Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Amina Aden, Applicant
AND
Abdirashid Mohamud, Respondent
BEFORE: Madam Justice Engelking
COUNSEL: Stephanie Smith, Counsel for the Applicant Karine Devost, Counsel for the Respondent
HEARD: February 28, 2017
ENDORSEMENT
T. ENGELKING, J.
Introduction
1This is a motion brought by the Applicant, Ms. Aden, seeking a temporary order for spousal support in the amount of $1500.00 per month, along with an order for the costs of the motion.
2The Applicant acknowledges that there is a dispute between the parties as to whether their marriage is a religious one versus a legal one, and therefore concedes that for today’s purposes, her claim for support is via the Family Law Act (R.S.O. 1990, c.F.3, as am.).
Background
3The parties married on March 14, 2007, and separated on July 8, 2015, after an eight year marriage. There is one child of the marriage, Sara Abdirahid Mohamud, born the 17th day of May, 2008. The Applicant has been Sara’ primary caregiver, both during the marriage and since separation. Sara visits with her father on alternating weekends.
4The Applicant has a diploma as a Personal Support Worker and worked full-time as same prior to the marriage making $25000 to $30000 per year. The Applicant left her employment during her pregnancy with Sara due to some medical issues, and was a stay-at-home mother to Sara, working only sporadically after her birth. The Applicant’s Line 150 income since the parties marriage has been as follows:
(a) $3,625 in 2008;
(b) $0.00 in 2009;
(c) $1200 in 2010
(d) $5,899 in 2011;
(e) $13,998 in 2012;
(f) $1893 in 2013;
(g) $989 in 2014; and
(h) 9,853 in 2015.
5Since January of 2015, the Applicant has been working part-time for the Ottawa Carleton Board of Education in an after school program. She works 18.75 hours per week, getting paid for 3. 75 hours per day at $14.87 per hour. In submissions, the Applicant’s counsel indicated that the Applicant does have an opportunity to work some hours over March Break and during the summer months at camps this year as well. The Applicant would like to take an Early Education Program at Algonquin College commencing in September of 2017 as she believes this will lead to her obtaining a fulltime position with her current employer. The Applicant’s evidence is that her current salary potential is $14,040 per year.
6The Respondent works as a driver for OC Transpo. His line 150 income over the life of the marriage is as follows:
(a) $86,374 in 2008;
(b) $50,287 in 2009;
(c) $83,094 in 2010;
(d) $87,130 in 2011;
(e) $81,902 in 2012;
(f) $84,240 in 2013;
(g) $77,740 in 2014;
(h) $66,621 in 2015.
7The Respondent took time off for paternity leave in 2015/2016, which reduced his income somewhat from previous years. It is the Applicant’s position that the Respondent can regularly make at least $80,000 per annum.
8The Applicant believes that in addition to his OC Transpo Income, the Respondent generates income by doing work for two separate travel agencies, namely Pan Express Travel and Tours and Nassar Travel. The Applicant’s evidence is that during the parties’ marriage the Respondent earned $300 to $500 in commission for every trip he booked for these agencies, based on the package selected by the customer. For the purposes of this motion, the Applicant takes the position that an additional $10,000 per annum should be imputed to the Respondent in relation to this work.
9The Respondent’s evidence is that his work with the travel agencies is voluntary, as it is very important to him to promote Hajj packages to Mecca, Saudia Arabia. He indicates that in exchange for the work he receives a free trip to Mecca himself, with all of his expenses paid by the agencies. For him, Hajj is an important religious pilgrimage and the trips are more important than compensation. Whether or not the Applicant receives income from the agencies based on the customers he brings to them, or indeed whether or not he has a direct business interest in these agencies, cannot be answered on motion. These are issues to be determined at trial.
10Having said that, it is clear that the Respondent is “compensated” for the work he does for the agencies, to the tune of one or two trips to Saudia Arabia a year. In her affidavit sworn on February 24, 2017, the Applicant included a number of promotional flyers for such trips as exhibits. The flyer for 2010 at Exhibit “B” of the affidavit includes a price for the excursion of $5450, while that at Exhibit “C” for 2011 appears to include a price of $6500 to $6700 for the trip. While later flyers do not include a price, it is only logical to think that they will have continued to naturally increase every year. Given that the Respondent may take up to two trips per year, it is not at all unreasonable to conclude that the value of those is at least $10,000. That being the case, and without deciding the issue of whether the Respondent is otherwise paid by the agencies for his work (by earning a commission on trips), I am prepared to impute an additional $10000 per year to his annual income.
11The Applicant submits that she is entitled to both compensatory and needs based spousal support from the Respondent. Her evidence is that the Respondent immediately ceased paying the bills upon the demise of the marriage. She indicates that she has suffered a disadvantage by the breakdown of the marriage, and has resulting debts totalling $8000.00, which include a $3000 overdraft with TD, a $3000 credit card debt, and a $2000 debt to Gloucester Housing. The Applicant states that she has done her best to reduce and manage her expenses accordingly. The Applicant got her rent reduced to be geared to income. She took Sara out of Arabic lessons and skiing as she could no longer afford them. Her, and Sara’s, standard of living has, thus, been significantly reduced, and she is still struggling to pay her bills.
12The Applicant relies on section 33 of the Family Law Act. Subsection (8) of that Act provides that an order for the support of a spouse should:
(a) Recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;
(b) Share the burden of child support equitably;
(c) Make fair provision to assist the spouse to become able to contribute to his or her own support; and,
(d) Relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).
13In the case of Maelbrancke v. Proctor, 2016 ONSC 1788, Harper J. reviewed the law with respect to temporary spousal support. At paragraph 11, Harper J. referred to the case of Samis v. Samis, ONCJ 273, which in turn referred to that of Lowalski v. Grant, 2007 MBQB 235, 219 Man.R. (2d) 260, 43 R.L.F. (6th 344, [2007] M. J. no. 386, 2007 CarswellMan 422 (Man.Q.B.), to set out the following principles in temporary spousal support:
(1) Interim support is to provide income for dependent spouses from the time the proceedings are instituted until trial.
(2) 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.
(3) 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.
(4) 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.
Entitlement
14I am directed by the law that interim support should only be ordered where a prima facie case for entitlement has been set out. I am convinced that this is such a case. Indeed, the Respondent admitted that the Applicant would be entitled to spousal support on the basis of need, but argued that the compensatory claim was one better suited to trial. I do not disagree.
Quantum
15The issue then becomes one of quantum. The Applicant states that because the Respondent’s 2015 and 2016 incomes were affected by his paternity leave that overlapped both years, his more accurate income is that of 2014, or $77,740. The Respondent argues that his base salary is $71,000 and while he has some opportunities to work overtime, with his new child perhaps not as many as previously. He states that a reasonable amount upon which to set spousal support on a temporary basis is $75,000.00. I am prepared to accept that latter amount, adding, however, the additional $10000 he receives in compensation from the travel agents for whom he finds clients.
16The Respondent takes the position that the Applicant should be imputed an income of $25,000 based on her pre-marriage earning capacity, and her responsibility to become self-sufficient. The Applicant indicates that she had several years out of the job market as a stay-at-home mother, and that she is not currently capable of being self-sustaining, but that her objective of gaining her ECE diploma is for that purpose. In all of the circumstances, I do not believe that it is realistic to imput an income of $25000 to the Applicant at the present time.
Order
17I, therefore, order that commencing March 1, 2017, the Respondent shall pay to the Applicant $1100 per month representing a midrange of spousal support on an income of $85000 for the Respondent and $14000 for the Applicant, and taking into account that the Respondent is currently paying $609.00 per month in child support.
18This order is without prejudice to the Applicant to claim and the Respondent to defend retroactive spousal support to the date of separation.
19Based on Rule 24 of the Family Law Rules, O. Reg. 114/99 (the “Family Law Rules”), the Respondent’s overall success on the motion, and having regard to the factors outlined in subrule (11), I order that the Respondent shall pay to the Applicant costs on the motion in the amount of $1500, to be paid within 30 days of today.
Madam Justice T. Engelking
Date: 2017/03/09
CITATION: Aden v. Mohamud, 2017 ONSC 1629
COURT FILE NO.: FC-15-2819
DATE: 2017/03/09
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Amina Aden, Applicant
AND
Abdirashid Mohamud, Respondent
BEFORE: Madam Justice Engelking
COUNSEL: Stephanie Smith, Counsel for the Applicant Karine Devost, Counsel for the Respondent
HEARD: February 28, 2017
ENDORSEMENT
Madam Justice T. Engelking
Released: 2017/03/09