Court File and Parties

COURT FILE NO.: 18-95 DATE: 2018/09/17 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Louise Mary Mignault – and – Norman Adrian Lauzon

Counsel: Edward C. Castle, counsel for the Applicant A. Lawrence Filion, counsel for the Respondent

HEARD: August 17, 2018

Ruling on Motion

Desormeau, j.

Overview

[1] The Respondent, Dr. Norman Lauzon, brought this motion for a temporary order of exclusive possession of the matrimonial home and its contents.

[2] The Applicant, Ms. Louise Mignault, brought a cross-motion for a temporary order of exclusive possession of the matrimonial home and for spousal support. As alternate relief to the request for exclusive possession, she advances mutual possession of the matrimonial home.

Background

[3] The parties were married September 17, 2011. They separated November 15, 2017.

[4] Dr. Lauzon is 70 years old. He has two adult children from a previous marriage. He has lived in Cornwall, Ontario his entire life.

[5] Ms. Mignault is 64 years old. She does not have children. She resided in Montreal, Quebec prior to marrying Dr. Lauzon, at which time she moved to Williamstown, Ontario.

[6] Prior to their marriage, for 32 years, Ms. Mignault worked as a make-up artist in the film industry from which she has received a number credits as a “key make-up artist”. She has not worked since marrying Dr. Lauzon.

[7] Ms. Mignault’s only income is her CPP benefits of $507.00 per month, and the sale of her art work, which she estimates is approximately $1,000.00 per year.

[8] Dr. Lauzon is a licensed medical doctor who practiced in Cornwall for 43 years. Due to medical reasons, which commenced with a massive heart attack in June, 2017, he was forced to close down his medical practice. There is no possibility of him resuming work. This is uncontested by the Wife.

[9] Dr. Lauzon has been diagnosed with complex post-traumatic stress disorder and occupational burnout.

[10] From August, 2017 to April, 2018, Dr. Lauzon received $5,000.00 per month from disability insurance benefits. His current income is based on CPP and OAS, from which he earns approximately $1,233.55 per month.

[11] Ms. Mignault also has health issues. Her psychologist describes her condition as an adjustment disorder which is likely to lead to a resistant major depression. She also indicates she suffers from arthritis.

[12] The matrimonial home, municipally known as 5857 Glen Brook Road, Williamstown, Ontario, was purchased by Dr. Lauzon approximately one year prior to marriage, and is owned by him. The parties have resided in the matrimonial home throughout the marriage, and both continue to reside there since the date of separation. Should the home be listed for sale, renovations would be required to obtain the best sale price.

[13] The fixed expenses of the matrimonial home total approximately $3,149.00 per month. In order to pay for those expenses, Dr. Lauzon uses his line of credit.

[14] The home is approximately 3500 square feet. Since separation, Dr. Lauzon has used his converted medical office located inside the home as his living quarters, while Ms. Mignault has used her bedroom. They have shared the common areas such as the kitchen.

Issue 1 – Material referred to in confirmation form

[15] In the Applicant’s confirmation of motion form, counsel for the Applicant referred to information attached to Tab 10-2, 10-3, and 10-4. At the outset of the motion, the court inquired about the documents as they were not located in the court’s continuing record. Counsel for the Applicant explained what was referred to in the confirmation form. The documentation was unsworn evidence in the form of letters. Counsel for the Respondent objected to the evidence being considered at the motion due to the nature of the evidence and as it was not properly before the court.

[16] The court finds that Tabs 10-2, 10-3 and 10-4 are not properly in evidence for this motion. They are letters which express opinions. They are not appended to an Affidavit, nor do they meet the requirements of expert evidence. As such, the court has not considered the evidence contained therein, nor the arguments advanced regarding same.

Issue 2 - Interim Exclusive Possession of the Matrimonial Home

[17] Despite being married, neither party have plead for relief under the Divorce Act. Therefore, the applicable legislation is the Family Law Act (“FLA”).

[18] Section 19 of the FLA states that both spouses have an equal right to possession of the matrimonial home.

[19] Section 24(1) FLA sets out the following:

24 (1) Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse’s right of possession), the court may on application, by order,

(a) provide for the delivering up, safekeeping and preservation of the matrimonial home and its contents;

(b) direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs and release other property that is a matrimonial home from the application of this Part;

(c) direct a spouse to whom exclusive possession of the matrimonial home is given to make periodic payments to the other spouse;

(d) direct that the contents of the matrimonial home, or any part of them,

(i) remain in the home for the use of the spouse given possession, or

(ii) be removed from the home for the use of a spouse or child;

(e) order a spouse to pay for all or part of the repair and maintenance of the matrimonial home and of other liabilities arising in respect of it, or to make periodic payments to the other spouse for those purposes;

(f) authorize the disposition or encumbrance of a spouse’s interest in the matrimonial home, subject to the other spouse’s right of exclusive possession as ordered; and

(g) where a false statement is made under subsection 21 (3), direct,

(i) the person who made the false statement, or

(ii) a person who knew at the time he or she acquired an interest in the property that the statement was false and afterwards conveyed the interest,

to substitute other real property for the matrimonial home, or direct the person to set aside money or security to stand in place of it, subject to any conditions that the court considers appropriate. R.S.O. 1990, c. F.3, s. 24 (1).

[20] The relevant factors for the court to consider in determining whether to make an order for exclusive possession are found at section 24(3) FLA:

24 (3) In determining whether to make an order for exclusive possession, the court shall consider,

(a) the best interests of the children affected;

(b) any existing orders under Part I (Family Property) and any existing support orders or other enforceable support obligations;

(c) the financial position of both spouses;

(d) any written agreement between the parties;

(e) the availability of other suitable and affordable accommodation; and

(f) any violence committed by a spouse against the other spouse or the children. R.S.O. 1990, c. F.3, s. 24 (3); 2014, c. 7, Sched. 9, s. 4.

[21] Both parties agree that only sections 24(c), 24(e), and 24(f) apply in the case at bar as there are no dependent children, nor are there any existing orders or written agreements.

[22] In support of his claim for exclusive possession, briefly summarized, Dr. Lauzon advances:

a. He does not have the financial means to find alternate accommodations so long as he is paying the expenses of the matrimonial home. Further, for various reasons, including his health issues, he is unable to reside with either of his children or his former spouse. His former spouse: Barbara Lauzon filed an affidavit setting out that he cannot reside with her. b. Undertaking a major move would be deleterious to his already precarious health. In support of this, he relies on correspondences from his treating doctor (family physician practicing in psychotherapy): Dr. Low, dated April 16, 2018 and May 31, 2018. These are attached to his affidavit dated July 12, 2018, at Exhibits L and M. In the first letter, Dr. Low indicates that Dr. Lauzon’s mental health would be adversely affected to a large extent if he were required to leave his family home and relocate elsewhere at this time. In the May 31, 2018 letter, Dr. Low supports Dr. Lauzon’s request that Ms. Mignault vacate the family home and believes that this would greatly reduce Dr. Lauzon’s symptoms of acute stress disorder and make his PTSD easier to treat. c. Ms. Mignault does not contribute to the cleaning or maintenance of the property, which makes the space difficult to share. This allegation is denied by Ms. Mignault. d. In March, 2018, while Dr. Lauzon was away, Ms. Mignault broke the lock to his living quarters where he kept his personal financial documents and confidential medical records. She permitted a third party to stay in that room. This caused Dr. Lauzon to be concerned for his safety, as well as causing him distress and anxiety. e. Ms. Mignault has a line of credit and credit cards which she can draw upon to cover moving expenses and rent, which can be repaid once she secures employment. She has also access to funds she withdrew from the joint back account and from the bank account of Norman Lauzon Medical Professional Corporation following separation. f. Ms. Mignault has a minimal connection with Cornwall, has previously resided in subsidized housing in Montreal, and could reside with either her friend or her brother. All of these suggestions were disputed by Ms. Mignault. g. Dr. Lauzon was subjected to domestic abuse by his Wife, including but not limited to physical and emotional abuse. Out of fear of his Wife, Dr. Lauzon restricted the time he was in the house. All of the allegations were denied, minimized or contradicted by Ms. Mignault.

[23] In support of her claim for exclusive possession, or alternatively mutual possession of the matrimonial home, a summary of Ms. Mignault’s argument is:

a. She does not have the financial resources to rent reasonable accommodations for herself and therefore is unable move out of the matrimonial home. Further, for various reasons, she is unable to reside with her friend or with her brother, as evidenced by their own affidavits. b. She is prepared to coexist in the matrimonial home. Should Dr. Lauzon disagree, then he is better able to find alternate accommodations due to his financial resources. He also has family with whom he could reside. This is disputed by the Respondent. c. While Dr. Lauzon has approximately 600 square feet of personal living space, which consists of his bedroom and office space, Ms. Mignault’s bedroom is approximately 160 square feet. She eats in her bedroom, and uses the communal space for everything else. She denies the allegations that the kitchen area is infested with bugs and that she does not clean up after herself. d. Dr. Lauzon’s office has always doubled as a guest area which Ms. Mignault was always able to access. Friends and family have stayed in the office guest area in the past, with full knowledge and consent from the Respondent. When Dr. Lauzon went to Florida in 2017, he left the door unlocked. When he went there again on or about January, 2018, he locked the office door. Ms. Mignault advances that this was done maliciously as the Respondent knew she wanted visitors during his absence. Further, for insurance purposes, she was cautioned not to leave the office section empty without periodic inspection. e. Since Christmas, 2017, there has been zero personal contact between herself and the Respondent. While the Respondent’s area is locked, he has unfettered access to Ms. Mignault’s space. f. In response to Dr. Lauzon’s claim that he does not have sufficient income to pay the expenses related to the matrimonial home, Ms. Mignault indicates that he could reduce the mortgage payment, or sell his Fifties Fashion collection. However, it was advanced by Dr. Lauzon that he has been trying to sell the collection for a number of years without success. He contributes an undisputed $456.00 per month toward storage fees for his collection. g. Prior to separation, Dr. Lauzon gave his son $160,000.00 from his $200,000.00 critical illness policy. While this is undisputed, the reasons advanced by Dr. Lauzon include that it was a commitment made to his son, the transfer occurred prior to his knowledge that the parties were separating, and Ms. Mignault was well aware of this ongoing priority and of all the financial dealings. h. While pleading poverty, since separation, Dr. Lauzon has purchased two motor home style trailers worth between $40,000.00 and $50,000.00. The purchase and description of the trailers is not disputed by Dr. Lauzon. They were purchased for his son. The cost was $25,000.00 and $17,000.0, paid from Dr. Lauzon’s line of credit. Dr. Lauzon indicates his son reimbursed him for the first trailer, but the second indebtedness is still outstanding. i. Dr. Lauzon could be taking 1/20 of his RRSP’s as income, which would increase his income by approximately $33,000.00. Further, he has retained earnings in his medical corporation which he could be accessing. Though Dr. Lauzon disputes the argument regarding retained earnings, and while he does not say he is unable to draw upon his RRSP’s, he indicates that he will only be accessing these monies in 2019. j. Ms. Mignault is unable to support herself on her current income, let alone pay for other accommodations. Her income from prior years includes receiving dividends from Dr. Lauzon’s corporation. However, she indicates that she did not receive this income personally, nor was it deposited into her own account. The monies were deposited into the joint account, which Dr. Lauzon controlled. Dr. Lauzon disputes that Ms. Mignault did not have access to or control of the joint account. Further, despite her allegedly not having any control of the monies in the joint account, Ms. Mignault acknowledges that following separation she took out monies from the joint account and monies from the Respondent’s professional corporation to pay bills. The bills found attached to her affidavit at Tab 14, Exhibit E however are not all contemporaneous with the timing of separation. k. Ms. Mignault advances that it would be irresponsible to incur debt to pay for housing and her support when she has no viable means to repay the debt. Further, she states that she does not have access to her late father’s estate from which to support herself. l. She provided a letter dated July 22, 2018 from Dr. Tourjman, found at Exhibit H to her affidavit dated August 8, 2018. Dr. Tourjman has been following the Applicant since the 1990’s when she was suffering from a resistant depression. Ultimately, Dr. Tourjman states that the Applicant’s condition “can be described as an adjustment disorder however, given her past history, this is likely to lead to a resistant major depression if the stressors in her life are increased by removal from her home and destitution”. At paragraph 73 of her affidavit, Ms. Mignault summarizes Dr. Tourjman’s correspondence to state that “because of the increased anxiety which the breakdown of our marriage has caused that I be allowed to remain [sic] my home until stable housing and financial alternatives are arranged.”

[24] A review of the case law sets out the following principles:

a. The legislature intended that spouses and children be able to maintain the shelter and consistency afforded by a matrimonial home while the issues arising from marriage breakdown are determined: Menchella v. Menchella, 2012 ONSC 1861, at para. 16. b. Awarding one party interim exclusive possession of the matrimonial home will have an impact far beyond simply forcing a physical separation of the parties: Gredig v. Dennis, 2012 ONSC 5223, at para. 15. c. The onus is on each part to prove his or her right to have exclusive possession since each claim it: Cowan v. Cowan, 2016 ONSC 2316 at para. 27. d. While the effect of the order sought is to evict a spouse from the matrimonial home, it is incumbent on the moving party to demonstrate that the continued shared use of the home is a practical impossibility: Ransom v. Ransom, 1988 CarswellOnt 1401 (Master); Gore v. Gore, 2016 ONSC 6831 at para. 6. e. The party seeking the order will be obliged to demonstrate that the balance of convenience favours him or her: West v. West, (1982), 1982 4665 (ON SC), 28 R.F.L. (2d) 375 (Ont. H.C.); Campbell v. Campbell, (1979), 1978 3083 (ON SC), 6 R.F.L. (2d) 392 (Ont. H.C.); Gore v. Gore, supra, at para. 6. f. In determining the balance of convenience, “unpleasantness and inconvenience” will not be a sufficient ground to order a spouse from his or her own home: Tweed v. Tweed, [1990] OJ. No. 1440 (Ont. H.C.). In such a case, there is a heavy onus on the moving party: Rofail v. Naguib, 2012 ONSC 931, additional reasons at 2012 ONSC 2117, 2012 ONSC 2117 (Sup. Ct.): Gore v. Gore, supra, at para. 6. g. The violence, as contemplated by s. 24(3)(f) must be such that it makes the continuation of joint cohabitation in the matrimonial dwelling impractical: Menchella v. Menchella, supra: Gore v. Gore, supra, at para. 18. h. Violence is not limited to physical abuse but can include emotional abuse and intimidating conduct: Meetke v. Meetke, 2011 ONSC 5582, at para. 26. i. As stated in Hill v. Hill, the sense and purpose of the Family Law Act, which is a remedial statute and hence to be liberally construed, must surely include in the meaning of violence that violence causing injury to a spouse can be achieved by words and deeds, and it is not restricted to the violence which can be achieved solely by physical abuse: Hill v. Hill, (1987), 1987 8348 (ON SC), 10 R.F.L. (3d) 225 (Ont. Dist. Ct.) at para. 28; Kutlesa v. Kutlesa, 2008 CarswellOnt 1657 at para. 28. j. Violence contemplates that spouses may need to be protected from serious injury or harm which can arise even without physical hitting: Kutlesa v. Kutlesa, supra, at para. 31.

[25] Pursuant to section 24(3) FLA, the three applicable criteria in this case are the financial position of both spouses, the availability of other suitable and affordable accommodations and any violence committed by a spouse against the other spouse.

[26] Considering the contradictory evidence before me, I am unable to make any findings as to whether or not physical or emotional abuse has occurred between the parties. There is insufficient cogent evidence of violence to make it a determining factor in my decision. I therefore consider it a neutral factor at this time.

[27] I have considered the evidence regarding the parties’ financial positions, which given the lack of other suitable residences immediately available for either party through friends or family, has a significant impact on the availability of other accommodations.

[28] There is no evidence before the court with regard to what the cost would be of suitable accommodations for either party if one were removed from the matrimonial home. There is simply a request by Ms. Mignault that Dr. Lauzon pay $2,000.00 per month toward spousal support should she be removed from the home.

[29] While it is clear that Dr. Lauzon does have a great deal of debt, which includes notional income tax disposition of 26.5% for his RRSP’s and SDRRSP’s, he nonetheless has significant assets upon which he can realize in the short term.

[30] As discussed in greater detail in the spousal support section below, to help determine both parties’ financial positions, the court has reviewed their financial statements. Upon comparison of valuation date debts, and adding the notional income tax to the “today” column, Dr. Lauzon’s financial statement reflects a reduction of approximately $15,000.00 of his debt since separation. His assets have also increased in value. Comparatively, Ms. Mignault has not added any “today” information in her financial statement, but does not have substantial assets, or savings, and “undetermined” debts listed on valuation date.

[31] I accept that Dr. Lauzon is diagnosed with complex PTSD, and is experiencing symptoms of acute stress disorder which are adding to the symptoms of PTSD. I also accept that Ms. Mignault suffers from an adjustment disorder which is likely to lead to a resistant major depression if the stressors in her life are increased.

[32] I have considered both parties’ requests for exclusive possession of the matrimonial home, as well as Ms. Mignault’s request of mutual possession.

[33] The evidence shows, and both parties seem to agree, that residing in the matrimonial home together following their separation is causing them significant stress.

[34] Although each party have letters from doctors advocating that neither party be removed from the home, continued cohabitation appears to be to the detriment of both parties’ mental health.

[35] If this case were to involve children, the court would be inclined to consider if the children are suffering as a result of the continued cohabitation of the adults, such that an order for exclusive possession should be granted to one parent or the other. Here, the court is presented with two older adults suffering from substantial health issues. Their emotional and mental health is likely to be significantly impacted by the continued cohabitation and the resulting stress from same. Therefore, while there are no children to consider, this court is concerned with the detrimental effect continued cohabitation will have on the parties.

[36] The court is mindful of Ms. Mignault’s submission that the parties have not spoken to each other since December, 2017. However, there is clearly tension between the parties, particularly following Ms. Mignault’s guest staying in Dr. Lauzon’s bedroom / office which required his lock to be broken. Ms. Mignault indicated the door was locked out of spite and the office was routinely used as a guest room. Without cross examination of the parties, I am unable to determine if the actions taken by either party in this regard were innocent or malicious. Regardless, the situation in which the parties find themselves is clearly intolerable. I am persuaded that continued shared use of the home is a practical impossibility.

[37] I find, based on the above, that there are compelling reasons to make an interim order for exclusive possession the matrimonial home.

[38] I have considered that Dr. Lauzon is in a better position financially as his financial resources are vastly superior to those of Ms. Mignault. However, based on the letters from the treating doctors from both parties, I am persuaded that to remove Dr. Lauzon from the matrimonial home would be more detrimental to his health than to Ms. Mignault. Furthermore, I find that the balance of convenience weighs in favour of the Respondent.

[39] I find that Dr. Lauzon has met the statutory test for interim exclusive possession of the home. Conversely, I am not persuaded that Ms. Mignault has met her onus. Further, I do not find mutual possession of the home an appropriate resolution. Therefore, I grant exclusive possession of the home to Dr. Lauzon effective November 1, 2018 at 4:00 p.m.

[40] Ms. Mignault is permitted to remove her contents, particularly those which were kept in her bedroom, from the matrimonial home. If judicial direction is required on this issue, I invite counsel to submit lists in writing regarding any contested items. If need be, a date could be set through trial coordination to resolve this issue.

[41] I address Ms. Mignault’s financial predicament in the spousal support section below.

Issue 3 – Interim Spousal Support

[42] Subject to the outcome of the exclusive possession claim, Ms. Mignault requests spousal support in the amount of $2,000.00 per month commencing on the date when she must vacate the matrimonial home, or $1,200.00 per month toward her living expenses while remaining in the matrimonial home. She also seeks to impute income to Dr. Lauzon.

[43] Dr. Lauzon argues against the claims advanced, and seeks income be imputed to Ms. Mignault.

[44] Sections 30, 33 and 34 of the Family Law Act are applicable in this claim for spousal support. These sections set out the obligations of spouses to support themselves and each other, as well as the powers of the court to make a support order.

[45] Section 33 FLA sets out the purposes for support and how to determine the amount:

33 (1) A court may, on application, order a person to provide support for his or her dependants and determine the amount of support.

(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;

(k) Repealed: 1997, c. 20, s. 3 (3).

(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,

(v.1) Repealed: 2005, c. 5, s. 27 (12).

(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.

[46] The Supreme Court of Canada in Bracklow v. Bracklow, 1999 SCC 25, [1999] S.C.J. No. 14 (S.C.C.), set out that there are three bases for entitlement to spousal support, being compensatory, contractual or non-compensatory support: Lamb v. Watt, 2017 ONSC 5838, at para. 19.

[47] At the end of the day, courts have an overriding discretion and the exercise of such discretion will depend on the particular facts of each case, having regard to the factors and objectives designated in the Act: Moge v. Moge, 1992 SCC 25, [1992] 3 S.C.R. 813, (p. 866); Bracklow v. Bracklow, supra, at para. 53.

[48] Both parties ask that I impute income to the other. Like in Cardoso v. Cardoso, 2013 ONSC 5092, while this case is about spousal support, I find it beneficial to look to section 19(1) of the Child Support Guidelines, which provides helpful guidance about imputation of income (see Cardoso v. Cardoso, supra, at para 34). In particular, sections 19(1)(a), (e), and (f), which include intentional under-employment or unemployment, when the spouse’s property is not reasonably utilized to generate income, and when the spouse failed to provide income information.

[49] The leading case on imputation of income is Drygala, where the Court of Appeal set out a three-part test to determine whether income should be imputed: (1) Is the spouse intentionally under-employed or unemployed? (2) If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs? (3) If the answer to question #2 is negative, what income is appropriately imputed in the circumstances? Drygala v. Pauli, (2002), 2002 41868 (ON CA), 61 O.R. (3d) 711 (Ont. C.A.), at para. 23. “Intentionally” means a voluntary act, such as when a party chooses to earn less than what they are capable of earning: Drygala, supra.

[50] Although the Court in Drygala dealt with imputing income for the purposes of child support, this test is equally applicable to claims for spousal support as determined in Crowe v. McIntyre, 2014 ONSC 7106 (Ont. S.C.J.): Pey v. Pey, 2016 ONSC 1909, at para. 84.

[51] Determining whether or not to impute is a discretionary remedy available to the court. A rational and solid evidentiary basis is required for the court to impute income (see Homsi v. Zaya, 2009 ONCA 322, 65 R.F.L. (6th) 17 (Ont. C.A.)).

[52] Ultimately, the onus is on the moving party to establish a prima facie case that income should be imputed. If the onus is met, then the onus shifts to the responding party to defend its position. (see Charron v. Carrière, 2016 ONSC 4719 (Ont. S.C.J.), at 66)

[53] At this time, both parties’ incomes are extremely modest. Though from August 2017 until April, 2018, Dr. Lauzon received disability insurance benefits of $5,000.00 per month, since then he earns $1,233.55 per month from CPP and OAS, while Ms. Mignault earns $507.00 per month from CPP.

[54] As previously mentioned, Dr. Lauzon argues against spousal support being payable by him. His position is that Ms. Mignault is not entitled to spousal support. He suggests that should the court determine there is entitlement, then he has no ability to pay. Further, he advances that income of $30,000.00 should be imputed to Ms. Mignault, which would have the effect of greatly minimizing quantum payable if so ordered. To support his claims, Dr. Lauzon indicates:

a. Based on his current annual income of $14,754.00, he is below the established floor in terms of income levels provided for in the SSAG’s. b. Should income be imputed to him, it should be imputed to both of them. If support is ordered, given the absence of other factors, he submits that it should be mid-range support. c. Ms. Mignault is capable of working and has no known health problems that would impede her ability to work. She has a college (CEGEP) diploma and an abundance of experience in her field as a make-up artist. She has also been a script writer. d. Ms. Mignault has sold several paintings in the $500.00 to $1,400.00 range which she has not declared as income. e. She stands to inherit when her father’s spouse dies. f. He denies ever promising Ms. Mignault that she never had to work. He indicates that she has refused to work throughout their marriage, despite his insistence, his support of her art work, and his support of her desire to grow and sell food year-round. g. Both Dr. Lauzon and Ms. Mignault were shareholders of the medical corporation, and Ms. Mignault was involved not only in major decisions, but was aware of the dividend income split throughout 2012 to 2017. She has access to the joint account where the dividends were transferred. h. Ms. Mignault’s efforts to find employment were minimal, and disclosure of same has not been provided.

[55] In support of her claim for spousal support, Ms. Mignault advances the following:

a. While it is not contested that Dr. Lauzon’s health issues preclude him from being able to work, income of $33,000.00 should be imputed to him, which is equivalent to approximately 1/20 of his RRSP’s being liquidated per annum. Her income should remain the same. b. She has made efforts to find employment. She is 64 years old, and is a high school graduate. She has seen counselors at JobZone. She does not have the education or training to work at jobs other than service type jobs, which she is unable to do for medical reasons. Service industry jobs require long hours of standing or sitting. She has arthritis in her knees, hips, feet and back which prevent her from being able to do these types of jobs. c. Further, she has waged a lifelong battle with long periods of severe depression and anxiety, and has ADHD. While Dr. Lauzon contests that Ms. Mignault suffered depression during their marriage, he acknowledges that she has previously suffered from same, and also confirms his knowledge of Ms. Mignault having ADHD. d. Prior to residing together, Dr. Lauzon assured her that she would no longer be required to work. In support of this, she has provided affidavit evidence from her supports, which assert knowledge of this assurance. This is denied by Dr. Lauzon. e. Due to the move to Williamstown, Ontario to reside with Dr. Lauzon, it would have been impossible for her to continue to work in Quebec. She has not worked since approximately 2011. f. While still residing in the matrimonial home with Dr. Lauzon, she is incurring credit card expenses of between $1,100.00 and $1,200.00 per month. Dr. Lauzon does not deny these expenses and admits he has been paying an average of $1,600.00 per month on Ms. Mignault’s behalf. However, he indicates that the expenses are being paid from his line of credit and that it is unsustainable for this to continue.

[56] Dr. Lauzon’s financial statement dated August 14, 2018 shows the following:

a. On valuation date, he had RRSP and SDRRSP’s worth approximately $620,350.00. On today’s date, he has $629,802.56 of RRSP’s and SDRRSP’s. b. In 2017, he earned $63,748.00. c. His current monthly income is $1,247.37, yet his total monthly expenses are $5,053.60 ($60,643.20 annually). In reviewing his April 20, 2018 financial statement, his monthly expenses were $9,590.75 ($115,089.00 annually). Despite this, his debt has not increased since either date of separation nor from the date of his last financial statement. d. Dr. Lauzon has admittedly acquired two campers, allegedly on behalf of his son. Though his evidence is that he has been repaid for one camper, the debt for the other is not shown on his financial statement.

[57] A review of Ms. Mignault’s financial statement dated June 14, 2018 indicates that she has no significant savings, securities or pensions or other property upon which she can realize to sustain herself independently for any length of time.

[58] While Dr. Lauzon does have $627,371.00 of RRSP’s at valuation date, which includes $272,021.00 of his mortgage receivable, he is not currently drawing down on these RRSP’s, and does not intend to until December 20, 2019, when he turns 71 years old. He will be required at that time to convert his RRSP to a RIF and withdraw 5.28% for the first year and an escalating rate in subsequent years. He advances that it has always been his plan to defer withdrawal until he attains the age of 71, and does not plan to withdraw a greater rate than the 5.28%. This percentage would create an annual income of $33,125.00. If required to withdraw RRSP funds prior to age 71, he will not take more than this amount.

[59] I am alert to the line of cases which indicate it is more appropriate to leave the issue of imputing income to the trial judge, rather than consider same at an interim motion, i.e.: Lamb v. Watt, 2017 ONSC 5838, at para 34. Despite this, I find that there are compelling reasons requiring an interim determination of this issue pending trial.

[60] The evidence shows that since separation, despite a declared income of $1,233.55 per month from CPP and OAS, Dr. Lauzon has been paying off Ms. Mignault’s credit card bills of approximately $1,600.00 per month. Though he advances that this is not sustainable and the expenses are being paid from his line of credit, a review of his financial statement does not support his assertion. Dr. Lauzon has no greater debt now than at valuation date.

[61] I have considered Dr. Lauzon’s submissions regarding withdrawing monies from his RRSP, and his prior intentions for when he expected to draw down on his RRSP’s. Due to medical necessity, Dr. Lauzon had to close down his medical practice earlier than intended, thereby significantly reducing his income. His financial statement reflects ongoing monthly expenses considerably above his income without a corresponding increase of debts. It is unfathomable that Dr. Lauzon would have intended the current financial predicament upon which he finds himself. Further, it is clear that Dr. Lauzon contemplated that his income would be supplemented by RRSP income when he reached 71 years of age.

[62] Dr. Lauzon has significant RRSP / SDRRSP assets from which he can generate income. He intended to use this asset to generate income in December, 2019. I find it is reasonable to require him to use income generated by his RRSP principal earlier than what he originally envisioned. As such, I therefore find it is appropriate impute investment income of $33,000.00 to Dr. Lauzon.

[63] It is alleged that Ms. Mignault is intentionally unemployed, and that she has not provided information regarding the sale of her artwork. Dr. Lauzon did not provide any compelling evidence of any undeclared revenue earned by Ms. Mignault.

[64] While Dr. Lauzon submits that there are multiple opportunities for work in the cosmetic industry and Ms. Mignault could teach courses, be a sales representative, work in a spa, or in a cosmetic department of a pharmacy, the evidence in support of the available jobs in Cornwall through the JobZone website (Exhibit C to the Respondent’s affidavit dated August 13, 2018) lacks sufficient details to determine suitability, availability and viability. Exhibit D to the Respondent’s same affidavit has more detail, but the jobs available are in the Montreal area, approximately 100 kilometers from the Applicant’s current residence in Williamstown, Ontario.

[65] I am not persuaded that Dr. Lauzon has met his onus for income to be imputed to Ms. Mignault. At this juncture, I am not convinced Ms. Mignault is intentionally under-employed or unemployed, and thus, I am not prepared to impute income to her. While she has an obligation to become self-supporting, I do not find nine months is sufficient time to achieve same, particularly given her age and that she has been out of the work force since approximately 2011. Further, her employment history appears to be principally in Montreal, Quebec. She has not resided there since marriage.

[66] In determining what, if any, spousal support is payable, I have reflected on the Spousal Support Advisory Guidelines (“SSAG’s”). The SSAG’s are not binding, but they are an important tool that should guide the courts in arriving at a sensible range of support. They are given a good deal of weight, as set out in the Court of Appeal in Fisher v. Fisher, 2008 ONCA 11.

[67] The Revised User’s Guide (“RUG”) to the SSAG’s was released in April, 2016. Professor’s Rogerson and Thompson state the following regarding its application to interim orders:

The Advisory Guidelines provide an exception for compelling financial circumstances in the interim period (see SSAG, 12.1). As Justice Martinson recognized in D.R.M. v. R.B.M., 2006 BCSC 1921, this exception is based on the recognition that the amount may need to be different—either higher or lower—during the interim period while parties are sorting out their financial situation immediately after separation. In many cases the exception is still not explicitly relied upon, although the circumstances warranting an award different from the SSAG range are taken into account.

The SSAG amount may be too low during the interim period, particularly in shorter marriages under the without child support formula or the custodial payer formula, where the amounts generated by the formula are relatively low. The interim exception may also cover cases involving hardship/inability to meet basic needs in the transitional period in the immediate aftermath of separation. There may thus be some overlap with the basic needs/hardship exception (SSAG, 12.7) and even the disability exception (SSAG, 12.4), but it is preferable to use the interim exception for short term, transitional needs.

[68] At section 11 of the SSAG and in the RUG, the “floor” of $20,000.00 is noted to be the annual gross payor income below which spousal support is not generally payable.

[69] At section 12, regarding Exceptions, the RUG states the following:

If the formula ranges seem to produce intuitively “wrong” outcomes for amount or duration, you should think about exceptions and go to Chapter 12 of the SSAG.

The SSAG formulas were devised for “typical” cases, to assist in their resolution. The Guidelines themselves are informal and advisory, which means that departures from the formulas can take place even if there is no listed “exception” in Chapter 12. When faced with unusual facts, some lawyers and judges try to jam them into the SSAG formulas anyway. Unusual facts demand a willingness to think “outside the formula ranges”, and even outside the listed exceptions.

12 (a) Compelling financial circumstances at the interim stage (SSAG 12.1)

This exception was discussed above in “Application to Interim Orders”. It should be one of the most commonly-used exceptions, always on the radar screen on any interim support application.

12 (i) Basic needs/hardship (SSAG 12.7)

This exception recognizes the specific problem with shorter marriages (1-10 years) under the without child support formula (and the custodial payor formula which is built around the without child support formula) where the recipient has little or no income and the formula is seen as generating too little support for the recipient to meet his or her basic needs for any transitional period that extends beyond the interim exception. The exception allows for awards higher in amount than the SSAG ranges, enough to meet basic needs, but does not allow for an extension of duration. This exception is intended to apply only where other exceptions—such as the interim exception, the illness and disability exception and the compensatory exception in short marriages—are not applicable and where restructuring does not provide an adequate solution. When this exception was recognized in the SSAG we contemplated a very narrow scope for its operation, and we thought it would arise mostly in bigger cities, where basic needs are most expensive. To date this basic needs/hardship exception has not been used very often and the majority of the cases where it has been used it have involved interim support and combined reliance on this exception and the interim exception [case law omitted]

[70] Section 19(e) of the RUG addresses the issue of retirement, and states the following:

(e) Living off capital and income-based guidelines

Eventually, as we get old enough, we all have to “live off our capital”, to draw down our capital resources to pay for our current needs, especially those without pensions. RRSPs have to be converted into RRIFs (Registered Retirement Income Funds) or annuities. Businesses and farms have to be sold. Interest from investments becomes insufficient to fund daily needs. As Leskun v. Leskun, 2006 SCC 25 reminded us, capital is part of “means” and can be the basis for paying spousal support.

This poses a problem for income-based guidelines like the SSAG. In effect, there are two steps to the SSAG analysis at this advanced stage, assuming entitlement: first, what income should be imputed to the spouses as reasonable withdrawals from capital in addition to whatever current income the spouses may earn; and, second, the formula calculation for amount, under the without child support formula.

[71] I am cognizant that at this interim stage, it is not necessary for me to determine if there is entitlement. I also need not conduct a full inquiry to determine to what extent either party suffered an economic advantage or disadvantage as a result of the relationship. The Trial Judge will conduct that inquiry.

[72] I have considered the objectives of a support order, as set out in the FLA. I note that no single objective set out in the FLA is paramount. I have also considered the SSAG’s and the RUG, as well as the relevant jurisprudence.

[73] As stated in Cardoso, supra, an interim support award is a temporary order only, and inevitably imperfect. It is meant to provide a “reasonably acceptable solution to a difficult problem until trial”: see Chaitas v. Christopoulos, 2004 ONSC 1407 per Sachs J; Cardoso v. Cardoso, supra, at para. 36.

[74] I am persuaded, on an interim basis, that Ms. Mignault has established a prima facie case for entitlement to spousal support on a needs and means based, non-compensatory basis at this time. There may also be a viable compensatory claim which will need to be explored further at trial.

[75] In determining quantum of spousal support payable, I have considered the following:

a. Ms. Mignault’s current income is based on CPP, which is $507.00 per month, plus the sale of her art work, being approximately $1,000.00 per year. b. The length of the relationship (six years). c. Ms. Mignault is 64 years old. d. Ms. Mignault’s financial statement, her budget, and her assets. e. Ms. Mignault’s need to secure suitable accommodations given my above determination regarding exclusive possession of the matrimonial home in favour of Dr. Lauzon. f. Ms. Mignault’s standard of living during the relationship. g. Ms. Mignault’s health issues, which includes her adjustment disorder and ADHD. h. Ms. Mignault’s obligation to become self-sufficient and her capacity to contribute toward her own support, including that the parties separated approximately nine months ago. i. Ms. Mignault’s current ability to become self-sufficient. Prior to marriage, Ms. Mignault worked in Montreal, Quebec, for 32 years in the film industry as a make-up artist. She has been out of the work force since 2011, and has resided in Williamstown, Ontario since then. j. Dr. Lauzon’s ability to pay, including his means and assets.

[76] In reviewing the SSAG Revised User Guide, I note that in Wilson v. Marchand, 2007 ONCJ 408, without having the benefit of the Support Mate calculations in determining quantum, Justice Zisman awarded an amount that likely resulted in the recipient receiving over 50% of the parties’ Net Disposable Income (“NDI”).

[77] I am aware the authors of the SSAG’s prefer in cases such as this one that I stay within the Guidelines, take the “No Exception” approach, and fix an amount that is within the appropriate range. However, after reviewing all of the evidence, I find that this is an exceptional case. I find there are compelling financial circumstances which permit me to go outside of the ranges, falling into the “interim” exception.

[78] As mentioned above, I am not prepared to impute income to Ms. Mignault at this time. Using the income figures Dr. Lauzon provided at Exhibit 1 to the motion, with income imputed to him of $33,000.00 and based on Ms. Mignault’s current income, the guidelines give a range for spousal support of $313.00 per month (low), $365.00 per month (mid), and $417.00 per month (high). If the court were to order 50 percent NDI, then spousal support would be $1,832.00. If Dr. Lauzon were to pay support of $1,600.00 per month, as he has since separation, then the NDI would be 54.2 percent / 45.8 percent.

[79] I have considered that Dr. Lauzon has financial resources available to him which he should be drawing upon in order to alleviate the economic consequences to both parties following the marriage breakdown. Further, I have considered that since separation, he has had the ability to pay an average of $1,600.00 per month toward Ms. Mignault’s expenses without any further debt being listed on his sworn financial statement. I find this ability to pay persuasive.

[80] In the short term, on an interim basis without prejudice to either party to argue differently at trial without needing to demonstrate a material change in circumstances, I find that Ms. Mignault should be receiving an amount greater than what would be provided for if I stayed within SSAG ranges.

[81] I find it is reasonable, on an interim basis, to order Dr. Lauzon to pay spousal support to Ms. Mignault in the amount of $1,600.00 per month, commencing September 1, 2018. This provides Ms. Mignault with 45.8 percent of the parties’ Net Disposable Income, and Dr. Lauzon with 54.2 percent after income has been imputed to him.

Disposition

[82] The Respondent shall have exclusive possession of the matrimonial home municipally known as 5857 Glen Brook Road, Williamstown, Ontario, effective November 1, 2018 at 4:00 p.m., until further Order of this court, or written agreement of the parties.

[83] Ms. Mignault is permitted to remove her personal contents, particularly those which were kept in her bedroom, from the matrimonial home.

[84] If the contents cannot be agreed upon, then counsel may submit lists and argument, in writing, regarding any contested items. If need be, a date can be set through trial coordination to resolve this issue. Counsel are to indicate if further discussion shall be heard in conference or motion format.

[85] On an interim basis, the Respondent Husband shall pay spousal support to the Applicant Wife in the amount of $1,600.00 per month, commencing September 1, 2018 until further Order of this court or written agreement of the parties.

[86] The parties may make written submissions regarding costs. Submissions shall not exceed 3 pages, excluding bills of costs, offers to settle and case law. The Husband’s shall be delivered by October 9, 2018, and the Wife’s shall be delivered by October 30, 2018, with five days to reply by the Husband.

Madam Justice Hélène C. Desormeau Released: September 17, 2018