Superior Court of Justice - Ontario
Citation: Bennett v. Tyrell, 2016 ONSC 1573
Court File No.: FS-15-15273
Date: 2016-03-04
Re: Beatrice Bennett, Applicant
And: Devon Tyrell, Respondent
Before: Carey J.
Counsel: Sheila A. Beaumont, Counsel, for the Applicant Martina Dwyer, Counsel, for the Respondent
Heard: January 25, 2016
Endorsement
[1] This is an application for interim interim spousal support. The issues, as framed by both parties, are:
Entitlement: To what extent is this an issue to be explored at this stage?
Quantum: What incomes should be used in calculating support using the S.S.A.G.? Should a higher income be imputed to the applicant?
[2] The parties were married in 2004. There is a dispute between them as to whether they had cohabitated for 15 years or 5 years prior to that marriage. They continued to reside under one roof until July 2014, although living separate lives since 2009.
[3] The applicant wife (“the wife”) is 64 years old, has been unemployed since 2008, and receives CPP disability benefits as a result of degenerative arthritis and two knee replacements.
[4] The respondent husband is 59 years old and employed full time with Canada Post. He indicates an income of $69,763.
[5] He argues that the relationship was of short duration and his wife is capable of earning at least $12,000 more a year on a part time basis. He says she was profligate with a slip and fall settlement she received in 2009-10. He states that given the brevity of their cohabitation and that they have been living apart for over six years, that she is disentitled to support. In the alternative, he says support should be set at $625.
[6] The applicant relies on authorities to assert that the bar for establishing a prima facie case is not a high one for interim spousal support. She seeks approximately $1,800 a month. There are currently no children of the marriage with either spouse.
[7] Interim spousal support orders require a consideration of the factors in s. 15.2(4) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended, and the objectives for spousal support set out in s. 15.2(6). The factors in play include “the condition, means, needs” of each spouse, as well as the length of time of the cohabitation.
[8] Section 33(9) sets out the circumstances a court should consider in making a support order. The applicable sections to this application are:
a) the dependant’s and respondent’s current assets and means;
b) the assets and means that the dependant and respondent are likely to have in the future;
c) the dependant’s capacity to contribute to his or her own support;
d) the respondent’s capacity to provide support;
e) the dependant’s and respondent’s age and physical and mental health;
h) any legal obligation of the respondent or dependant to provide support for another person; and
l) if the dependant is a spouse,
i. the length of time the dependant and respondent cohabited,
ii. the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation;
iii. whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,
iv. whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,
v. any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support,
v.1 Repealed: 2005, c. 5, s. 27(12).
vi. the effect on the spouse’s earnings and career development of the responsibility of caring for a child.
[9] While the length of the parties’ cohabitation and the applicant’s ability to support herself are disputed and may be relevant to a final order in this case,[^1] I am satisfied on the material here that the applicant has made out a prima facie case for interim support. She is disabled, 64 years old and on CPP. The respondent’s material makes it clear he considers that he was the prima facie source of support for not only the applicant, but some of her extended family, during the marriage. He earns a net income of approximately $70,000 per annum. The material does not persuade me that any income should be imputed to the applicant for the purpose of an interim order. As summarized in Samis v. Samis, 2011 ONCJ 273, the court on an interim support motion need not conduct a complete inquiry into all the aspects and details to determine the extent of economic disadvantage from the relationship. As long as a triable case exists, an interim order, designed to be a “holding order” pending final disposition, should be made based on the parties’ means and needs.
[10] I accept that SSAG is advisory only and a useful guideline. Ultimately each case’s individual circumstances must be considered. Given the other financial obligations of the respondent and the needs of the applicant, I find that an appropriate interim support order is $1,200 a month, commencing December 1, 2015.
[11] I have received costs submissions from both parties. Costs to the applicant in the amount of $2,000.
Original signed “Justice Carey”
Thomas J. Carey
Justice
Date: March 4, 2016
[^1]: See Ketchabaw v. Bouck, 2016 ONSC 184 and Peters v. Peters, 2015 ONSC 4006.