CITATION: Davis v. Davis, 2016 ONSC 1589
COURT FILE NO.: FS3838-15
DATE: 2016/03/07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MELANIE DAVIS
Melanie Davis, acting in person
Applicant
- and -
PAUL DAVIS
Paul Davis, acting in person
Respondent
HEARD: March 4, 2016
ellies j.
REASONS FOR DECISION
[1] The parties to this application have resolved all of the legal issues arising from their separation, with the exception of spousal support.
[2] In the motion at tab 9 of the continuing record, Mr. Davis seeks a final order for spousal support in his favour. He submits that the parties had reached an agreement on the payment of a lump sum in the amount of $20,000. Alternatively, Mr. Davis seeks support on a periodic basis in the amount of $325 per month for a period equal to the length of their five year marriage.
[3] In support of his submission that an agreement for lump sum support was reached, Mr. Davis relies on a printout of a string of e-mail messages, not all of which managed to find their way into the continuing record. A full copy of the string of messages was filed during the hearing, on consent. In the final exchange between the parties, sent at 2:08 p.m. on August 12, 2015, Ms. Davis wrote to Mr. Davis:
Looks like we have a good foundation for an agreement! I will talk to my parents again tonight and let them know we have agreed on all the major points and about Erinn [Fitzpatrick] writing the agreement.
I will let you know 100% if we can move forward (basically just need to be able to access $20,000) as soon as possible.
[4] Although Ms. Davis is content that a final order be made, she disputes the allegation that the parties reached an agreement on spousal support. She says that the $20,000 referred to in the message set out above was a payment to be made with respect to the matrimonial home, and therefore a part of a proposal to resolve the issue of the equalization of the parties’ net family property. That issue has since been resolved between the parties, as indicated by Rivard J. in his endorsement of February 19, 2016.
[5] I accept Ms. Davis’ submissions on this issue. The first message in the string of messages was sent by Mr. Davis on August 11 at 3:34 p.m. In it, he indicates that a copy of a proposed separation agreement is attached. The materials filed by Mr. Davis do contain a draft separation agreement. Although the reference to $20,000 is set out under the heading “Support”, the words in the template “for his or her own support” are stricken, apparently via the use of a word processor. The words “as in lieu of monthly support payments” are also stricken, but this time, by hand. In addition, there is language in the clause that is designed to ensure that the payment is made before Ms. Davis goes bankrupt, which would not be necessary if the payment was for support: see Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 178(1)(b) and (c). I believe that this documentary evidence supports Ms. Davis’ submission that the $20,000 was to be paid as part of a resolution of the property issues, and not by way of support.
[6] Having concluded that the matter of spousal support has not been settled by agreement between the parties, I now consider Mr. Davis’ request on its merits.
[7] Mr. Davis requests spousal support both on the compensatory model referred to by the Supreme Court of Canada in Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813 and on the non-compensatory model of support discussed in Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 S.C.R. 420. Ms. Davis submits that she is without the means to pay spousal support. She also points out that she paid the sum of approximately $1,100 per month from March, 2015 to December, 2015 towards the costs of the matrimonial home, in which Mr. Davis continued to reside without paying any occupation rent.
[8] With respect, I do not believe that Mr. Davis qualifies for support under the compensatory model. As its name suggests, the compensatory model seeks to compensate one spouse for the economic disadvantages arising from a marriage. Often these take the form of educational or career advancement opportunities forgone by virtue of the role that one spouse played in maintaining the household or caring for children during the marriage. In the case of Mr. and Mrs. Davis, there are no children. They were each free to and did pursue their own careers. I am unable to accept that Mr. Davis suffered any economic disadvantages as a result of the marriage. For this reason, I would not award support on a compensatory basis.
[9] Non-compensatory support is designed to alleviate the economic disadvantage caused by the breakup of a marriage. It recognizes the economic dependency that can develop during a marriage.
[10] The parties began living together in August, 2008. They were married on July 26, 2010 and separated on March 22, 2015. Throughout the course of the parties’ marriage, Ms. Davis was the larger income earner. Estimates of the degree of income disparity during the marriage range from a low of $10,000 a year, according to Ms. Davis, to a high of $30,000 a year, according to Mr. Davis.
[11] The materials indicate that Ms. Davis’ employment income has been quite steady. Based on a comparison between pay stubs from 2014 and 2015, Ms. Davis appears to be making exactly the same salary, which her 2014 T4 form sets out as $66,474.60.
[12] Mr. Davis’ income was also relatively stable up until 2014. In 2012 and 2013, he earned approximately $37,500. In 2014, he became unemployed. However, his earnings until then, combined with the EI benefits he received afterwards, brought him to a total of $34,681 for that year. Mr. Davis advises that he will begin full-time employment again this coming week, expecting to earn between $30,000 and $35,000 per year. This is roughly what he earned in 2014.
[13] I believe that Mr. Davis qualifies for support on a non-compensatory basis, due to the disparity between the parties’ incomes during the marriage and the economic dependency that was the result. However, the goal of mitigating that economic dependency must be balanced against the goal of economic self-sufficiency.
[14] Ms. Davis advises that she is unable to make a lump sum payment of spousal support. This appears to be borne out by the e-mail to which I referred earlier, and by her financial statement. Therefore, I would not make an award of spousal support on a lump sum basis.
[15] A DivorceMate calculation dated May 13, 2015 that was prepared on behalf of Mr. Davis and submitted with his materials shows the range of spousal support payable in a situation where Ms. Davis earns $66,475 and Mr. Davis earns $34,682. It was based on their 2014 incomes and shows a low of $278 and a high of $371 per month, payable for a period of three and one-half to seven years. The midpoint is $325. I see no reason not to use the mid-point.
[16] I am unable to agree with Ms. Davis’ submission that she is without the means to pay monthly support. While her financial statement does indicate a monthly deficit of $250, it does not seem to reflect her actual income. At line 17, the statement shows that Ms. Davis earns $4,200 per month, gross. That is at odds with the figure at line 18, which shows gross earnings of $4,400 per month. There is no information to explain the discrepancy. Neither figure for gross income is accurate, when compared to Ms. Davis’ income tax information, as set out above. Based on that information, Ms. Davis is earning $5,540 per month, gross.
[17] Ms. Davis’ financial statement also no longer accurately reflects her monthly expenses. It was prepared in August of 2015, during the period in which she indicated she was paying the expenses associated with the matrimonial home. According to Ms. Davis, those expenses ended in December.
[18] Based on the foregoing, I am satisfied that Ms. Davis is able to pay spousal support on a monthly basis. I turn, lastly, to the two remaining issues: namely, the commencement date and the duration for which such support should be paid.
[19] Mr. Davis first made his request for spousal support in his answer, which was served and filed in July, 2015. Ordinarily, support might be made payable from this date: see MacKinnon v. MacKinnon (2005), 2005 13191 (ON CA), 75 O.R. (3d) 175 (Ont. C.A.). However, I do not believe that this would be appropriate in this case because of the expenses borne by Ms. Davis relating to the matrimonial home in which Mr. Davis was living. Instead, I believe that the support should be prospective only.
[20] During her submissions, Ms. Davis stated that Mr. Davis never reached his full earning potential during the marriage because he changed jobs nine times in five years. In reply, Mr. Davis attributed the number of job changes to the marriage itself. If that is correct, then it follows that Mr. Davis should be able to reach his full earning potential more easily, now that the parties have separated. For that reason, I believe that the duration of the support should be at the lower end of the range.
[21] For all of the foregoing reasons, a final order shall issue, requiring Ms. Davis to pay support to Mr. Davis in the amount of $325 per month, commencing on the first day of April, 2016 and continuing on the first day of each month thereafter, for a period of 42 months.
[22] Mr. Davis was successful in his motion. Therefore, he should be awarded his costs. During argument, Mr. Davis indicated that, if he was successful, he would be content to receive one-half of the fees paid for filing his materials, which the parties advise would amount to an award of approximately $65. This is more than reasonable. Therefore, the order shall include a clause requiring Ms. Davis to pay this amount.
Ellies J.
Released: March 7, 2016
CITATION: Davis v. Davis, 2016 ONSC 1589
COURT FILE NO.: FS3838-15
DATE: 2016/03/07
ONTARIO
SUPERIOR COURT OF JUSTICE
MELANIE DAVIS
Applicant
– and –
PAUL DAVIS
Respondent
REASONS FOR DECISION
Ellies J.
Released: March 7, 2016