King v. King, 2016 ONSC 5264
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: MARIA TRINDADE KING, applicant
AND: LAWRENCE ROBERT KING, respondent
BEFORE: VOGELSANG J.
COUNSEL: Jordan D. McKie for the applicant Lawrence Robert King in person
HEARD: July 13, 2016
ENDORSEMENT
1Ms. King initiated a motion June 9, 2016 for interim spousal support retroactive to May 1, 2016, with credit being given to Mr. King for some payments made voluntarily in May and June of this year.
2The parties began living together in 1985, married in 1988 and separated June 15, 2015. Ms. King describes their union as “a thirty year relationship.” Their two children, Nathan and Tiffany, 26 and 22 years of age, respectively, are now independent.
3Ms. King was usually employed during the marriage but is quite specific in her affidavit evidence about her work always “coming second” to that of Mr. King. She had to absent herself from her jobs to take care of the children and, as a result, found her career stifled. She is working as a cashier at Food Basics but describes the grocer’s policy as restricting part-time workers to 24 hours of weekly work. Considering the preference traditionally afforded by the parties to Mr. King’s employment and the consequent inability of Ms. King to obtain additional skills and training for the competitive workplace, Mr. King’s insistence in his May 19, 2016 e-mail to Mr. McKie – that Ms. King is capable of full-time work and should be seeking it – is unrealistic.
4At separation, Mr. King had been employed for ten years at Hayman Construction in London and enjoyed membership in the union, earning over $78,700 in 2015. After this lawsuit was launched, he was laid off from his job on February 19, 2016. He has not been forthcoming concerning his union list seniority or particulars of new contracts or work available to him. Likewise, it appears there has been a lamentable failure on his part to comply with the extensive financial disclosure ordered by Henderson J. at the case conference March 17, 2016, despite the fact that the temporary order was made pursuant to interim minutes of settlement.
5For two weeks in April and May, 2016 Mr. King (a trained, experienced long haul transport driver) found work driving for Colston Freight Carriers Ltd. but he quit, giving up that job. In his May 19, 2016 e-mail, he angrily says:
And yes i did quite [sic] just as your client just quit her job. But i do understand that this is a one way street your client is aloud do [sic] do what ever she wants.
6While Mr. McKie extrapolates, from his Colston pay stub, that Mr. King’s earnings would be an annual $72,000, Mr. King insists that he actually received only $270 but gives no understandable explanation for that statement. If he is aware of particular circumstances or facts that would justify his giving up his job, he has a duty to the court – and to himself – to put them forward squarely; otherwise the potential support recipient is in no position to draw conclusions about quantum. See Henderson v. McClean, [2015] O.J. No. 2266 (Ont. C.J.). As well, the failure to give an explanation leaves the court in an impossible circumstance of having to “just guess” if he is correct: Stetler v. Stetler, 2012 ONSC 194 (Sup. Ct.). The adverse inference that can be drawn against a party who fails to explain or to lead evidence of which he alone was in possession was fully canvassed by Kruzick J. in Ojo v. Mason, 2013 CarswellOnt 2509 and the cases he cited.
7By quitting his trucking job and applying for Employment Insurance, Mr. King became intentionally unemployed: Drygala v. Pauli (2002), 61 O.R. (3d) 771 (C.A.). That case was based on s. 19(1)(a) of the Federal Child Support Guidelines, SOR 97-175 but is equally applicable to income determinations in issues of spousal support. See Crowe v. McIntyre, 2014 ONSC 7106 (Sup. Ct.).
8There is nothing before me to justify, in a compelling way, Mr. King’s decision to quit his employment or to render his action “reasoned, thoughtful and highly practical”: Thompson v. Gilchrist, 2012 CarswellOnt 8996 (Sup. Ct.). It is a breach of the general duty of a support payor not to decrease income. See Hilliard v. Popal, 2010 ONCJ 619 (Ont. C.J.).
9I must exercise my discretion to impute as income an amount founded on a rational basis: D.(D.) v. H.(D.), 2015 CarswellOnt 8418 (C.A.). Doing so, it is allowable to take into consideration evidence of a spouse’s previous income as was approved in Lawson v. Lawson (2006), 2006 CanLII 26573 (ON CA), 81 O.R. (3d) 321 (C.A.). Taking all the circumstances into account, together with the fact that a distance trucker would be able to achieve some reduction in income for support purposes by application of the Adjustments to Income employment expenses provisions in s. 1(e) of Schedule III to the Ontario Child Support Guidelines, O. Reg. 391/97 [as amended], I impute income to Mr. King in the amount of $65,000 annually for the purposes of assessing the quantum of interim spousal support.
10In his submissions, Mr. McKie urges upon me that his client is in “dire straits,” residing with her mother and sister in a two bedroom apartment. She shares a bed with her 75 year old mother and has no real space for her possessions. Her income, she says, is overborne by her expenses, even with her diminished accommodation costs. She pointedly states that Mr. King still lives in his former residence and continues to drive both his Cadillac and Denali motor vehicles.
11The proper amount of interim spousal support has been usually assessed by the application of some well-known principles. In Singh v. Singh, 2013 ONSC 6476 (Sup. Ct.), Price J. approved of the following statement of Lemon J. in Driscoll v. Driscoll, 2009 CanLII 66373 (ON SC), [2009] O.J. No. 5056 (Sup. Ct.):
14 The recent case of Robles v. Kuhn, 2009 BCSC 1163, [2009] B.C.J. No. 1699, provides a helpful list of principles governing interim support motions:
On applications for interim support the applicant's needs and the respondent's ability to pay assume greater significance;
An interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor's ability to pay warrants it;
On interim support applications the court does not embark on an in-depth analysis of the parties' circumstances which is better left to trial. The court achieves rough justice at best;
The courts should not unduly emphasize any one of the statutory considerations above others;
On interim applications the need to achieve economic self-sufficiency is often of less significance;
Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise;
Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out;
Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support.
12In the Spousal Support Advisory Guidelines: The Revised User’s Guide 2016 Department of Justice Canada, Professors Rogerson and Thompson add the following helpful comment at Pt. 5:
(a) Use of the SSAG on interim applications
The Advisory Guidelines are intended to apply to interim orders as well as final orders. The interim support setting is an ideal situation for the use of guidelines. There is a need for a quick, easily calculated amount, knowing that more precise adjustments can be made at trial. Traditionally, interim spousal support was based upon a needs-and-means analysis, assessed through budgets, current and proposed expenses, etc. All of that can be avoided with the SSAG formulas, apart from exceptional cases.
In D.R.M. v. R.B.M., 2006 BCSC 1921, Justice Martinson set out in detail the rationale for the application of the Advisory Guidelines to interim spousal support orders, concluding:
[19] They are a useful tool to have when determining interim spousal support. By focusing on income differences they provide a helpful measure of needs and means. Their use is consistent with the purposes of interim orders: to bridge the gap between the start of the litigation and the time when a resolution is reached at trial or by agreement; to avoid lengthy and costly interim litigation; to move the litigation to a timely resolution; and to reduce conflict
The usefulness of the Guidelines in the interim context when there is limited information was emphasized in Langdon v. Langdon, 2008 CarswellOnt 545, [2008] O.J. No. 418 and in Thompson v. Thompson, 2010 SKQB 322. In Drouillard v. Drouillard, 2012 ONSC 4495, in the context of a 30 year marriage, Justice Broad reviewed the general principles applicable to interim support and stated that interim support should generally follow the SSAG and that interim support should be based upon income-sharing and not budgets. Although judicial statements of the principles that govern interim awards tend to emphasize the primacy of needs and means, entitlement may also be recognized on compensatory grounds: see B.L.B. v. G.D.M., 2015 PESC 1 and H.F. v. M.H., 2014 ONCJ 450. The SSAG formulas reflect both compensatory and noncompensatory bases of entitlement, and their extensive use in the interim context shows that interim awards may also address compensatory objectives. In general both compensatory and non-compensatory claims should be considered at the interim stage, despite some court’s insistence otherwise.
There are now many reported decisions using the SSAG in the interim context.
13Applying the SSAG, an order will issue requiring Mr. King to pay the monthly sum of $1,885 (the midrange of $1,616 - $1,885 - $2,028) based on respective incomes of $65,000 and $13,300 (30 years cohabitation and a support recipient aged 48 years at separation). Payments will begin May 1, 2016 and Mr. King will be given credit for two payments of $300 for May and June, made pursuant to the without prejudice order of Henderson J.
14Costs submissions are to be received by my assistant from Mr. McKie within 45 days. Mr. King will have 30 days from his receipt of the submissions to deliver his own.
“Justice Henry Vogelsang”
Justice Henry Vogelsang
Date: August 19, 2016