Morin v. Morin, 2016 ONSC 2241

CITATION: Morin v. Morin, 2016 ONSC 2241

COURT FILE NO.: 3450/15

DATE: 2016-04-01

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

TANYA LYNN MORIN

Applicant

– and –

DAMIEN CHRISTOPHER MORIN

Respondent

Bonnie L. Ostroski, Counsel for the Applicant

Heather-Ann Mendes, Counsel for the Respondent

HEARD: March 31, 2016

RASAIAH J.

RULING ON MOTION

1The parties are husband and wife. The started living together in 2002; were married in 2007; and separated in 2015. They lived separate and apart under the same roof for approximately one year until approximately February of 2016, which is when the Applicant agreed to transfer the matrimonial home to the Respondent at his request and moved out. Previously, the home had been listed for sale but did not sell.

2There are two children of the parties’ marriage, namely Evan Morin born July 7, 2007 and Avery Morin born September 3, 2008.

3The Respondent is an O.P.P. officer. The Applicant works part-time at a doughnut store and a child care facility. She was educated 10 years ago in law and security and holds a diploma however she left her employment in 2010 to move to Sault Ste. Marie for the Respondent’s employment. She proposes to re-train September 2016.

4The issue is spousal support. There is no issue as to entitlement to spousal support. The issue is quantum. The Applicant submits she should receive the mid-range Spousal Support Advisory Guideline amount, in the amount of $1,510.00. The Respondent is prepared to pay $1,000.00 per month which is just below the low-range amount of $1,088.00.

5The Respondent relies on debts he has, his financial circumstances, his care of the children (which is 2 nights a week which he hopes to raise to 3 and eventually to an equal parenting time schedule). He also asks the court to consider his payment of jointly incurred debts. Finally, he suggests the Applicant is underemployed and/or requires incentive to achieve self-sufficiency.

6The Applicant has need and no issue was taken with that.

7Section 15.2 of the Divorce Act provides that a court may make an interim order requiring a spouse to pay support for the other spouse, as the court thinks reasonable pending determination of the application for support made by the party. The order may include terms as the court thinks is fit and just. The factors include the conditions, 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. The objectives are to (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the souses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (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.

8Spousal support orders are in the nature of a “holding” order intending to provide a reasonably acceptable short-term financial solution for the parties until trial. Such interim orders are not binding on the trial judge and the trial judge can vary the amount of interim spousal support paid, either to increase or decrease the amount which should have been paid and adjust the financial obligations accordingly, so that justice can be done to either or both parties on a full and complete evidentiary record at trial.

9What is a precondition to an interim spousal support award is the establishment of a prima facie entitlement to spousal support under s. 15.2 of the Divorce Act.

10Interim spousal support motions are often made on conflicting evidence and the lack of a complete record. A review of the means, needs and all the surrounding circumstances, particularly financial circumstances, is a must for the court to make a reasonable interim spousal support order.

11In Samis v. Samis, 2011 ONCJ 273 the court dealt with the considerations in making an interim spousal support award and considered 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.), wherein the court set out the following principles in dealing with temporary spousal support motions:

Interim support is to provide income for dependent spouses from the time the proceedings are instituted until trial.

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.

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.

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.

12In Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813, the Supreme Court of Canada makes clear that all of the four objectives in s. 15 of the Divorce Act, R.S.C. 1985 (2d. Supp.), c. 3, must be considered when setting spousal support and that no single objective, including that of self-sufficiency, is paramount. The majority stated, at para. 81:

If childcare responsibilities continue past the dissolution of the marriage, the existing disadvantages continue, only to be exacerbated by the need to accommodate and integrate those demands with the requirements of paid employment. In that regard, I adopt without reservation the words of Bowman J. in Brockie v. Brockie (1987), 1987 CanLII 989 (MB QB), 5 R.F.L. (3d) 440 (Man. Q.B.), aff’d (1987), 1987 CanLII 141 (MB CA), 8 R.F.L. (3d) 302 (Man. C.A.), at pp. 447‑48:

It must be recognized that there are numerous financial consequences accruing to a custodial parent, arising from the care of a child, which are not reflected in the direct costs of support of that child. To be a custodial parent involves adoption of a lifestyle which, in ensuring the welfare and development of the child, places many limitations and burdens upon that parent. A single person can live in any part of the city, can frequently share accommodation with relatives or friends, can live in a high‑rise downtown or a house in the suburbs, can do shift work, can devote spare time as well as normal work days to the development of a career, can attend night school, and in general can live as and where he or she finds convenient. A custodial parent, on the other hand, seldom finds friends or relatives who are anxious to share accommodation, must search long and carefully for accommodation suited to the needs of the young child, including play space, closeness to daycare, schools and recreational facilities, if finances do not permit ownership of a motor vehicle, then closeness to public transportation and shopping facilities is important. A custodial parent is seldom free to accept shift work, is restricted in any overtime work by the daycare arrangements available, and must be prepared to give priority to the needs of a sick child over the demands of an employer. After a full day’s work, the custodial parent faces a full range of homemaking responsibilities including cooking, cleaning and laundry, as well as the demands of the child himself for the parent’s attention. Few indeed are the custodial parents with strength and endurance to meet all of these demands and still find time for night courses, career improvement or even a modest social life. The financial consequences of all of these limitations and demands arising from the custody of the child are in addition to the direct costs of raising the child, and are, I believe, the factors to which the court is to give consideration under subs. 7(b).

13In Moge v. Moge, supra, L’Heureux-Dube J. noted that a wife’s child-care responsibilities contribute to disadvantages arising from the roles adopted in marriage. While proper child support addresses the direct and indirect costs of child care, it does not address the limitations on a parent’s career or job opportunities arising from his or her ongoing child-care responsibilities: see Moura v. Moura, [1998] O.J. No. 5351 (C.A.). Ongoing child-care responsibilities may justify support, to recognize career/job limitations imposed on a custodial parent: see Andrews v. Andrews, supra. and Yeates v. Yeates 2008 ONCA 519; leave to appeal refused [2008] S.C.C.A. No. 447 (S.C.C.

14Upon marriage breakdown, a dependent has an obligation to make reasonable efforts to achieve self-sufficiency: see Bildy v. Bildy (1997), 1997 CanLII 12240 (ON SC), 28 R.F.L. (4th) 315 (Ont. Gen. Div.); Moge v. Moge, supra.

15A court must realistically assess a person’s potential for self-sufficiency: see Moge v. Moge, supra; Russell v. Russell, supra.

16A dependent spouse is not disentitled to support because he or she does not make reasonable efforts to achieve self-sufficiency. Rather, a court should decide what employment is reasonably available to the dependent, attribute income appropriate to such employment, and reassess need and entitlement: see Bildy v. Bildy, supra. Alternatively, a court may award limited-term support to bring home to the dependent his/her obligation to make reasonable employment efforts: see Bildy v. Bildy, supra. At the expiry of the limited term, the onus is on the dependent to explain what efforts he/she has made and why support should continue if he/she is still under employed.

17A dependent is entitled to some latitude in choosing a career or vocation. In deciding whether a dependent’s decision to pursue a particular career is reasonable: see Trewin v. Jones (1997), 1997 CanLII 1105 (ON CA), 26 R.F.L. (4th) 418 (Ont. C.A.).

18A court may award support to permit a spouse to retrain or upgrade his or her skills if there is a reasonable chance that the dependent will be able to make a meaningful contribution to his/her self-sufficiency upon completion of the program: see Otterbein v. Otterbein, [1999] O.J. No. 2975 (C.A.).

19The SSAG are neither legislated, nor binding. However they are a useful tool with which to measure the quantum and duration of spousal support: Ontario Court of Appeal: Gray v. Gray 2014 ONCA 659, 122 OR (3d) 337; [2014] OJ No 4519 (QL); 325 OAC 117.

20The debt payment set out in the Respondent’s financial statement is set to end next month. That amount is $632.84. There is dispute as to who paid what joint debt and with what funds and who contributed to the payment. That issue is not for me to decide and given that the payment will be ending next month I do not consider what will then become in essence the past payment of joint debt as a factor on this interim support motion for ongoing interim support. It may play a role in the ultimate determination of the issue.

21I reviewed the financial statement of the Respondent. The Respondent is claiming $200.00 and $160.00 per month for alcohol and tobacco and meals outside of the home respectively. To date, I also heard which was not disputed that the Respondent has been able to pay down the joint debt in the amount of approximately $6,000.00 and allegedly received a tax refund of $4,785.00 that has not been disclosed. The Respondent further had allegedly cashed in banked or in lieu time through his employment in the amount of $7,000.00 with the intention to purchase a motorcycle, although according to his counsel, he did not proceed with this due to the fact that he could not afford it, which information is not in the materials.

22The Respondent now owns the matrimonial home. Instead of taking a mortgage through his father, which is alleged to have been the plan, he sought and obtained a conventional mortgage through a financial institution. Whether or not the new mortgage payment on the matrimonial home is slightly lower than it was previous to the Applicant transferring the home to him, the Respondent elected to keep this home amongst the concern that he would not be able to afford it. In my view, the Applicant’s need for support takes priority over his sentimental attachment to the home and his decision to keep the home.

23The Respondent, although he agreed on this motion to set the Applicant’s income at $15,000.00 suggested that this ought to be a factor in determining the support. He could have argued he states that it be higher based on underemployment and/or unknown tax treatment of her current income. I give no effect to this argument, on the basis that I am satisfied based on the affidavit material filed that the Applicant has and continues to make reasonable effort to attain self-sufficiency, having taken employment as she has, and the number of applications she has made to date. This issue does not appear to be lack of effort. On this same basis, I am also satisfied and give no effect to the argument that low-range support ought to be ordered as incentive to the Applicant to increase her income. She is working at such employment that has been made available to her. The fact of the matter further appears to be that six months from now, September 2016 she will be a student, with the intention that she can re-train to become self-sufficient. Lastly, while counsel did not provide a calculation, I suspect that a gross-up of $15,000.00 even if the income was not taxable would likely continue to attract support in a similar range and it would not be much less.

24The Applicant claims she left her employment in 2010 to move to Sault Ste. Marie for the Respondent. Further due to the parties’ two children having autism, she claims, it was agreed that she stay home and tend to their needs. As such, she may have a compensatory as well as a needs-based claim and this is a triable issue and a consideration that may bring support above the low-range amount.

25The Applicant has the primary care role for the children who are young, ages 7 and 6. I accept that the children have special needs that require attention. These factors support an award higher than that of the low-range amount.

26The Applicant’s financial statement discloses costs that are not extraordinary. The needs are $3,926.67. The Applicant lowered her standard of living, in terms of accommodations, compared to that of the Respondent. She has limited income. This is a factor supporting an award higher than that of the low-range amount.

27The Applicant will be retraining in the immediate future aimed at promoting self-sufficiency, and this too, in my view is a factor. It was not suggested that it was unreasonable for the Applicant to seek to retrain given the facts in this case. I appreciate that when this occurs that the Applicant may receive funding. That will not be however until September of 2016 likely.

28The Applicant raised the issue of the net cost of the spousal support to the Respondent. The net cost of spousal support of $1,088 to the Respondent according to the calculation submitted by counsel is $616.00 and the net benefit to the Applicant is $1,002.00. The net cost of spousal support of $1,510.00 is $854.00 and the net benefit to the Applicant is $1,361.00. Given this, given the debt payment is ending for the Respondent as set out above very soon, the Respondent has ability to pay. He is suggesting he can afford $1,000.00. I find he has ability to pay based on the foregoing the mid-range amount.

29Based on all of the foregoing, I am of the view that support in the mid-range as sought is appropriate.

30I order based on the above and on the issues of child support, spousal support variation and payment for March 2016, on consent:

1. The Respondent pay spousal support to the Applicant on an interim basis commencing April 1, 2016 and on the first day of each month thereafter, the amount of $1,510.00.

2. The Respondent, having income of $117,174.00 ($118,538.00 less union dues of $1,364.00) shall pay to the Applicant interim child support for the children, namely Evan Morin born July 7, 2007 and Avery Morin born September 3, 2008, commencing April 1, 2016, and on the first day of each month thereafter, the amount of $1,626.00.

3. The spousal support ordered payable for the Applicant herein, may be reviewed on an interim basis in a material change in circumstances, including the circumstance of the Applicant potentially attending school in September of 2016.

4. Having not paid an amount to the Applicant on account of support for March of this year, the Respondent shall pay to the Applicant the sum of $1,000.00 which shall be a credit to him in the determination of final spousal support in this proceeding.

5. Costs submissions may be made to me in writing if costs are being pursued within 15 days of the date of this Order.

6. This matter is otherwise adjourned to April 14, 2016 at 10:00 a.m. to set the next step in the proceeding.

Rasaiah J.