Court File and Parties
KINGSTON COURT FILE NO.: 570/15
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Pamela Paul, Applicant
AND
Joseph Bruce Barrett, Respondent
BEFORE: Mr. Justice Timothy Minnema
COUNSEL: Mark S. LaFrance, for the Applicant
Lesley Kendall, for the Respondent
HEARD: December 5, 2016
AMENDED ENDORSEMENT
(December 20, 2016: The parentheses in the first sentence of paragraph [20] added)
MINNEMA, J.
1The applicant Ms. Paul, age 61, has brought this motion for interim spousal support from the respondent Mr. Barrett, age 68. They are not married and have no children together. Both had been married previously. They began their relationship in 1998. The nature of that relationship is in dispute.
Overview of the Law
2The Family Law Act, R.S.O. 1990, c.F.3 governs. Part III of the Act allows the court to order spousal support. There are two steps in that process.
3The applicant must establish that she meets the threshold requirements. As the support obligation found in section 30 is to provide for the other “spouse”, she must first come within that definition. She must also establish entitlement, which in this case would be either on a compensatory or non-compensatory basis.
4Provided that all threshold requirements are met, the second step is to determine the appropriate amount of support. The circumstances to be considered are listed in section 33(9) keeping in mind that for an interim order the remedy will be short term and is meant to ensure that the dependant has sufficient means to maintain a reasonable lifestyle until trial: Charbonneau v. Charbonneau, 2004 CanLII 47773 (ON SC), [2004] O.J. No. 5059 (S.C.J.) at para. 15.
Issues
5The issues can therefore be summarized by the following questions:
(a) Does the applicant have standing as a spouse? If not, that ends the inquiry.
(b) If so, is there compensatory or non-compensatory entitlement? If not, that ends the inquiry.
(c) If so, what is the appropriate level of interim support?
(d) Lastly, if the thresholds are met, should the interim support award be retroactive?
6For both of the first two threshold issues the court at the interim stage usually does not conduct an in-depth analysis; however, the claimant must establish a prima facie case: see Charbonneau at paragraphs 15 and 16, and Bridge v. Lawrence, [2016] O.J. No. 4207 (S.C.J.) at paragraphs 16 to 20. The respondent has indirectly asked me not to apply that test by urging me to simply defer the matter to trial, or to a trial of the issue, on the basis that I cannot fairly determine standing or entitlement when important and relevant facts are in dispute. He argues that his denial of a spousal relationship and the fact that the parties are not married defeats any prima facie entitlement. He further argues that extra judicial caution is required as he will be unable to recover amounts paid if the applicant fails to establish entitlement at trial. He adds that there would be little corresponding prejudice to her as he continues to give her $3,000 per month. While I accept prejudice is a concern and there is a need for caution, in my view the prima facie case test is to be applied. Another way of stating the test is whether the moving party is able to make out a “good arguable case”: see Hotte v. Robertson, [1996] O.J. No. 1433 at paragraphs 8 and 17, and Bater v. Bater, 2006 CanLII 22929 (ON SC) at para. 7.
First Threshold Issue - Is There a Prima Facie Case that the Applicant is a “Spouse”?
7“Spouse” is a defined term in section 29 and for the purposes of this motion includes “either of two persons who are not married to each other and have cohabited … continuously for a period of not less than three years”. “Cohabit” is also a defined term per section 1(1) and means “to live together in a conjugal relationship”. The generally accepted characteristics of a conjugal relationship defined in the jurisprudence include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple: see Moldowich v. Penttinen, 1980 CanLII 1537 (ON SC), [1980] O.J. No. 1904 (Ont. Ct. (Gen. Div.)) at para. 16, and M. v. H., 1999 CanLII 686 (SCC), [1999] 2 S.C.R. 3 at para. 59. These elements may be present in varying degrees and not all are necessary, nor is a traditional marital model necessary to come within the definition (M. v. H. at para. 59).
Shared Shelter
8At the start of the relationship the applicant claimed that the respondent often stayed at her residence, a boarding house where she was employed caring for an elderly person. That is disputed. In 2007 she moved permanently into a cottage owned by the respondent -- one of many properties he owns -- and lived there until September of 2015 when the relationship ended. Over time she moved in some furnishings. She claims that the respondent was living at the cottage with her, spending most nights, and that this was treated by them as their home. The respondent points out that he had another property where he spent most mornings preparing for his day. That was not disputed, although it was noted that this was also his place of work where he kept his property management office. The applicant acknowledges that the respondent also slept there if he had reasons not to drive to the cottage such as work, dinners with his adult children, and/or if he had been drinking. The frequency of his stays in town are somewhat vague in each party’s evidence. The parties spent significant time at the cottage even before the applicant moved in, and the respondent concedes:
I spent increasing amounts of time at the cottage after the Applicant moved in there because there was always a party atmosphere with the neighbours which was really enjoyable. It was an asset having Pam at the cottage because I was invited to more events as part of a couple than as a single and between May of 2007 and approximately two years prior to separation, she met my needs when I stayed at the cottage.
Sexual and Personal Behaviour
9The parties were sexually intimate throughout, although that waned in the last few years. The respondent claims, however, that it was non-exclusive and open in the sense that he was having sex with other women indiscriminately and in particular with one woman regularly (once a week) throughout. His materials allege that the applicant also had other relationships.
10The applicant denies that she had other sexual relationships, and indeed there is little evidence to support that. Most of what the applicant relies on are conclusionary statements and belief statements from other affiants. He has no knowledge himself of other relationships.
11The respondent’s affiant witnesses claim that his promiscuous behaviours and indiscriminate sex with other women was general knowledge. The applicant is adamant she did not know. The respondent did not advise her of those relationships. None of his affiant witnesses averred to having detailed discussions with the applicant about the respondent’s sexual behaviour. The few instances where they refer to something being said to or by the applicant are vague and without particulars or context and are denied by her. The applicant indicates that except for one incident of infidelity by the respondent soon after the relationship started she thought they were monogamous. That one noted infidelity was with the very same person that the respondent now claims to have been seeing once per week throughout. The woman involved confirms that when the applicant learned of her and the respondent in 1998, the applicant insisted that the relationship end and it did. This lends weight to the applicant’s position that if it did resume it was without her knowledge, acquiescence, or approval. She indicates her shock on reading the respondent’s reply materials, and had herself tested for sexually transmitted diseases.
Services
12As for services, the applicant did most of the cleaning and cooking at the cottage, although some of it was shared. The applicant did most of the cosmetic gardening, the respondent maintained a vegetable garden. The applicant bought and paid for food, although the respondent contributed to the groceries from time to time. The respondent kept clothes at both the cottage and his other house. As noted, the respondent felt that when he was at the cottage the applicant met his needs.
Social Activities
13There is no question that the parties vacationed and travelled together, although the respondent also did so separately at times, including hunting, fishing, golfing, and snowmobiling. They socialized together with family and friends regularly and consistently throughout their relationship.
Economic Support
14The respondent’s economic support of the applicant was limited to his paying all the expenses of the cottage, paying towards the groceries from time to time, paying for the trips they went on together including with other friends, and paying for meals when dining out. The applicant worked, they did not co-mingle funds and had separate bank accounts, and the applicant played no role in respondent’s property business. Neither party identified themselves as “common law” in their income tax filings.
Societal Perception
15As to the social perception of the parties, that evidence was mixed. The applicant has cards, communications, and pictures suggesting that even before they began residing at the cottage she was integrated into the respondent’s family, including being referred to as “mom” at times by the respondent’s adult children and “Nana Pam” in relation to the respondent’s grandchildren. However, the respondent’s adult children have filed affidavits denying any such relationship, indicating such things were said only as a kindness to the applicant, who they characterized generally as their father’s “main girlfriend.” The applicant’s sister filed an affidavit indicating the parties were a couple. Both parties have filed conflicting affidavits from friends (now ex-friends of the other) supporting their positions.
Summary
16While much of the material before me will require testing at a trial to resolve the disagreements, in my view looking at the evidence as a whole in light of the Moldowich criteria and at the applicant’s evidence in particular, it establishes a prima facie case that the parties were cohabiting at least since 2007. Put another way, the applicant has produced enough evidence to allow the trier of fact to infer that she was a spouse (see Bridge at para. 20) and she has a good arguable case. The life the respondent maintained with the applicant cannot be cancelled out at this stage by the playboy-like life he indicates he also pursued.
Second Threshold Issue - Is There a Prima Facie Case for Entitlement?
17Even on an interim motion a finding of entitlement is required. While in my view there is no prima facie case of entitlement on a compensatory basis, there is clearly non-compensatory entitlement based on need. The separation occurred when the applicant’s addiction to alcohol left her essentially incapacitated. She currently has limited income, namely her Old Age Security and Canada Pension Plan Disability, and it does not meet her needs. The respondent is a man of significant means. He recognizes her need in that after a without prejudice agreement between them was terminated he has been voluntarily paying her $3,000 per month.
Third Issue – The Level of Spousal Support
18I have looked at the means and needs of the parties as presented in their sworn materials. They have provided me with their Spousal Support Advisory Guidelines (“SSAG”) calculations as generated by the Divorcemate Software. As noted in the Guidelines themselves at para. 5.3, the SSAGs provide quick and easily calculated numbers incorporating many of the basic support criteria such as incomes, ages, and the length of the relationship, and are therefore an ideal tool to assist the court in arriving at temporary orders while more precise adjustments can be made at trial.
19In deciding which of the proffered SSAG calculations to consider, I have noted the following:
(a) Subject as always to the testing of the evidence at trial, a prima facie case has been made out that a spousal relationship commenced when the applicant moved into the respondent’s cottage in May of 2007 and ended in September of 2015.
(b) I am not prepared to impute income to the applicant at this interim stage as I am not satisfied that she is intentionally underemployed. She is still struggling to recover from her alcohol addiction, is on disability, and her medical reports suggest more time is needed before she can return to work. The amount of additional income she could earn before a reduction in her CPP disability is not in itself a rational basis on which to impute that same amount, and in any event the impact on the SSAG ranges would be minimal.
(c) As the Child Support Guidelines definition of income is the starting point in determining income under the SSAGs, I include in income the respondent’s tax deduction for capital cost allowance with respect to real property per Schedule III. I have also included the gross-up on that amount to reflect that he is paying less income tax than a salaried employee by virtue of the deduction: see Katarzynski v. Katarzynski, [2012] O.J. No. 2152 (O.C.J.) at para. 114.
20The SSAG calculations that meet the above criteria (attached as Exhibit 1 using an income of $327,746 for the respondent and $11,688 for the applicant) provide a range of monthly support from $3,279 (low) to $3,836 (mid) to $4,372 (high). As to what would be fair and equitable within that range the applicant notes that she is struggling with her addiction, has limited income and earning capacity, is 61 years old, and has little in the way of assets. There is no property claim. The respondent in turn points out that the applicant has a weak to non-existent compensatory claim and that her needs (calculated as the shortfall between her income and expenses in her most recent financial statement although not considering income taxes) would be met near the low end. He argues that any higher level would be a windfall given their modest standard of living when together and the limited extent of his financial contributions.
21In weighing these arguments I find that interim spousal support at the SSAG mid-range of $3,836 per month is a reasonably acceptable solution on expeditious basis until the issues can get a full airing at trial: see Brown v. Brown (1999), 1999 CanLII 15074 (ON SC), 45 O.R. (3d) 308 (Ont. S.C.J.) at para. 34.
Fourth Issue – Retroactive Spousal Support
22Retroactive support is generally awarded on an interim motion to the date of the application. This order shall therefore be effective from January 1, 2016. Adjustments before that date are issues for trial. The respondent shall of course get credit for amounts he has paid this year ($3,000 per month since March 1, 2016).
Decision
23Orders to go as set out above. If the parties need to address me on costs I will accept brief written submissions from each provided that they are received within twenty-five days. Both parties are also permitted to make a two page costs reply within five days after receiving the other’s submissions.
Mr. Justice Timothy Minnema
Date: December 20, 2016
CITATION: Paul v. Barrett, 2016 ONSC 7933
KINGSTON COURT FILE NO.: 570/15
DATE: 20161220
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Pamela Paul
Applicant
– and –
Joseph Bruce Barrett
Respondent
BEFORE: Mr. Justice Timothy Minnema
COUNSEL: Mark S. LaFrance, for the Applicant
Lesley Kendall, for the Respondent
AMENDED ENDORSEMENT
Mr. Justice Timothy Minnema
Released: December 20, 2016