COURT FILE NO.: FS-17-17286
DATE: 20180514
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Melissa Anne Wilkins, Applicant
AND:
Kenneth Charles Wilkins, Respondent
BEFORE: Howard J.
COUNSEL: Zane R. Handysides, for the Applicant
J. Joel Wright, for the Respondent
HEARD: October 13, 2017
ENDORSEMENT
Overview
[1] There are two motions before the court. The applicant wife brought a motion (Tab 10 of the Continuing Record) seeking, in the main, an interim order that the respondent husband shall pay spousal support to the applicant, commencing January 1, 2016. The applicant wife also sought interim orders regarding designations of life insurance and health benefits, and the like, which counsel confirmed at the hearing of the motions was proceeding on consent.
[2] The respondent husband has also brought a motion (Tab 13) seeking an interim order that the applicant wife shall pay child support to the respondent for support of their youngest child, commencing January 1, 2016.
[3] The application was commenced on January 24, 2017. It proceeded to a case conference on July 11, 2017. The motions in question were originally brought in August and September 2017 and were then adjourned three times until they came before me on October 13, 2017.
[4] The parties have each filed an originating affidavit in support of their respective motions, together with a reply affidavit to the opposite party’s responding affidavit. However, there has been no cross-examinations on any of the affidavits.
[5] The parties are agreed that the relief sought in paras. 2, 3, and 4 of the applicant’s notice of motion is appropriate, with some modification, and those orders may proceed on consent. Those requests deal with designations on the respondent husband’s life insurance policy and health and medical benefits and the like. The consent order is reflected in the language of my conclusion, below.
[6] It is common ground that both parties entered into a consumer proposal given that their respective debts exceeded their assets as of the date of separation. Both of the consumer proposals have now been paid in full, and the associated debt has been retired. Accordingly, there is no issue regarding division of property in the instant case.
Factual Background
Overview
[7] The parties agree on the date that they were married, that there are three children of the marriage, and that the applicant is currently “involved in a romantic relationship with [her] present employer,”[^1] who is a lawyer practising in Windsor (whom I will call “P.C.” for present purposes).
[8] Beyond those basics, the parties disagree, to varying degrees, on most of the remaining factual issues. I do not propose to enumerate all of the areas of the parties’ disagreement, much less attempt to determine them at this interim stage; however, I have attempted to highlight, below, those areas of disagreement that are material for present purposes.
[9] The applicant wife and the respondent husband were married on July 15, 1995. There are three children of the marriage, namely, Michael Joseph Wilkins, born December 4, 1991, Kevin Charles Wilkins, born October 9, 1995, and Dallas Kenneth Wilkins, born October 12, 1998. As such, at present, the children range in age from 26 to 19 years.
[10] The parties disagree on the date of their separation. The applicant wife says that the parties separated on July 31, 2015, and that they lived separate and apart in the matrimonial home until December 2015, when she moved out of the matrimonial home.
[11] The respondent husband maintains that they separated on or about September 1, 2015, but states, in his answer, that the parties “continued to reside in the matrimonial home until December 7, 2015, when the [applicant] moved out.”[^2]
[12] In either case, it is clear that this was a marriage of at least 20 years’ duration.
[13] The parties agree that the two older sons, Michael and Kevin, reside independently and are each employed on a full-time basis.
[14] The parties also agree that the youngest son, Dallas, has resided with the respondent father since separation. Dallas attends Conestoga College on an apprenticeship program to become a diesel mechanic.
[15] The applicant wife alleges that the respondent husband has completely alienated her from the lives of their children since the parents’ separation. She notes that their eldest son, Michael, was married in May 2017, and she was not invited to the wedding.
[16] The respondent denies the claim of parental alienation and states that the only reason the applicant left the matrimonial home “was to be with her boyfriend in Windsor.” He states that in August 2015, she had a meeting with her “boyfriend,” P.C., to discuss a legal matter. The respondent husband states that they “met after hours and he provided her with a complimentary hotel room for the night.” The respondent denies that he is responsible for the breakdown of the applicant’s relationship with their boys; he states that they “are old enough to form their own opinion about the [applicant].”[^3]
The parties’ roles during the marriage
[17] The parties disagree on the role(s) assumed by the applicant wife during the marriage. The applicant wife alleges that, during the marriage, she was primarily responsible for the care of the children and the maintenance of the home. She maintains that she took time out of the work-force to care for the children, and when she returned to the work-force, it was primarily on a part-time basis. Further, the applicant wife alleges that the respondent husband was the primary financial provider for the family during the marriage.
[18] While the respondent husband does not directly contest the latter point, he does dispute the applicant’s allegations that she was the primary care-giver for the children and hardly worked during the relationship; he maintains that responsibility for caring for their children was a joint responsibility. She maintains that he was not an equal contributor to the day-to-day care of the children.[^4]
The applicant’s employment history and income
[19] The parties disagree on the particulars of the applicant’s employment history. In her original affidavit, the applicant states that she took time out of the work-force to care for the children, and that when she returned to the work-force, it was primarily on a part-time basis. The respondent maintains that the applicant worked at most times during the relationship. Put generally, he alleges that the applicant was gainfully employed in good-paying positions, which she left for various personal reasons.
[20] The applicant’s employment history was not comprehensively detailed in her original affidavit. Indeed, her reply affidavit provides considerably greater particulars than does her original affidavit. Considering, collectively, the information contained in the parties’ four affidavits (each delivered an original and reply affidavit), it appears that:
a. over the period 1997 to 2008, the applicant obtained occasional part-time work from time to time as a waitress or in retail sales.[^5] As indicated above, the parties’ second son was born in 1995, and Dallas was born in 1998;
b. from 2008 to 2013, the applicant was employed as the Cosmetics Manager at Shoppers Drug Mart in Kincardine, Ontario.[^6] The applicant did not reference this position in her original affidavit. The respondent states that the applicant earned approximately $18 per hour in that position and worked a minimum of 40 hours per week.[^7] The applicant did not contest these statements in her reply affidavit. The respondent also states the applicant made a very good wage there “plus commissions on sales.”[^8]
c. the parties dispute the reasons why the applicant left the Cosmetic Managers position at Shoppers Drug Mart in Kincardine. The applicant says she lost the position when the family moved to Kitchener, Ontario, in order to facilitate the respondent taking up employment there.[^9] The respondent denies that the applicant lost the position because the family moved to Kitchener; he says the applicant quit her job in Kincardine after the store changed ownership, that she did not like the new owner, and that she took a cash payout to leave.[^10]
d. the date that the parties moved from Kincardine to Kitchener is not in evidence;
e. the applicant worked two jobs while in Kitchener, being employed part-time with both Shoppers Drug Mart and the Liquor Control Board of Ontario (“LCBO”).[^11] As a part-time employee with the LCBO, the applicant was working an average of 25 hours per week for three years.[^12] The evidence of the respondent is consistent, in that, the respondent states that the applicant worked at the LCBO in Kitchener from November 2013, for a minimum of 25 hours per week, at a rate of approximately $15 per hour.[^13]
f. the applicant states that she was given more hours at the LCBO than at Shoppers Drug Mart, and so “the decision was made within the family that I would quit my second part-time job with Shoppers Drug Mart.”[^14] The respondent did not contest these assertions in his reply affidavit.
g. the applicant states that, in July 2015, she was off work (for a period of time that is not disclosed) because she underwent surgery for an endometrial ablation due to fibroid tumours in her ovaries. She states there were complications from this surgery, resulting in a second surgery in February 2016.[^15] The respondent did not contest these assertions directly in his reply affidavit. That said, the applicant provided no particulars as to how much time off work she was required to take or how much income she lost because of these surgeries.
h. the applicant also states that, while recovering from her initial surgery in July 2015, she suffered a serious personal injury on or about August 5, 2015 while she was shopping at a store in Windsor, when a large steel beam fell from the ceiling of the store, striking her upraised arm, as a result of which the applicant allegedly suffered frayed tendons in her left shoulder and inflammation of the bursa between the joints.[^16] The applicant commenced an action against the store for her alleged personal injuries. The lawyer acting for the applicant in respect of that litigation is her partner, P.C.
i. the applicant alleges that the injury she sustained at the store has prohibited her from lifting bottles and fulfilling her employment duties at the LCBO, that she attempted to return to work on modified duties, but that her employer refused to accommodate her limitations.[^17] The applicant asserts, on the one hand, that her injuries have “made continued employment with the LCBO impossible”[^18] but, on the other hand, that she remains “technically still an employee of the LCBO.”[^19]
j. the respondent states that the applicant quit her employment with the LCBO in Kitchener in order to move to Windsor to live with her partner, P.C., that she had initially arranged a transfer to a Windsor LCBO location, but that she quit her position with the LCBO before moving to Windsor.[^20] The applicant denies the respondent’s allegations, states that she attempted to return to work at an LCBO in Windsor, that she worked a couple of shifts in December 2015, “but was unable to fulfill the duties and was not being accommodated.”[^21]
k. the precise date that the applicant moved to Windsor to live with P.C. is not in evidence. That said, I note, for what it is worth, that the applicant alleges that the parties separated on July 31, 2015, and that the injury in the store in Windsor occurred on August 5, 2015. The evidence of the applicant does not explain why the applicant, originally from Kincardine, and then living in Kitchener, should otherwise find herself in a store in Windsor in August 2015.
l. the applicant further states that she was recently diagnosed with Graves’ disease, an auto-immune condition that affects the applicant’s thyroid and is said to have caused her to suffer chronic fatigue, muscle pain, insomnia, and lack of focus and concentration. The applicant alleges the condition exacerbates the pain in her left shoulder, “making regular employment impossible.”[^22] However, I note that there is no medical evidence before the court that directly confirms the diagnosis of Graves’ disease, the alleged sequelae, or the conclusion that the condition has made “regular employment impossible” for the applicant.
m. the applicant states that she has not returned to paid employment since December 2015.[^23]
n. the applicant admits that she has lived with P.C. since December 2015.[^24]
o. the applicant asserts that “the only work [she] has been able to secure is part-time employment as a legal assistant” with her employer and partner, P.C.[^25] The applicant alleges that she receives an annual income of approximately $10,000 from her employment with P.C., that she does not receive a salary or paycheque from P.C., but that “he pays expenses on my behalf.”[^26] The applicant describes this as “intermittent part-time work which I provide to my partner, [P.C.]”.[^27]
p. the applicant maintains that she had no choice but to move out of the matrimonial home in Kitchener, and that she had “no money, no job, and was in declining health. If [P.C.] had not allowed me to live with him, I would likely have been homeless.”[^28]
q. the evidence of the applicant is that she is in the process of applying for disability pension benefits under Ontario Disability Support Program but has not yet been approved for ODSP benefits.
[21] The applicant has failed to make complete financial disclosure for the taxation years 2015 and 2016. The last notice of assessment that was filed by the applicant was for the taxation year 2014. The 2014 notice of assessment indicates that the applicant’s line 150 income was $22,522.
[22] At the hearing of the motions before me, counsel for the applicant handed up, on consent, a copy of the applicant’s income tax return for the 2015 taxation year, which had been served on respondent’s counsel, and which indicates that the applicant’s line 150 income was $15,487.[^29] However, I was advised that the applicant had not yet filed this return with the authorities and, thus, had not received a notice of assessment for the 2015 taxation year. In the same vein, I was advised that the applicant had not yet filed her income tax return for the 2016 taxation year, although it was expected to be “a nil return,” and had not received a notice of assessment for that year either.
[23] It was not explained why the applicant had not filed her tax returns for the years in question.
The respondent’s employment history and income
[24] Turning to the respondent’s income, the parties do not agree on the income that should be used for spousal support purposes. It is common ground that the respondent is employed on a full-time basis with Toyota Canada at its production plant in Cambridge, Ontario. The respondent’s notice of assessment for the 2016 taxation year shows a line 150 income of $70,269. His 2015 notice of assessment shows a line 150 income of $70,607. In 2014, it was $68,303. The applicant relies on the respondent’s current income figures.
[25] However, the respondent points out that in the past three years, he worked significant overtime, including some Saturday hours and long hours during his Monday to Friday work-week. The respondent says that, as of the summer 2017, over-time work will likely not be available to him in the future because his employer implemented a new work schedule that provides for fewer hours and no Saturday work “as a result of cutbacks due to the fact that our plant is losing the production contract for the Corolla, which will be made in Mexico. As a result, production is winding down as they switch to the new model.”[^30]
[26] As such, the evidence of the respondent is that, as of August 2017, he has not worked Saturdays and his hours have been cut dramatically. The applicant does not directly challenge this statement.
[27] The respondent states that, based on his employer’s new work-schedule, he expects to work 40 hours per week for the foreseeable future, which, based on his hourly wage of $25.72, would result in an annual income of approximately $53,500.[^31]
[28] That said, the respondent does acknowledge that even after August 2017, he has been fortunate to obtain some overtime hours, both on the Corolla production line and on other production lines. The respondent maintains that overtime hours will be increasingly unavailable for him, as production of the Corolla is being discontinued, and overtime on the other production lines is not guaranteed, as the workers who normally work on those production lines have priority over any available overtime hours.[^32]
[29] The respondent provided copies of his bi-weekly pay statements for the pay periods ending August 26, 2017, September 9, 2017, and September 23, 2017. The September 23rd statement shows a year-to-date gross income of $51, 685.74, representing total gross income paid over 19 of 26 pay periods. There is some merit in Mr. Handysides’ argument, that if one were to use the September 23rd statement to extrapolate an annualized income, the result would still be $70,727 in income for the year. However, annualizing income in that way assumes that the eight months of overtime hours would continue to be available for the entire year at the same levels as they existed from January through August. That is inconsistent with the essentially unchallenged evidence of the respondent that, with the discontinuance of the Corolla production line, one should reasonably expect that the amount of overtime hours available to the respondent will decrease.
[30] In my view, the fairer approach is to consider what actually happened to the respondent’s position in the pay periods following the implementation of the new work schedule in August 2017. To that end, it is instructive to examine each of the August 26th, September 9th, and September 23rd statements and consider what an annualized income would obtain if one extrapolated based on each statement.
[31] The pay statement for the pay period ending August 26, 2017, shows total gross income of $2,607.95 paid for that period. On an annualized basis, that would amount to $67,806 per annum. Similarly, the statement for the pay period ending September 9, 2017, shows total gross income of $2,548.45 paid for that period. On an annualized basis, that would amount to $66,259 per annum. Finally, the statement for the period ending September 23rd shows total gross income of $2,609.37 paid, which, on an annualized basis, would amount to $67,843.
[32] I note that the average of those three annualized incomes is approximately $67,302. In my view, that provides some support for the respondent’s position.
[33] Recognizing the inherent difficulties in attempting to predict what the respondent’s income will be based on how much overtime hours will or will not be available to him, I conclude that $68,500 is a fair amount to attribute to the respondent as an annual income for purposes of determining spousal support on an interim basis.
Support payments
[34] The applicant states that the respondent has provided her with only $100 in spousal support since their separation. The respondent disputes the suggestion that he has provided the applicant with no financial support, pointing out that since the parties’ separation, he has paid various expenses for the applicant.
[35] The parties dispute the particular amounts paid by the respondent. However, the applicant does acknowledge that some payments were made by the respondent. In particular,
a. the applicant acknowledges that the respondent paid her cell phone bills from the date of their physical separation in December 2015 until September 2016;
b. the applicant agrees that the respondent paid for her car insurance until December 2016; and
c. the applicant agrees that the respondent paid the entire amount of the parties’ joint consumer proposal to their creditors from the date of separation until it was paid in full in May 2017, at the rate of $300 per month. The applicant acknowledges that one-half of the amount paid is attributable to her portion of the joint proposal.
[36] It is also common ground that the applicant has paid no child support to the respondent since separation for the support of Dallas. The evidence indicates that the respondent pays $3,000 per annum in educational expenses for Dallas.
Analysis
The applicant’s motion for interim spousal support
[37] Neither party has made a claim for a divorce under the Divorce Act.[^33] The applicant has advanced her claim for spousal support under the Family Law Act.[^34]
[38] Section 30 of the Family Law Act sets out the basic obligation of spouses to provide support in the following terms:
Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.
[39] The purpose of an order of spousal support is addressed in s. 33(8) of the Act, which 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).
[40] Subsection 33(9) of the Act enumerates a list of factors that the court must consider in determining the amount of support. Section 34 of the Act empowers the court to make both final and interim orders for support.
[41] The courts have repeatedly said that the “purpose of an interim support award is to allow a dependant to maintain a reasonable lifestyle pending trial.”[^35] In Fyfe v. Jouppien, Chappell J. expressed the notion in the following terms: “[i]nterim support is meant to be in the nature of a ‘holding order’ to, insomuch as possible, maintain the accustomed lifestyle pending trial.”[^36]
[42] In terms of the principles that a court should consider on a motion for interim support, counsel for the applicant placed much reliance on the test expressed by Master Keighley of the British Columbia Supreme Court in Robles v. Kuhn.[^37] Consistent with the submissions of Mr. Handysides, I note that the analysis in Robles v. Kuhn has been considered at least 95 times by the courts of several different provinces,[^38] has been followed by various judges of the Ontario Superior Court of Justice,[^39] and while it would seem it has not been expressly adopted by our Court of Appeal, it was cited with approval in at least one appellate decision in Ontario.[^40]
[43] Mr. Wright, for the respondent, made no submission to the effect that the principles collected in Robles v. Kuhn were expressed incorrectly or are otherwise inapplicable.
[44] In Robles, the court articulated the following eight principles to be considered on motions for interim spousal support:
a. on applications for interim support, the applicant’s needs and the respondent’s ability to pay assume greater significance;
b. 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;
c. 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;
d. the courts should not unduly emphasize any one of the statutory considerations above others;
e. on interim applications, the need to achieve economic self-sufficiency is often of less significance;
f. interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise;
g. interim support should be ordered only where it can be said a prima facie case for entitlement has been made out;
h. 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.[^41]
[45] Applying these considerations to the instant case, I am not satisfied that the applicant’s motion for interim support should succeed.
[46] I well appreciate that this was a marriage of at least 20 years’ duration. However, that is not the determinative factor. Indeed, I would note that duration of the relationship is not even mentioned in the Robles analysis, upon which the applicant so heavily relies.
[47] I also appreciate that, on the evidence before me, the respondent has the ability to pay spousal support. While that is an important consideration, it also is not determinative.
[48] In my view, the motion must fail because the applicant has not made out a prima facie case for entitlement.
[49] The question of the applicant’s income is problematic. The applicant says that she earns an income of no more than $10,000 per year. She says it is not appropriate to impute income to her given her health conditions and her employment history, i.e., her giving up the most lucrative position she ever had (the Cosmetics Manager position in Kincardine) for the sake of the family.
[50] I have difficulty with the sufficiency of evidence that the applicant has offered in support of these propositions. I should say at the outset that I agree with the approach articulated by, among others, Corbett J. in Geishardt v. Ahmed, where the court held that:
A party who wishes to have her medical condition taken into account as a basis that she cannot work bears the onus to establish material disability. This goes beyond testifying that she suffers from depression and anxiety: she must establish that the extent of her condition disables her from work. This onus cannot ordinarily be discharged solely on the basis of the party’s testimony. … She would need to produce medical records and expert evidence about her condition, prospects and treatment.[^42]
[51] In support of her assertion that she is unable to earn any income by reason of her various health conditions, the applicant relies on two “medical notes from Dr. Emond and Dr. Starr regarding my suitability for work.”[^43]
[52] In other words, the applicant purports to rely upon opinion evidence to support her contention that her current medical conditions prohibit her from earning an income through employment.
[53] It is common ground that the opinion evidence of the two doctors in question is not set out in a full and proper expert’s report.
[54] The first doctor’s note is set out in a letter on the letterhead of the Kincardine Community Medical Clinic, is signed by one Dr. M. Emond, and is dated September 23, 2016. It contains only two sentences, only one of which is informative, barely. In its entirety, the note reads: “This is to inform you that is pt is off work indefinitely due to left shoulder shows frayed tendons and bursitis [sic]. If you need any further information please contact our office.”
[55] The note is significantly stale-dated. It was written now more than a year-and-a-half ago. At best, on its face, the observation or opinion set out in the note is temporary; it expresses a view of circumstances that existed at that time, a year-and-a-half ago. I am now, in essence, invited to assume that the same circumstances that may have existed a year-and-a-half ago continue to exist at present.
[56] Even leaving aside its lack of timeliness, the note is seriously deficient. I know nothing about Dr. Emond. I know nothing about his or her qualifications, area of practice, experience, or expertise. I know nothing of the relationship between Dr. Emond and the applicant. I know nothing of how long he or she may have been following the applicant. I know nothing of the purpose of the applicant’s attendance before Dr. Emond. I know nothing about what tests or procedures he or she may or may not have ordered before writing the note. I know nothing about the purpose underlying the note or why it was written; I know only that, clearly, it could not have been written for the purpose of the interim motion before me, as it was written some three months before the instant application was even commenced. I have no context to be able to assess the opinion offered.
[57] The content of the note is also not particularly informative. To say that a patient “is off work indefinitely due to” issues with the patient’s left shoulder is not the same thing as opining that a plaintiff is unable to work because of the left shoulder issues. It may reflect nothing more than an observation that the patient is not attending work for reasons that the patient attributes to certain issues. Indeed, the doctor’s conclusory opinion, assuming it is an opinion, may be entirely founded on the applicant’s subjective reports about the severity of the left shoulder issues and the effect of those symptoms on her ability to work.
[58] I also note that apart from the issues with the left shoulder, the letter signed by Dr. Emond does not even mention any of the medical issues that the applicant relies upon in her affidavit.
[59] Fundamentally, the note does not express an opinion that the patient is incapable of working. It does highlight issues with the patient’s left shoulder, but it does not address employment that may not engage the issues with the left shoulder. That is, the note does not express an opinion that the applicant is completely unemployable for all positions.
[60] At its very highest, the note offers a general conclusory opinion that the patient is currently not working because of issues with the patient’s left shoulder. It does not say that the applicant is incapable of engaging in any form of work. It does not say that the applicant is permanently disabled or will never return to work.
[61] Even then, one of the central difficulties in assessing the opinion of Dr. Emond lies with the failure of the doctor to articulate his or her reasons for his or her stated view. At best, the note states that the applicant is off work because of her current symptoms. The note does not, however, explain why the applicant’s reported symptoms render her incapable of working. The note does not specifically identify the applicant’s functional tolerances or deficits.
[62] Without an explanation or understanding of the method and reasoning that Dr. Emond employed to reach his or her so-called opinion, I am unable to place any weight upon the so-called opinion.
[63] Essentially the same considerations apply to the second doctor’s note upon which the applicant relies. The second document is a handwritten note prepared by one Dr. Starr, written on a prescription pad, and dated April 21, 2017. It states, in full, as follows:
Patient was seen & evaluated in my office on 4/21/17. In my medical opinion she is unable to work at this time. We are in the process of formulating a treatment plan.
[64] It is common ground that, notwithstanding the reference by Dr. Starr to “formulating a treatment plan,” the applicant provided no evidence that the promised treatment plan was ever produced. Certainly it was not in evidence before me. Given that the handwritten note of April 21, 2017, was written about one-half year before the motion was argued, it cannot be the case that there was insufficient time to produce the promised treatment plan. In the circumstances, I draw the inference that no treatment plan was ever produced.
[65] With the possible exception of the timeliness of the note, all of the considerations and concerns outlined above in relation to the letter of Dr. Emond apply with no less force to the handwritten note of Dr. Starr. Indeed, the handwritten note of Dr. Starr does not even identify any medical condition at all that might inform the doctor’s conclusory opinion that the applicant is unable to work at that time.
[66] For all of the same considerations and concerns outlined above, I am unable to place any weight upon the opinion of Dr. Starr.
[67] In sum, in my view, the applicant has been unable to demonstrate that her various medical conditions prevent her from working.
[68] Indeed, the evidence before the court would suggest the very opposite – that the applicant has not been prohibited from working by reason of her medical issues. Attached to the reply affidavit of the respondent is a photocopy of a page from the September 2017 edition of “The Bruce County Marketplace” magazine, which page contains an advertisement for P.C.’s personal injury law firm in Windsor. The prominent feature of the advertisement is a photograph of the applicant, with the applicant’s name underneath the photograph. The caption in the advertisement reads: “Injured? Contact Melissa to arrange your FREE CONSULTATION. We will come to you. Our Guarantee: You pay NOTHING until we win.” The advertisement then sets out certain contact information. Other than the name of the law firm, which bears P.C.’s surname, there is no reference to P.C. contained in the advertisement at all. There is no photograph of P.C., there is no mention of his name. The sole focal point of the advertisement is the applicant.
[69] The respondent also offered two “print-screen” copies of pages from the website of P.C.’s personal injury law firm. The first page is a depiction of the home-page of the firm’s website, which shows that if one selects the “About Us” tab at the top of the home-page, a drop-down menu displays two names, and two names only, that is, the name of P.C., being the principal of the law firm and apparently its only lawyer, and the applicant herself. If one then selects the applicant’s name from the drop-down menu, a biographical page then appears, as depicted in the second page, which again prominently features a photograph of the applicant, with the caption underneath the photograph: “Legal Assistant Melissa Wilkins,” together with the following biographical information:
As legal assistant to [P.C.], Melissa assists with making sure that each client’s matter moves efficiently toward a successful outcome. This calls upon Melissa to be a master of many skills, including scheduling, document management, and corresponding with clients and the legal community.
Melissa is recognized by the Province of Ontario, as a Commissioner for Taking Affidavits, qualifying her to assist in the preparation of Court documents.
Away from the office, Melissa is an unapologetic metal fan and dog lover. As often as possible, Melissa I headed back to the shores of Lake Huron, and her home town of Kincardine.
[70] Again, the evidence of the applicant is that while she does acknowledge that she “earn[s] an annual income of approximately $10,000.00 from my employment,” she does not receive a paycheque for the work she performs for P.C. and his law firm. Rather, she says, P.C. pays expenses on her behalf.
[71] Taken collectively, the evidence before me does not establish that the applicant is unable to work or earn an income. On the contrary, the evidence concerning the applicant’s apparent employment at the law firm of P.C. as his legal assistant belies the applicant’s assertions that her medical conditions “[make] regular employment impossible.”[^44] On the evidence before me, I reject the applicant’s suggestion that her medical conditions make regular employment impossible for her.
[72] I appreciate the applicant’s submission that she is functioning as a legal assistant at P.C.’s law firm primarily because of her romantic relationship with P.C., and that absent such relationship, she may well have difficulties securing a comparable legal assistant position at another law firm. That said, that goes to establishing only that the applicant may not be employable as a legal assistant. It does not establish that she is incapable of all employment. It does not establish that she is incapable of securing employment that pays at least a minimum-wage income.
[73] Further, the applicant comes to court requesting an interim order for support when she has not made proper financial disclosure. Mr. Handysides submits that the applicant’s failure to make proper disclosure is a red herring. Respectfully, I disagree. Our Court of Appeal has repeatedly said that the most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing and should not require court orders.[^45] Moreover, failure to provide required income information is a basis in and of itself to impute income to the applicant: see s. 19 (f) of the Federal Child Support Guidelines.[^46]
[74] Having regard for the provisions of the Family Law Act and the principles enumerated in Robles, I am not satisfied that the applicant has demonstrated a prima facie case of entitlement.
[75] Following Bracklow v. Bracklow, the law recognizes three conceptual bases for entitlement to spousal support: (a) compensatory; (b) non-compensatory; and (c) contractual.[^47] The contractual basis for support has no relevance in the instant case.
[76] The applicant wife advances a compensatory claim for support. She argues, in essence, that she suffered economic disadvantage by reason of the roles played by the parties during the marriage. In particular, she alleges that she was the primary care-giver of the children and worked only sporadically while they were being raised. In a similar vein, she argues that she lost the most lucrative position she ever had (the Cosmetics Manager position in Kincardine) for the sake of the family when they moved to Kitchener so that the respondent husband could take up his position with Toyota.
[77] As indicated above, the respondent husband disputes the applicant’s claim that she was the primary care-giver of their children. He maintains that the child-rearing function was a joint responsibility. I note that the youngest son, Dallas, continues to reside with the respondent father, and he alone contributes to the post-secondary education expenses of Dallas. The respondent father also disputes the reasons why the applicant gave up her employment in Kincardine. As noted previously, the precise timing of the family’s re-location to Kitchener and the reasons therefor are not in evidence.
[78] As such, given the deeply contested issues of fact, it is clear that the applicant wife’s entitlement to spousal support on a compensatory basis is an issue for trial. As the court in Robles concluded, “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.”[^48]
[79] What remains to be considered is whether the applicant wife has shown a prima facie case of entitlement on a non-compensatory basis. In Bracklow, McLachlin J. (as she then was) rejected the notion that an award of spousal support should be grounded on a compensatory basis only, and said:
But while the focus of the Act may have shifted or broadened, it retains the older idea that spouses may have an obligation to meet or contribute to the needs of their former partners where they have the capacity to pay, even in the absence of a contractual or compensatory foundation for the obligation. Need alone may be enough.[^49]
[80] In my view, in the instant case, the applicant has failed to establish entitlement on non-compensatory grounds given the lack of compelling evidence as to her needs. As the court said in Robles, on motions for interim spousal support, “the applicant’s needs and the respondent’s ability to pay assume greater significance.”
[81] As I have said, the respondent husband’s ability to pay is not in question. But the same cannot be said for the applicant wife’s needs.
[82] The available evidence indicates that the applicant works for a law firm in the functioning capacity of a legal assistant, in respect of which she is apparently not paid any salary, but her employer pays for certain (unenumerated) expenses on her behalf, in the total amount of approximately $10,000 per year. In my view, that arrangement raises more questions than it answers. But, for present purposes, I leave that aside.
[83] The question of need must be assessed contextually. The applicant wife readily admits that she has been residing with her partner, P.C., a practising personal injury lawyer, since December 2015. Looking at her affidavits filed in support of her motion, the evidence of the applicant does not state that she cannot meet her financial obligations, nor she specify what her financial obligations are. The evidence of the applicant does not state that she cannot make ends meet or put food on the table. The evidence of the applicant does not state that she is experiencing the type of “financial hardship” contemplated by s. 33(8) (d) of the Family Law Act or at all.
[84] In fairness, the evidence of the applicant does state that if P.C. “had not allowed me to live with him, I would likely have been homeless.”[^50] That said, in my view, there is a certain tautological taint to such statements. It strikes me as akin to saying something like “had I not married my partner, I would have remained single.” The point, for present purposes, is that she is not homeless, she is living with P.C., and while she might have experienced certain consequences had she not established a relationship with P.C., there is no evidence before the court that she has in fact experienced those consequences. Generally speaking, the court does not grant relief on account of circumstances that might have transpired but did not.
[85] Further, while the applicant wife readily admits that she has been residing with her current partner, P.C., since December 2015 – since, now, almost two-and-a-half years ago – I have no information about the income of P.C., or his contribution to the financial support or financial well-being of the applicant. In a similar vein, I have no information about the applicant’s current standard of living with P.C. While, as I have said, the courts have repeatedly said that the purpose of an interim support award is to allow a spouse to maintain a reasonable lifestyle pending trial, I have no evidence that the applicant is not currently enjoying a reasonable lifestyle. I have no evidence at all from the applicant as to a deprivation in her lifestyle.
[86] In such circumstances, I cannot conclude that the applicant wife has demonstrated that she bears a need for support. Thus, I cannot conclude the applicant has demonstrated a prima facie case for entitlement on non-compensatory grounds.
[87] As the court said in Robles, a case upon which, again, the applicant heavily relies, interim support should be ordered only where it can be said a prima facie case for entitlement has been made out. In the circumstances of the instant case, I find that the applicant has not demonstrated a prima facie case for entitlement.
[88] For all of these reasons, the applicant wife’s motion for interim spousal support must be dismissed, without prejudice to her right to renew her claim for spousal support at trial.
The respondent’s motion for interim child support
[89] Given my concerns (as expressed above) regarding the applicant’s income, I have struggled with the notion of whether to impute to the applicant wife at least a minimum-wage income, and then base a child support payment to the respondent father for the support of Dallas on that minimum-wage income. Among other things, I am mindful of the applicant mother’s protestations that she has no actual income to pay for child support for Dallas.
[90] However, after much difficult consideration, I have concluded that the better approach is to make no order for interim child support at this juncture.
[91] While the question is certainly not free of doubt, I am persuaded on balance that the prevailing weight favours the submission of Mr. Handysides that imputing an income more than $10,000 to the applicant wife would be inappropriate and premature at this juncture given that (a) the court’s appreciation of the circumstances of the instance case is little better than at an interim interim basis, (b) none of the parties’ affidavits have been subjected to cross-examination, and (c) the court has only conflicting and untested affidavits of the parties before it, but certainly some aspect of the applicant wife’s evidence raises the issue that she may be unable to earn a full income on the basis of medical disability.
[92] In these circumstances, somewhat reluctantly, I exercise my discretion and decline to make an award of interim child support.
[93] As such, the respondent husband’s motion for interim child support is dismissed, without prejudice, of course, to his right to renew his claim for child support at trial.
Costs
[94] In the result, the applicant wife was unsuccessful on her motion for interim spousal support, and the respondent husband was unsuccessful on his motion for interim child support.
[95] As such, success was divided, and accordingly there shall be no order as to costs on the motions before me.
Conclusion
[96] As referenced in para. [5] above, an order shall issue, on consent, in the following terms:
a. The respondent shall designate the applicant as the beneficiary of one-half of the death benefit payable under any policy of insurance on the life of the respondent for so long as the respondent is required to provide the applicant with financial support for herself.
b. The respondent shall designate the applicant as a beneficiary on all health and medical benefits available to him through his employment.
c. The respondent shall submit to his health and medical benefit carrier all requested benefit claims incurred by the applicant and shall provide the applicant with all benefit reimbursement payments in respect of claims made by her and processed through his benefit carrier with 48 hours of the receipt of the reimbursement funds.
[97] The applicant wife’s motion for interim spousal support is dismissed, without prejudice to her right to renew that claim at trial.
[98] The respondent husband’s motion for interim child support is dismissed, without prejudice to his right to renew that claim at trial.
[99] There shall be no order as to costs.
“original signed and released by Howard J.”
J. Paul R. Howard
Justice
Date: May 14, 2018
[^1]: Continuing Record, Tab 11, Affidavit of Melissa Anne Wilkins sworn August 15, 2017 (“Applicant’s Original Affidavit”), at para. 11. [^2]: Continuing Record, Tab 6, Answer of Kenneth Charles Wilkins, filed March 31, 2017, at p. 7 [^3]: Continuing Record, Tab 16, Affidavit of Kenneth Charles Wilkins sworn October 5, 2017 (“Respondent’s Reply Affidavit”), at para. 8. [^4]: Continuing Record, Tab 15, Affidavit of Melissa Anne Wilkins sworn September 26, 2017 (“Applicant’s Reply Affidavit”), at para. 5. [^5]: Ibid. [^6]: Ibid. [^7]: Continuing Record, Tab 14, Affidavit of Kenneth Charles Wilkins sworn September 8, 2017 (“Respondent’s Original Affidavit”), at para. 15. [^8]: Respondent’s Reply Affidavit, at para. 6. [^9]: Applicant’s Reply Affidavit, at para. 5. [^10]: Respondent’s Reply Affidavit, at para. 6. There is some merit in Mr. Handysides’ point that the respondent’s assertion of a buy-out payment from the applicant’s position at Shoppers Drug Mart in Kincardine was raised for the first time in his reply affidavit, leaving the applicant unable to properly address the point. That said, this suggested unfairness is somewhat belied by the fact that the applicant herself apparently chose not to even reference the Shoppers Drug Mart position in Kincardine in her original affidavit. Had she done so, as one might have thought she should, the point would likely have been fleshed out in the responding and reply affidavits. [^11]: Applicant’s Reply Affidavit, at para. 6. [^12]: Applicant’s Original Affidavit, at para. 6. [^13]: Respondent’s Original Affidavit, at paras. 13-14. [^14]: Applicant’s Reply Affidavit, at para. 6. [^15]: Applicant’s Original Affidavit, at para. 6. [^16]: Ibid., at para. 7. [^17]: Ibid., at para. 8. [^18]: Ibid. [^19]: Applicant’s Reply Affidavit, at para. 8. [^20]: Respondent’s Original Affidavit, at para. 13. [^21]: Applicant’s Reply Affidavit, at para. 8. [^22]: Ibid., at para. 9. [^23]: Ibid., at para. 7. [^24]: Applicant’s Original Affidavit, at para. 11. [^25]: Ibid. [^26]: Ibid. [^27]: Applicant’s Reply Affidavit, at para. 7. [^28]: Ibid., at para. 8. [^29]: Total income reported was $10,611, universal child care benefit was $720, and employment insurance and other benefits was $4,156. It was not explained why the applicant was receiving a universal child care benefit. [^30]: Respondent’s Original Affidavit, at para. 25. [^31]: Ibid., at para. 28. [^32]: Respondent’s Reply Affidavit, at para. 13. [^33]: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). [^34]: Family Law Act, R.S.O. 1990, c. F.3. [^35]: Newcombe v. Newcombe, 2014 ONSC 1094 (S.C.J.), at para. 16 per Heeney R.S.J., quoting Haney v. Haney, [2005] O.J. No. 2329 (S.C.J.), at paras. 50-51. See also Harrison v. Harrison, 2001 60967 (ON SC), [2001] O.J. No. 470, 14 R.F.L. (5th) 321 (S.C.J.), at para. 55; Haroun v. Haroun, 2001 28128 (ON SC), [2001] O.J. No. 2575, 20 R.F.L. (5th) 64 (S.C.J.), at paras. 8-11; Fyfe v. Jouppien, 2011 ONSC 5462, 10 R.F.L. (7th) 336 (S.C.J.), at para. 38; and Kowalski v. Grant, 2007 MBQB 235, 43 R.F.L. (6th) 344 (Man. Q.B.), at paras. 15-18. [^36]: Fyfe v. Jouppien, at para. 38, citing Kowalski v. Grant, at para. 17. [^37]: Robles v. Kuhn, 2009 BCSC 1163. [^38]: Based on reported case treatment in WestlawNext Canada. [^39]: Most recently, in Blackstock v. Comeau, 2018 ONSC 193 (S.C.J.). [^40]: Vainshtein v. Vainshtein, 2016 ONSC 3697 (Div. Ct.), at para. 13 per Thorburn J. [^41]: Robles v. Kuhn, at para. 12 [citations omitted], quoted in Vainshtein v. Vainshtein, at para. 13. [^42]: Geishardt v. Ahmed, 2017 ONSC 5513, 1 R.F.L. (8th) 152 (S.C.J.), at para. 36. In stating my affinity for the position articulated in cases like Geishardt, I am mindful of the general commentary offered by the Supreme Court of Canada in Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920, 34 R.F.L. (6th) 1, at para. 28. As a general proposition, I agree with the Supreme Court that independent medical evidence may not be essential in every case. However, in the circumstances of the instant case, such evidence is more than just “highly desirable.” Where the point is the subject of conflicting positions and evidence of the parties, such evidence will be of particular importance to the motion judge or trial judge. [^43]: Applicant’s Original Affidavit, at para. 9. [^44]: Applicant’s Original Affidavit, at para. 9. [^45]: Wouters v. Wouters, 2018 ONCA 26, at para. 45, citing Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6, at paras. 11-13. [^46]: Federal Child Support Guidelines, SOR/97-175, as am. [^47]: Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 S.C.R. 420, 169 D.L.R. (4th) 577, 44 R.F.L. (4th) 1. [^48]: Robles v. Kuhn, at para. 12(8). [^49]: Bracklow v. Bracklow, at para. 43. [Emphasis in the original.] [^50]: Applicant’s Reply Affidavit, para. 8.