Court File and Parties

COURT FILE NO.: FS 17/239 DATE: 2018 October 12 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Johann Alfred Kurmis, Applicant AND: Shelley Ann Wright, Respondent

BEFORE: The Honourable R. J. Harper

COUNSEL: Sondra O. Gibbons, Counsel, for the Applicant Elizabeth S. Abraham, Counsel, for the Respondent

HEARD: October 10, 2018

Endorsement

Issues

[1] The Applicant, Johann Alfred Kurmis, (Johann) seeks an order for temporary spousal support from the Respondent, Shelley Ann Wright, (Shelley).

[2] Shelley seeks a temporary order for child support for the child of their union, namely Dylan Thomas Bruce Kurmis, (Dylan), born September 30, 2009. Dylan just turned 9 and primarily resides with his mother Shelley.

[3] Shelley seeks an order to allow her to amend her answer and claim to seek child support for Dylan. Johann does not object to the amendment, however, he seeks and order for costs in the amount of $500 to compensate him for the need to respond to the amended pleadings.

Agreement of the Parties

[4] At the outset of the motion the parties agreed to the following:

a. Johann’s income for support purposes is $24,000 per annum; b. Shelley’s income for support purposes is $119,732 per annum; c. Johann shall pay child support for the child Dylan in the sum of $192.00 per month; d. The parties shall exchange income tax returns and notices of assessment in each year in order to determine adjustment to the child support, if any, and; e. Shelley shall be allowed to amend her pleadings to claim child support. Costs with respect to that issue are reserved to the trial judge.

[5] This motion dealt with the issue of whether Johann is entitled to temporary spousal support and if so, in what amount?

Background

[6] Johann and Shelley cohabited for approximately 11 years from May of 2005 until they separated on May 5, 2016.

[7] Johann is 43 years of age and Shelley is 42 years of age.

[8] Johann worked throughout the period of cohabitation on a full time basis. He was a Graphic Artist at the Print Shoppe in Brantford Ontario. His annual income from that employment was approximately:

a. $36,363.00 in 2014; b. $36,833.00 in 2015. He was terminated from his employment at the Print Shoppe approximately one month prior to separation between the parties due to downsizing of that company. c. His income for 2017 from EI, part time employment at Lowes and collapse of an RRSP of $3,500.00 totalled $22,975.00. d. In 2018 he found employment at Promo Place in Ancaster, Ontario. His agreed upon income for this motion is $24,000.00.

[9] Shelley is the Director of Human Resources for the Catholic Children’s Aid Society of Hamilton. She had an annual income of:

a. $78,933.00 for 2014; b. $92,694.00 for 2015; c. $107,230.00 for 2016. d. Shelley’s income for 2018 is $119,732.00.

[10] Subsequent to the lay off from the Print Shoppe, in Brantford, Johann’s evidence is that he made realistic and continuing efforts to obtain employment and to upgrade his skills. He applied to numerous positions and set out a list of the positions he applied for. Shelley argues that other than his own statement, Johann does not provide any corroborating evidence that he actually applied to the prospective employers he said he did. Shelley did not provide any evidence to that that would cast doubt on Johann’s testimony in this regard.

[11] The court is often faced with evidence on interim motions that may be tested as the case moves through the system. However, at this stage, unless there is evidence that demonstrates inconsistencies of the evidence in and of itself, is patently unrealistic or obviously embellished, the court is left with unchallenged evidence. On the evidence before me I find that Johann did make realistic and continuous efforts to find employment. He did secure a part time job at Lowes, while also receiving employment insurance. He borrowed money to live on and he also cashed in a portion of an RRSP.

[12] Johann also enrolled in a course at second careers in order to make himself more marketable. He was given government allotment in the approximate amount of $25,000 in order to cover a certain level of living costs and tuition and other school related expenses. He stated that he did not finish this course as he could not continue to live at this level of income. He was forced to reside with his parents. He could not afford to get a place of his own. He could not pay his parents rent or contribute many of his accommodation costs. He borrowed from his parents in order to sustain what I find to be a minimal standard of living.

[13] Shelley submits that Johann is not entitled to support. She argues that he has not demonstrated any need. She further submits that he has not even met the threshold of a prima facie case of entitlement.

[14] One of the cases Shelley advanced for my consideration is the case of [Balayo v. Meadows, 2013 ONSC 4500]. This is a decision of Justice Broad. In that case, the father’s income was $79,600 per annum and he agreed to pay child support in the amount of $721 per month base on the income. The mother’s income was determined to be $28,860 per annum based on annualizing the amount she had made since she did not obtain employment until March of the year in question.

[15] Justice Broad agreed with the line of cases that the court is not required to conduct an in-depth analysis for standing and entitlement issues, but rather the party seeking support is only required to make out a good, arguable case for standing and entitlement before the court will assess support on the basis of the needs and means of the parties.

[16] Justice Broad found, on the evidence before him, that the mother did have good arguable case for standing and entitlement and that based upon his income the father had the ability to pay. However, he found that the mother did not establish need, at that time, and that her motion for support was premature. She was living with her parents and had no intention either in the near or moderately close in time, to move out of her parents’ home. As a result she did not have living expenses that demonstrated need. He stated at para 27:

…that there is no obligation on a recipient spouse to live with her parents and no obligation on the parents to contribute to her support and that the payor cannot avoid his support obligations by relying on the goodwill of the recipient patterns. However, it is noted that in the Kerluk case the recipient spouse led evidence that, although she had moved into her parents’ home on separation, she would like to be able to afford her own accommodation but was unable to do so without receiving spousal support. There is no such evidence presented in this case and indeed, there is no indication on the record that the Respondent has any present intention to move out of her parents’ home in the near to medium term.

[17] Justice Broad went on to state that if the circumstances change the Respondent could return to court. This case is distinguishable from the case before me. Johann’s evidence is that he wants to obtain a place of his own and the only thing holding him back at the present time is a lack of resources. I find that Johann does not have the present ability to live anywhere near the standard of living that the parties had at separation.

[18] In the case before me I find that Johann has shown a prima facie case of entitlement and that he has demonstrated need in the context of the standard of living that was created by the parties’ economic partnership over the 11 years of their cohabitation.

The Economic Social and Life Partnership of the Parties

[19] While the parties lived together, they had a joint bank account into which each of them put money from their employment. Shelley put in a larger amount and she paid the larger amount for living expenses of the family. Shelley consistently earned approximately three times the earnings of Johann.

[20] Johann claims that he did a lot of the home gardening and maintenance and repairs. According to Johann, both he and Shelley assisted each other with household chores and child care.

[21] Shelley asserts that Johann contributed anything of significance to the family including a lack of involvement with child care duties. I find that her evidence on this motion is overreaching in the extreme. Shelley’s evidence is replete with superlatives that describe Johann as “never” participating in household chores, child care and maintenance of the home. Her evidence describes his lack of involvement as “absolute”.

[22] A review of all of the evidence does not support her claim. It is inconsistent with the numerous representations she made in her text messages she sent to Johann over the time span from 2013 through 2016.

[23] Some of her text messages include the following:

a. Thanking Johann for taking Dylan to soccer; b. Thanking him for cutting the lawn and weed whacking; c. Thanking him for picking up Dylan from school; d. Thanking him for all the hard work he did on the deck at their home and getting more supplies and everything; e. Asking him to pick up Dylan from his parents’ home after he did the grocery shopping. His reply was that he would pick the child up in order for Shelley to concentrate on her studies; f. She thanked him on other occasions for getting up and getting Dylan to school; g. On one occasion in 2014, Shelley apologized for being so miserable. She stated that she was “not feeling herself and kinda down and stressed all the time.” She also expressed her appreciation for giving Dylan a bath and cutting the grass and stuff. She stated: “I know you have been trying and I don’t give you the credit for that stuff.” h. In 2016 she sent a message to Johann asking him to help Dylan with his math home- work. Johann replied that he had already helped him and “mission accomplished.”

[24] I find that Shelley’s credibility is lacking when it comes to her assertion that Johann was never involved in child care, activities and household chores and maintenance. On the evidence before me I conclude that Johann was an involved father and did participate in both the economic and social fabric of the family.

[25] Shelley’s affidavit in support of her motion and response to Johann’s motion, is replete with allegations of bad conduct on the part of Johann that included allegations of emotional and physical abuse. Her affidavits, however, consists more of allegations than any specific evidence of incidents of abuse. The only corroboration she provided is a statement from two witnesses who state that on one occasion they were present when Johann was drunk and smashed a glass.

[26] It is significant to note the one of her claims of violence asserted that Johann punched numerous holes in the wall of their home. The holes were so obvious that they required her father to attend at the home a patch the holes. There was no affidavit from the father and no reference to this by the witnesses she did file obtain affidavits from.

[27] It is also significant to me that the parties settled the custody and access claim by agreeing to joint custody with primary residence to Shelley. If Johann was abusive in the manner that Shelley claimed he was it would not be in the best interest of the child to have the joint custody arrangement that the parties agreed to.

Conduct

[28] The Family Law Act, section 33(8) provides:

Purposes of order for support of spouse

(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). R.S.O. 1990, c. F.3, s. 33 (8) ; 1999, c. 6, s. 25 (5); 2005, c. 5, s. 27 (9) .

Determination of amount for support of spouses, parents

(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. R.S.O. 1990, c. F.3, s. 33 (9) ; 1997, c. 20, s. 3 (2, 3); 1999, c. 6, s. 25 (6-9); 2005, c. 5, s. 27 (10-13).

Conduct

(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. R.S.O. 1990, c. F.3, s. 33 (10) ; 1999, c. 6, s. 25 (10); 2005, c. 5, s. 27 (14

In [Menegaldo v. Menegaldo, 2012 ONSC 2915],

[63] The phrase “course of conduct ” makes it clear that something more than an isolated event is required in order for section 33(10) to come into play. Nasmith, J. articulated the test to be used in determining whether section 33(10) applies in the case of Morey v. Morey [43] as follows:

1. The course of conduct must be exceptionally bad. In this regard, the court quoted the definition of “unconscionable conduct ” in Black’s Law Dictionary as being “ conduct that is monstrously harsh and shocking to the conscience.”
2. The conduct must be such as could reasonably be expected to destroy the relationship.
3. The conduct must have persisted in the face of innocence and virtual blamelessness on the part of the other spouse.
4. The commission of a so-called matrimonial offence is not necessarily sufficient by any means.
5. The party raising the issue of relevant conduct should be prepared to undertake that there is a bona fide belief that the test can be satisfied while acknowledging the risks of punitive costs if the Court finds on the whole of the evidence that the issue is frivolous.
6. The pleadings or subsequent written particulars should set out a summary of the conduct relied on to meet the test so that the Court can make a preliminary ruling based on the likelihood of the test being met.

[64] Quinn, J. commented on the stringent nature of the test to be met for conduct to fall within section 33(10) in Bruni v. Bruni , and emphasized that “it will be the rare case that meets the test.” [44]

[29] In this case I find that the conduct alleged has not been proven on the preponderance of the evidence. The allegations of misconduct play no part in my determination with respect to the issue of temporary spousal support.

Temporary Spousal Support

[30] In [Newcombe v. Newcombe, 2014 ONSC 1094], Justice Heeney considered some of the legal considerations for an award of temporary spousal support. He stated commencing at para 16:

[16] “Need” is a relative concept, and is assessed based upon the standard of living that the parties were accustomed to during the marriage: see [Gardner v. Gardner, 2008 ABQB 527, at para. 30] and authorities referred to therein. An interim spousal support award is not intended merely to “stop the bleeding” pending trial, as Ms. Oliver, for the Husband, submitted. In [Haney v. Haney], Smith J. put it this way, at paras. 50 – 51:

The purpose of an interim support award is to allow a dependant to maintain a reasonable lifestyle pending trial. Recently, however, there has been a movement towards a more generous level of interim support. A dependant is no longer expected to live modestly until trial. ( See: [Lebovic v. Lebovic (2001)], 15 R.F.L. (5th) 115 .)

To allow one spouse to live a lifestyle considerably better than the other for several months pending trial makes little sense particularly in cases on ( sic ) long term marriages. To properly address the objectives of the Divorce Act set out above, albeit on an interim basis, there must be a reasonable or fair balance achieved.

[31] In [Rick Maelbrancke v. Aprille Proctor, 2016 ONSC 1788] I had the opportunity to review some of the other cases that deal with a temporary support claim commencing at para 11:

THE LAW AND ANALYSIS RE: TEMPORARY SPOUSAL SUPPORT

[11] In [Samis v. Samis, 2011 ONCJ 273] the court dealt with the considerations in making an interim spousal support award:

In [Kowalski v. Grant, 2007 MBQB 235], 219 Man. R. (2d) 260 , 43 R.F.L. (6th) 344 , [2007] M.J. No. 386 , 2007 Cars­well­Man 422 (Man. Q.B.), the court set out the following principles in dealing with temporary spousal support motions :

1. Interim support is to provide income for dependent spouses from the time the proceedings are instituted until trial.
2. The court need not conduct a complete inquiry into all aspects and details to determine what extent either party suffered economic advantage or disadvantage as a result of the relationship. That is to be left to the trial judge.
3. Interim support is a holding order to maintain the accustomed lifestyle if possible pending final disposition as long as the claimant is able to present a triable case for economic disadvantage.
4. Interim support is to be based on the parties’ means and needs, assuming that a triable case exists. The merits of the case in its entirety must await a final hearing.

In [Robles v. Kuhn, 2009 BCSC 1163], [2010] B.C.W.L.D. 1935 , [2010] W.D.F.L. 1330 , [2009] B.C.J. No. 1699 , 2009 Cars­well­BC 2239 (B.C.S.C.), the court added the following considerations:

1. On interim support motions, needs and ability take on greater significance.
2. On interim motions, the need to achieve self-sufficiency is of less importance.
3. Interim support should be ordered within the range of the Spousal Support Advisory Guidelines, (Ottawa: Minister of Justice and Attorney General of Canada, July 2008), unless exceptional circumstances dictate otherwise.
4. Interim support should only be ordered where a prima facie case for entitlement has been set out.

[32] In this case the parties created a standard of living by utilizing the combined incomes of both Johann and Shelley. Since separation there has been a significant disparity in their income. That alone does not establish entitlement. However, when considered in light of the evidence relating to the parties financial interrelationship or what has often been referred to as their economic partnership, I find that Johann is entitled to spousal support based on his needs in the context of the standard of living the parties attained at separation.

[33] The Spousal Support Advisory Guidelines show a mid-range of support given the agreed upon incomes of the parties should be $1,162.00 per month. That amount does not allow Johann to meet all of the needs he set out in his projected budget. However, it is a significant contribution that will allow him to live close to the accustomed standard of living until trial.

Order on Consent

[34]

1. The Applicant shall pay child support in the amount of $192.00 per month commencing October 1, 2018;
2. The Respondent shall be allowed to amend her pleadings to claim child support. Costs related to this are reserved to the trial judge;

Order Not on Consent

[35]

3. The Respondent shall pay to the Applicant interim spousal support in the amount of $1,162 per month commencing October 1, 2018;
4. The parties shall exchange income tax returns and notices of assessment in each year in order to determine adjustment to the child support if any.
5. If the parties are unable to agree on costs within 30 days, they may arrange a time with the trial coordinator to make submissions as to costs.

The Honourable R. J. Harper Date: October 12, 2018