CITATION: Lamb v. Watt, 2017 ONSC 5838

BRACEBRIDGE COURT FILE NO.: FC-16-230-00

DATE: 20170929

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: TREVOR BARRINGTON LAMB, Applicant

AND:

HEIDI LEE ALISON WATT, Respondent

BEFORE: THE HON. MR. JUSTICE J.P.L. McDERMOT

COUNSEL: M. Malone, for the Applicant

T. Dart, for the Respondent

HEARD: September 14, 2017

ENDORSEMENT

Introduction

[1] In this motion, the applicant, Mr. Lamb seeks temporary spousal support. Ms. Watt asks for temporary child support as well as primary residence of the parties’ three children. Although she moves for other relief, much of this was abandoned as the motion was argued.

[2] Mr. Lamb and Ms. Watt began living together in 1997. They married in 2000 and separated in 2013.

[3] After marriage, they settled in Durham region. In 2007 they moved to Bracebridge. They had a plan. Ms. Watt had experience in office administration and management; she planned to work in management in one of the numerous resorts in Muskoka. Mr. Lamb obtained his BA from the University of Western Ontario and eventually obtained his Masters of Education in Buffalo. Mr. Lamb began work at the Trillium Lakelands Board of Education as a supply teacher in 2009.

[4] The parties have three children, Emily, Julia and Catherine, who are 16, 12 and 10 years old. Although there is some conflict as to who these children resided immediately after the parties separated in January, 2013, it is common ground that at least since April, 2013 the children have lived in the care of the respondent wife Heidi Watt.

[5] Mr. Lamb began these proceedings in late 2016. Prior to that, there were extensive negotiations between the parties which were unsuccessful.

[6] The parties have been unable to settle their differences partly because of their respective financial situations, both before and after separation. Since coming to Muskoka, Ms. Watt has been extremely successful in her career. She worked in administrative positions until several years prior to the separation when she began managing a resort for Touchstone Resorts. In 2013, the year of separation, she was hired as general manager for a resort at Lantern Bay owned by Great Blue Resorts. In 2013 her income exceeded $100,000, and since then her income has been in the range of about $88,000 per annum. In the year prior to separation, when she was working for Touchstone Resorts, her income was $71,000 per year.

[7] And while Ms. Watt has achieved career success, Mr. Lamb has not. After the parties came to Muskoka, he obtained his Masters of Education from a university in Buffalo, N.Y. Since then, he has struggled in the teaching profession in Muskoka. He worked as a supply teacher and has had one long-term occasional posting. He has been unable to apply for a contract position or full-time work because he needs at least two long-term occasional postings prior to applying for a contract position; he says that he has been unable to obtain another long-term occasional position because of extreme competition both for those positions as well as for getting onto the list for long-term occasional positions. He has made on average $35,000 more or less per annum since separation. He has paid no child support to the respondent since separation because he says he cannot afford to and because the respondent owes him spousal support. He has had to cash in portions of his Registered Retirement Savings Plans to make ends meet.

[8] For the reasons set out below I have determined the following:

a. Mr. Lamb will pay ongoing child support in the amount of $748 per month as well as 37.3% of the s. 7 expenses incurred by the children;

b. Ms. Watt shall pay temporary spousal support in the amount of $450 per month to Mr. Lamb;

c. All support shall commence October 1, 2017;

d. The respondent’s request that Mr. Lamb pay the legal costs of Mr. Winter is abandoned without prejudice.

e. On consent and on a temporary basis, the children shall have their primary residence with Ms. Watt.

Analysis

[9] The only major issue involves child and spousal support. As the children live with Ms. Watt, Mr. Lamb owes, of course, child support under the Child Support Guidelines.[^1] Ms. Watt also claims a proportionate portion of expenses under s.7 of the Guidelines including expenses for sports activities as well as medical and orthodontic expenses.

[10] Mr. Lamb claims spousal support. But for that claim for spousal support, I suspect that this matter would not have been argued.

Positions of the Parties

[11] Mr. Lamb acknowledged his obligation to pay child support. He suggested through his counsel that many of the expenses including the expenses for the children’s sports activities were unaffordable at his income level and he should not be forced to pay a share of those expenses.

[12] Mr. Lamb claims spousal support. He acknowledges that, for the purposes of this motion, his claim is a non-compensatory one.

[13] Mr. Lamb says that he had done his best to obtain to maintain employment and maximize his income, both before separation and since the parties separated. He noted that he held down several jobs at a time including landscaping work during the summer as well as his work as a supply teacher. He says that he needs spousal support to relieve him from hardship which has arisen from the sale of the matrimonial home, and which will also arise from him paying child support without addressing this hardship.

[14] Ms. Watt does not wish to pay spousal support and believes that Mr. Lamb has no entitlement to support. Although Mr. Dart acknowledged the discrepancy between the parties’ income he argues that this in itself did not create entitlement. He suggested that any hardship suffered by Mr. Lamb did not arise from the breakdown of the marriage but from Mr. Lamb’s own failure to seek and obtain reasonable employment according to his abilities and training. He suggested there was no entitlement for spousal support and the claim for interim spousal support should therefore be dismissed.

Discussion

[15] Spousal support is governed by s. 15.2 of the Divorce Act.[^2] Under s. 15.2(4) the court must take into account the “condition, means, needs and other circumstances of each spouse” taking into account the following factors:

(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.

[16] In determining entitlement the court must take into account the objectives of a spousal support order as set out in s. 15.2(6) which reads as follows:

An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses 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.

[17] When making an interim order, the test is reasonableness: section 15.2(2) of the Divorce Act states:

Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1).

[18] Both parties acknowledged that without a finding of entitlement, even in the case of an interim order, there can be no order for spousal support: Cassidy v. McNeil, 2010 ONCA 218, [2010] O.J. No. 1158 (Ont. C.A.).

[19] As set out by the Supreme Court of Canada in Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] S.C.J. No. 14, there are three bases for entitlement to spousal support being compensatory, contractual or non-compensatory support. As noted above, applicant’s counsel acknowledged that the only relevant grounds for entitlement to support for the purposes of this motion are non-compensatory grounds arising from economic advantages or disadvantages to the spouses arising from the breakdown of the marriage (Divorce Act, s. 15.2(6)(a) and (c)).

Entitlement to Spousal Support

[20] This is a motion for temporary spousal support. The case law is clear that in a motion for temporary spousal support, the claimant does not have to prove entitlement on the balance of probabilities as he or she would have to at trial. He or she need only show a prima facie case for entitlement: see Samis (Guardian of) v. Samis, 2011 ONCJ 273, [2011] O.J. No. 2381 (Ont. C.J.) at para. 44; Carnegie v. Carnegie, 2008 MBQB 249, 60 R.F.L. (6th) 192 (Man. Q.B.).

[21] Another way to put it is as stated by Sherr J. in Samis that the applicant must prove a “triable case” and that the “merits of the case in its entirety must await a final hearing.” [para. 43].

[22] Prima facie is defined in Black’s Law Dictionary (9th ed.) as being “at first sight; on first appearance but subject to further evidence or information” or “sufficient to establish a fact or raise a presumption unless disproved or rebutted”.

[23] Other cases have linked the test for interim spousal support as being related to the chance of success at trial. MacKinnon J. stated in Belcourt v. Chartrand, 2006 CanLII 11925 (ON SC), [2006] O.J. No. 1500 [at para. 11] as follows:

Ultimately however I am convinced that an order of interim spousal support should be linked to the likelihood of success at trial. There should be some reasonably sound prospect of success before interim spousal support should be ordered. The few cases cited where interim spousal support was ordered following delay involve analyses that suggest a reasonable prospect of success at trial: see for example Whey v. Haines, [2000] O.J. No. 3608 (Ont. S.C.J.) and Lakhani v. Lakhani (2003), 2003 CanLII 2161 (ON SC), 43 R.F.L. 5th 125 (Ont. S.C.J.). In both these cases it is clear that the judges were persuaded of the merit of the claims.

[24] Mr. Dart relies upon this statement to suggest that I cannot find entitlement at this point in time and the parties should await a decision based upon the evidence at trial. He says that his client has provided detailed evidence as to Mr. Lamb’s abusive behaviour during the marriage and as to his failure to maximize his income for support purposes. Mr. Dart says that because of the credibility issues and the differences on the evidence as provided by the parties, the issue of entitlement should be reserved to the trial judge and cannot be decided on an interim motion.

[25] It is correct that Ms. Watt has filed a very detailed affidavit and some of her allegations remain unanswered. Notwithstanding this, I disagree with Mr. Dart. He seems to be saying that if there is a triable issue raised by the putative support payor, the matter should proceed to trial rather than being decided on a motion. That is similar to the criteria to decide a motion for summary judgment. A motion for temporary spousal support is not the same, however, as a motion for summary judgment. In the latter case, where the court finds a triable issue, a trial is likely necessary. Unlike summary judgment, an order for temporary spousal support is not a final decision but a temporary order intended to address short term hardship which has arisen from the breakdown of the marriage as discussed above. To suggest that the motion be dismissed by raising a triable issue results in too great a burden on the recipient, as the issue of entitlement is often disputed by the support payor and there is often conflicting evidence on the issue of entitlement. Were Mr. Dart correct, many recipients would be deprived of much needed support, as it would be necessary to wait for trial to obtain financial relief.

[26] I therefore again return to the definition of prima facie as noted above. It is “at first sight” or “sufficient to establish a fact or raise a presumption unless disproved or rebutted”. The court must take the applicant’s evidence at face value, subject to it being disproven at trial. I agree with MacKinnon J. when she says in Belcourt that an evidently meritless claim should not establish entitlement. However the fact that the respondent spouse has raised contested evidence which may go to disprove the claim for entitlement does not mean that the claim for spousal support should be delayed or dismissed; to do so would only serve to allow a support payor to avoid paying support pending trial while forcing the recipient to live in reduced circumstances.

[27] Does this applicant have a prima facie non-compensatory entitlement to spousal support? It is clear that income discrepancy alone does not create a non-compensatory claim: see Fisher v. Fisher, 2009 ADQB 85 and Calvert v. Stewart, 2009 CarswellOnt 671 (C.J.). There must be some evidence that the disadvantage to the recipient spouse must arise from the breakdown of the marriage.

[28] In determining this, I must bear in mind the statement by the Supreme Court of Canada in Bracklow that non-compensatory support may arise from the “mere fact that a person who formally enjoyed inter-spousal entitlement to support now finds herself or himself without it.” [para. 41]. In the present case, in the year prior to separation, the respondent’s income was $71,617 while the applicant earned less than half of that, with an income of $33,983. The parties enjoyed a certain lifestyle based upon the pooling of resources and certainly the applicant found himself at an economic disadvantage after the breakdown of the marriage. He remained in the matrimonial home (and for some time outside of that home insofar as he spent significant periods of time at his girlfriend’s residence); however the parties recognized that the applicant could not alone pay all of the expenses of the home as they split the cost of the mortgage, taxes and insurance until it was sold. In a sense, assuming the applicant continued to live in the home, the respondent was paying some support to him by paying part of the matrimonial home expenses.

[29] The reason that this motion was brought was the change in circumstances insofar as the matrimonial home has been sold as of August, 2017. At present the applicant lives in a two bedroom apartment, hardly appropriate for exercising access to the two children who wish to continue having access to him. He no longer receives assistance from the applicant as the home is now sold. In contrast, the respondent lives in a home provided to her by the resort which she manages; she lives with her partner whose income is undisclosed as being “not relevant”[^3] but which she later acknowledged in her affidavit as being $72,000 per year.

[30] The respondent says that the applicant continues to live with his girlfriend and that again this being a non-compensatory claim, this fact should be determined at trial prior to any ordering of support. The applicant claims that he and his girlfriend are no longer together. Although the respondent states in her financial statement that her partner’s income is “not relevant”, she does acknowledge that he earns $72,000 per year. The fact that his income is in this range does not affect the amount of support payable by the applicant; however it does reflect on the means and needs of the parties. In any event, it does not lie in the respondent’s mouth to criticise the applicant for allegedly living with his girlfriend when she may enjoy a similar benefit from pooling her income with her present partner.

[31] Mr. Dart suggests that the applicant’s delay in making a claim for spousal support means that the applicant’s needs are not related to the breakdown of the marriage. He relies upon the Belcourt case where a support claimant sought support after 11 ½ years after separation. That case is entirely distinguishable from the present case; in Belcourt the wife separated from the husband 11 ½ years prior to the motion and had gone through an intervening and lengthy second relationship which had also broken down. Because of this, McKinnon J. found that the needs of the support claimant were not related to the breakdown of the marriage but from intervening post-separation circumstances. This is not the case in the present case where the applicant’s present needs are related to the sale of the matrimonial home, a circumstance which directly occurred as a result of the breakdown of the marriage.

[32] I note as well that one of the cases cited in Belcourt, Whey v. Haines,[^4] involved successful temporary spousal support order made nine years after separation. The Lakhani case,[^5] also cited in Belcourt, similarly involved a significant delay after the date of separation and also resulted in a number of years of retroactive spousal support being ordered at the motion. Delay alone does not mean that the disadvantage did not result from the breakdown of the marriage.

[33] Finally Mr. Dart suggests that income should be imputed to the applicant as his job search efforts were inadequate. Mr. Dart suggests that Mr. Lamb could have easily obtained full-time employment at this time and the fact that he did not is a matter of choice.

[34] The issue of imputation of the income to the applicant is an issue for trial. There are serious credibility issues as to whether or not the applicant has maximized his income. An interim motion is not the place to impute income or to determine issues of intentional underemployment; the place to address this is at trial. Again, the evidence on income must be taken at face value with contested evidence on imputation of income to be left to the trial judge.

[35] As well, I note that the applicant works several jobs in landscaping and has also been forced to cash in portions of his RRSPs to meet his needs. Those RRSPs will eventually be equalized with the respondent assuming they were in place on the date of separation. Had there been employment opportunities available to the applicant beyond his present ability to earn income I would have thought that he would have made the most of those opportunities rather than cash in RRSPs which will eventually have to be shared with the respondent.

[36] Based upon the above I find that the applicant has made out a prima facie case that he has suffered a disadvantage resulting from the breakdown of the marriage. That being the case, I find that the applicant has made out non-compensatory entitlement for the purpose of interim spousal support.

Quantum of Support

[37] There was a significant argument between the parties as to the incomes to use for quantum of spousal support. This arises from post-separation increases in income enjoyed by the respondent. In 2012, the respondent was earning $71,000 working for Touchstone Resort. In 2013 she obtained a significantly better position at the Lantern Bay Resort. That new position provided her with income of $88,000 per year and in the year she obtained that position (the year of separation) her income was $106,000 due to overlapping work commitments.

[38] Mr. Dart pointed out that the income for spousal support purposes in a non-compensatory claim should be the income of the payor from the date of separation: see Thompson v. Thompson, 2013 ONSC 5500 at para. 103.

[39] However in Fisher v. Fisher, 2008 ONCA 11, 2008 CarswellOnt 43 (C.A.), the Court of Appeal in dealing with a largely “non-compensatory claim” of the claimant, used the payor’s “increasing income in the three years prior to separation as well as his substantially increased income in the year of separation, even though it was largely received post-separation” [para. 89].

[40] Mr. Dart urges me to use the income of the respondent for 2012 being $71,000. He also says that I should ignore the respondent’s income of $106,000 earned in 2013, the year of separation (the parties separated in January of that year) because this is was an outlier and resulted from working for two resorts for a period of time due to overlapping job responsibilities.

[41] I agree that 2013 was an “outlier” year and that, even today, is not representative of the respondent’s income. However, it is unclear from the evidence as to exactly when the respondent obtained her new employment wherein she earned significantly more than she earned prior to separation. As well, it would seem that her increased income is part of the continuum which took place over her years of employment in Muskoka District which resulted in a steadily increasing income throughout. Finally, in a non-compensatory claim the Ontario Court of Appeal used the year of separation even though the increase in income took place largely post-separation as in the present case.

[42] Therefore for the purposes of support I find the respondent’s income to $80,000 per year which is a balance between the income earned by the respondent prior to separation and her regular income earned post-separation.

[43] The applicant’s income for the pre-separation year was $31,000. His income has increased as well but he has used portions of his RRSPs which he says has increased his income to $45,000 per annum last financial statement. I decline to take into account the RRSP withdrawals as the RRSPs that Mr. Lamb had on the date of separation will be equalized with Ms. Watt and accordingly it is somewhat of a “double dip” that she be entitled to take advantage of his increases in income because of his RRSPs while equalizing the asset.

[44] According to Mr. Lamb’s last financial statement sworn April 19, 2017, his income would be $38,916 per annum excluding the RRSP income and I find this to be Mr. Lamb’s annual income for spousal support purposes.

[45] Using these figures, I prepared a SSAG calculation which is attached as a schedule. I have used 14 years of cohabitation as the length this marriage based upon the acknowledgement by the respondent that the parties began cohabiting in 1998. Based upon this the range of support is between $405 per month and $540 per month. Mr. Lamb should be paying child support of $748 per month for the three children (base child support).

[46] Based upon this being a non-compensatory claim, the SSAGs suggest that spousal support should be in the mid to lower range of support. Accordingly I find that Ms. Watt is liable to pay to spousal support in the amount of $450 per month commencing October 1, 2017.

[47] I am not willing to make a retroactive award at this point in time. That is an issue for trial especially considering the amounts contributed by the parties to the costs of the matrimonial home. The fact that Ms. Watt paid half of the mortgage and taxes and insurance goes to the issue of whether she assisting in supporting Mr. Lamb who claims to have lived in the home during that time.

[48] Mr. Lamb shall pay child support in the amount of $748 per month based upon a finding that his income is $38,916 per annum. Again I decline to include in his income the RRSP income as this appears to only been included in Mr. Lamb’s income in his last financial statement. There is no evidence of RRSP income for previous years and this appears to be a non-recurring income payment.

[49] Based upon the SSAG calculation, Mr. Lamb should be paying 37.3 percent of the children’s extraordinary expenses. I include in these expenses the sports costs for the children. These are extraordinary extracurricular expenses and the children excel in sports. It goes to the children’s benefit and there is no issue as to why Mr. Lamb cannot contribute to those expenses. He has not made a hardship claim.

[50] There were several numbers given by the applicant for the costs of the children’s extracurricular and medical expenses. In her financial statement sworn January 20, 2017, she says it costs her $1,953.64 per month or $23,443.68. In her SSAG calculations attached to her affidavit,[^6] she seems to be saying that the section 7 expenses fluctuated between a low of $4,554 in 2014 to a high of $8,566 in 2015. I cannot calculate what the expenses of the children are at present.

[51] The sports expenses of the children appear to be high, and the children compete in soccer on a competitive level. Julia competes in gymnastics, again on a competitive level. These girls are extremely sports oriented and the activities cited in the respondent’s affidavit appear to fit within the definition of “extraordinary” extracurricular expenses under s. 7(1)(f) of the Guidelines. Accordingly, Mr. Lamb shall contribute 37.3 percent to:

a. The children’s rep soccer expenses;

b. Julia’s competitive gymnastics costs;

c. The children’s medical expenses including orthodontic expenses.

[52] Mr. Dart says that his client iss entitled to a substantial amount of retroactive child support. He acknowledged that he was not pursuing that claim at this motion.

[53] He also acknowledged that he was not pursuing the claim for costs in respect of Mr. Winter’s fees without prejudice to his client’s right to claim these costs after trial.

Order

[54] There shall therefore be a temporary order to go as follows:

a. On consent, the children shall have their primary residence with the respondent;

b. The applicant shall pay the respondent temporary child support in the amount of $748 per month for the children based upon his income of $38,916 per annum commencing October 1, 2017;

c. The applicant shall pay the respondent 37.3% of the children’s section 7 expenses including the following:

1. The children’s rep soccer expenses;

2. Julia’s competitive gymnastics costs;

3. The children’s medical expenses including orthodontic expenses.

d. The respondent shall pay the applicant temporary spousal support in the amount of $450 per month commencing October 1, 2017;

e. The claim by the respondent for a contribution to the costs of the private children’s lawyer and for retroactive child support is dismissed without prejudice;

f. Support deduction order to issue.

[55] The parties may make written submissions for costs, the applicant first and then the respondent, on a ten day turnaround. Costs submissions to be no more than three pages in length not including offers to settle or bills of costs.

McDERMOT J.

Date: September 29, 2017

[^1]: SOR 175/97 [^2]: R.S.C 1985, c. 3 (2nd Supp.) [^3]: See Financial Statement of Respondent p. 4 at Tab 8 of the Continuing Record. [^4]: [2000] O.J. No. 3608 (S.C.J.) [^5]: 2003 CanLII 2161 (ON SC), 43 R.F.L. 5th 125 (Ont. S.C.J.) [^6]: Ex. 4 to the respondent’s affidavit sworn August 31, 2017.