Court File and Parties

COURT FILE NO.: FS 50/16 DATE: 2017-03-22 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Sandra Marie White, Applicant AND: John Arthur White, Respondent

BEFORE: Mr Justice Ramsay

COUNSEL: D. Thomas for the Applicant D. Kerr for the Respondent

HEARD: March 22, 2017 at Welland

Endorsement

[1] The Applicant moves for temporary spousal support and for interim disbursements in this Application under the Family Law Act for spousal support, equalization and partition of the matrimonial home.

[2] The parties are in their early fifties. They began living together in 1989. They married in 1995. They separated in 2009 or 2010. Neither party has sought a divorce. The date of separation will be determinative of equalization because the Application was not brought until 2016. The delay does not bar the other claims. The parties are cooperating in the sale of the matrimonial home.

Temporary Spousal Support

[3] At the time of separation the Respondent was making about $150,000 a year. The Applicant was making considerably less. They separated at the instance of the Applicant. She took some furniture and kept her dog grooming business and a small RRSP. The Respondent stayed in the matrimonial home, paying its upkeep but not paying occupation rent. The Respondent took responsibility for considerable joint debt.

[4] The Applicant brought two daughters into the marriage. The Respondent acted as a parent toward them. The parties had one son who, although disabled, is independent. He is now 26 years old and established in his own residence with a partner. He receives disability benefits.

[5] The latest figures I have for the parties’ respective annual incomes are about $9,000 for the Applicant and about $207,000 for the Respondent. The Applicant reported net income of about $22,000 in 2012, $10,000 in 2013 and $13,000 in 2014.

[6] The Applicant seeks $4,000 a month in temporary spousal support. The amount is calculated according to the parties’ respective incomes at the time of separation.

[7] The Application was brought on June 21, 2016. The Applicant’s businesses had not been doing well and the authorities told her that she had to seek support as a condition of receiving public assistance. Her new partner had just finished his matrimonial litigation with his ex-wife and retired from work. The Applicant, according to her Facebook posts, wants to buy him a Brabant mare and start a hobby/healing farm.

[8] Section 33 of the Family Law Act provides:

(8) 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 economic 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).

(9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,

(a) the dependant’s and respondent’s current assets and means; (b) the assets and means that the dependant and respondent are likely to have in the future; (c) the dependant’s capacity to contribute to his or her own support; (d) the respondent’s capacity to provide support; (e) the dependant’s and respondent’s age and physical and mental health; (f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together; (g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures; (h) any legal obligation of the respondent or dependant to provide support for another person; (i) the desirability of the dependant or respondent remaining at home to care for a child; (j) a contribution by the dependant to the realization of the respondent’s career potential; (l) if the dependant is a spouse, (i) the length of time the dependant and respondent cohabited, (ii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation, (iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents, (iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents, (v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support, (vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and (m) any other legal right of the dependant to support, other than out of public money.

(10) The obligation to provide support for a spouse exists without regard to the conduct of either spouse, but the court may in determining the amount of support have regard to a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship.

[9] There is nothing about the conduct of either spouse that would trigger the exception mentioned in s.33 (10).

[10] During the marriage there was a time when the Applicant did not work because of the birth of their son. For the most part, the Applicant was employed throughout the marriage. The Respondent put her through school for a certificate as a health care aide, but she preferred working with animals and was employed in that field and then had her own business. She will receive proceeds from the sale of the matrimonial home. She will not likely receive any equalization of net family property because she waited so long to ask for it. The Respondent has cogent evidence to support his claim that the parties separated in 2009. On the other hand, she got to keep significant property and the Respondent took on significant debt at the time of separation. The parties cooperated in keeping house and raising the children, two of whom would not have been the Respondent’s responsibility but for the marriage. It is not clear that the Applicant was economically disadvantaged by the marriage or the roles played by the parties in the marriage.

[11] The Applicant deposes that she is unable to work but she provides nothing credible to support that statement. The Applicant has filed a note from a doctor who says that he has been treating her for anxiety since 2010. In another note he says that she was unable to work from September 21, 2016 to October 5, 2016 based on what she told him, and that she was planning to return to work on January 3, 2017.

[12] The Applicant has not disclosed much about the assets of her businesses. She should be able to produce some records even if she cannot afford an accountant. Without knowing the Applicant’s income or ability to earn income it is impossible to assess her claim for spousal support.

[13] On the other hand, it is not in doubt that the Applicant made significantly less money than the Respondent throughout their long relationship as a family. She has satisfied the authorities that she needs public assistance. It seems inevitable to me that she will have some entitlement to spousal support. I have been provided an advisory guideline range of $3,430 to $4,574 a month based on the Respondent’s income in 2010 and the Applicant’s in 2014. I choose not to apply it because of the uncertainty with respect to how much the Applicant made or could make at the time of separation and since. I cannot predict what will happen at trial, but for now, focusing on the respective needs and means of the parties I think that the Applicant has made out a case for interim spousal support at a rate of $2,000 a month.

Interim Disbursement

[14] The matrimonial home will soon be sold and the Applicant will have no need for the requested disbursement.

Conclusion

[15] I order the Respondent to pay temporary spousal support to the Applicant at a rate of $2,000 a month commencing March 2, 2017. A support deduction order will issue. The motion for interim disbursement is dismissed. The parties may make written submissions to costs within 15 days.

J.A. Ramsay J. Date: 2017-03-22