormally low or high; and

b. The amount of the wife’s typical annual income during the course of the marriage.

[5] Despite the foregoing, it is clear that the husband began earning substantially more than $60,000 after he moved to Alberta. The husband also claims that he assumed most of the parties’ marital debt except for the mortgage on the matrimonial home. Evidence in the file suggests that the matrimonial home has a mortgage on it for approximately $130,000 and has also been appraised at approximately $130,000. Further, the husband has petitioned himself into bankruptcy in Alberta and is currently paying off debt pursuant to a Consumer Proposal as allowed by that province’s Bankruptcy and Insolvency Act. Pursuant to that proposal, the husband is paying $750/month for another 2 years (approximately) to pay off his existing debt. These payments exclude payments for his trailer, which is worth $30,000 as per his Proposal. Interestingly, in his Form 13.1 Financial Disclosure form, the husband claims that he pays in excess of $2600/month in debt servicing, the specifics of which were not provided to the Court.

[6] The husband also indicates that he spends $500/month on alcohol and cigarettes.

[7] The wife claims that she currently works three jobs and earns approximately $26,000 per annum and has a monthly shortfall of approximately $1800. Her Form 13.1 indicates that she earns $28,400 per annum.

THE LAW

[8] Spousal support is governed by s.15.2 of the Divorce Act:

15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

Interim order

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1).

Terms and conditions

(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

Factors

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

(c) any order, agreement or arrangement relating to support of either spouse.

Objectives of spousal support order

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[9] The law recognizes two bases for awarding spousal support: compensatory and non-compensatory: Bracklow v. Bracklow, 1999 715 (SCC), [1999] S.C.J. No. 14; Moge v. Moge, 1992 25 (SCC), [1992] S.C.J. 107. Without overly simplifying the theory, compensatory support seeks to “balance the marital playing field” by recognizing sacrifices of one spouse who thereby enables the other spouse to earn more money. There is no evidence before the Court that there is any basis for awarding compensatory spousal support in this instance.

[10] Non-compensatory support recognizes that, the longer a relationship lasts, the more intertwined peoples’ lives become such that the dissolution of a marriage by definition hurts a low-earning spouse. Balanced against this reality, however, is the need to encourage self-sufficiency.

[11] When determining quantum, it is entirely appropriate for a Court to look at the effect of marital debt apportionment with respect to a party’s ability to pay: Greenglass v. Greenglass 2010 ONCA 675, [2010] O.J. No. 4409 (Ont. C.A.).

[12] On an interim motion, it is difficult for the Court to delve deeply into these phenomena. The wife’s counsel provided the Court with a copy of MacKenzie v. Flynn, 2010 ONCJ 184 where Sherr J. provides a useful overview of relevant caselaw at paras. 20 to 23:

In Kowalski v. Grant, 2007 MBQB 235, 219 Man. R. (2d) 260, 43 R.F.L. (6th) 344, [2007] M.J. No. 386, 2007 Cars­well­Man 422 (Man. Q.B., Fam. Div), the court set out the following principles in dealing with temporary spousal support motions:

1. Interim support is to provide income for dependant 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 what extent either party suffered economic advantage or disadvantage as a result of the relationship. That is to be left to the trial judge.

3. Interim support is a holding order to maintain the accustomed lifestyle if possible pending final disposition as 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 in its entirety must await a final hearing.

In Robles v. Kuhn, 2009 BCSC 1163, [2010] B.C.W.L.D. 1935, [2010] W.D.F.L. 1330, [2009] B.C.J. No. 1699, 2009 Carswell BC 2239 (B.C.S.C.), the court added the following considerations:

1. On interim support motions, needs and ability take on greater significance.

2. On interim motions, the need to achieve self-sufficiency is of less importance.

3. Interim support should be ordered within the SSAG (Spousal Support Advisory Guidelines) range unless exceptional circumstances dictate otherwise.

4. Interim support should only be ordered where a prima facie case for entitlement has been set out.

The father did not dispute that the mother was entitled to temporary spousal support. His issue was with the quantum. The mother is a spouse as defined in section 29 of the Family Law Act, R.S.O. 1990, c. F-3, as amended. She cohabited in a relationship of some permanence with the father, and they are the natural parents of the child. I had no difficulty finding that the mother is entitled to temporary spousal support based on both a compensatory and non-compensatory basis. See Bracklow v. Bracklow, [1999] 1 S.C.R. 420, 236 N.R. 79, 120 B.C.A.C. 211, 63 B.C.L.R. (3d) 77, [1999] 8 W.W.R. 740, 196 W.A.C. 211, 169 D.L.R. (4th) 577, 44 R.F.L. (4th) 1, [1999 715 (SCC), 1999 715, [1999] S.C.J. No. 14, 1999 Cars­well­BC 532. The mother has struggled financially since the separation and has had to make a number of financial sacrifices. She has been financially disadvantaged by the breakdown of the relationship. Her earning potential will also be compromised by her ongoing child-care obligations. See Moge v. Moge, [1992] 3 S.C.R. 813, 145 N.R. 1, 85 Man. R. (2d) 161, [1993] 1 W.W.R. 481, 30 W.A.C. 161, 99 D.L.R. (4th) 456, 43 R.F.L. (3d) 345, [1992 25 (SCC), 1992 25, [1992] S.C.J. No. 107, 1992 Cars­well­Man 143.

The Court of Appeal in Fisher v. Fisher, 2008 ONCA 11, (2008), 88 O.R. (3d) 241, 232 O.A.C. 213, 288 D.L.R. (4th) 513, 47 R.F.L. (6th) 235, [2008] O.J. No. 38, 2008 Cars­well­Ont 43 (Ont. C.A.), stated that the SSAG, although only advisory, are a useful starting point to assess the quantum of spousal support, once entitlement is established. They have been endorsed as ideal for use on temporary support motions. See D.R.M. v. R.B.M., 2006 BCSC 1921, 63 B.C.L.R. (4th) 331, [2006] B.C.J. No. 3299, 2006 Cars­well­BC 3177 (B.C.S.C.).

ANALYSIS

[13] With respect to the husband’s claim that the wife has no basis for making an entitlement claim, I do not agree that she has failed to make her case. It is clear that the husband and wife have disparate incomes and that the wife is attempting to carry a mortgage on the matrimonial home while earning relatively little. In the absence of evidence suggesting that she is not entitled to some form of support, I find that the length of the marriage and the disparate income levels of the spouses are such that a case for interim support has certainly been made.

[14] With respect to quantum and considering Greenglass v. Greenglass, while the husband has assumed a considerable debt load, it is also true that the wife has acquired debt as well. Of more importance, however, is the fact that the husband’s inability to pay support is not clear to me. As I indicated earlier, the husband’s alleged $2600 monthly debt payments appear to be contrasted with the $750/month bankruptcy payments made by same. The Consumer Proposal would, presumably, encompasses all – or certainly most – of the husband’s debt. When I pressed counsel regarding this discrepancy, the only answer she could provide was that the difference may be accounted for by payments as against the $30,000 trailer which is listed in the husband’s Consumer Proposal as exempt property. I have no evidence to support this position nor does it make any immediate sense to me that a $30,000 trailer will have $1850 monthly payments associated with it.

[15] Thus, the husband appears to have the means and needs to pay support in a meaningful quantum as a result of the following:

a. He spends $500/month on cigarettes and alcohol; and

b. He has approximately $1850/month in unaccounted for debt servicing, debt servicing which appears at first blush to run contrary to the Consumer Proposal filed with the Court.

[16] I also accept that the wife may not be entitled to support based upon the husband’s new income. There is no evidence before the Court to suggest that she is entitled to such an elevated sum based on the aforementioned factors (i.e. there is no evidential nexus between the husband’s post-marital income and the wife’s current situation). Nonetheless, I am satisfied that the wife is owed interim support based upon the husband’s previous income. The husband swears that his pre-separation income was between $50,000 and $60,000 although the wife suggests that said number was actually somewhat higher. The wife earns $28,400 per annum according to her financial disclosure. Using $60,000 as the husband’s income and $28,400 as the wife’s income, and assuming a 23-year co-habitation under SSAG, mid-range support is $1,060 per month. I therefore award such an interim amount commencing September 1, 2015.

COSTS

[17] The wife may provide me with cost submissions in no more than 2 pages within 15 days of today’s date while the husband may provide me with reply submissions in no more than 2 pages within 15 days thereafter.

Varpio, J.

Date: 20150828