Court File and Parties

COURT FILE NO.: FS-18-0023-00 DATE: 2019-05-28

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Anita Zsuzsanna Oja Christopher Arnone, for the Applicant Applicant

• and -

Leo Johannes Oja Self-Represented, for the Respondent Respondent

HEARD: February 28, 2019, at Thunder Bay, Ontario Madam Justice T. J. Nieckarz

Decision On Motion

[1] This is the Applicant (“Wife’s”) motion for interim spousal support in the amount of $1,900 per month. The Respondent (“Husband”) disputes the Wife’s claim, and takes the position that the support he is currently paying satisfies his obligations under the law. Specifically, the Husband is paying $400 per month to the Wife as a cash payment, $412 per month on account of joint debts and $180 on account of extended health care benefits, which the Wife benefits from. These are voluntary payments, without the benefit of an income tax deduction.

[2] The Wife also seeks an order extending the time for setting the matter down for trial for a further 18 months, to July 31, 2020. This request was not contested.

The Facts:

[3] The parties were married on September 24, 1983 and lived together continuously until their separation on February 17, 2017. They had one child together, who is now an independent adult.

[4] The Wife takes the position that the parties had a relatively traditional marriage. She states that the Husband was the primary income earner, while she was the primary caregiver for their child, and looked after the home. The Wife acknowledges having worked during the marriage, but states that her employment consisted of a series of part-time, and often low-paying positions. While the Wife has a Bachelor of Science degree (1982) and a Bachelor of Education degree (1983), she has not taught since 1996.

The evidence is that the Wife’s income in the past few years has been as follows:

2014 $15,506 ($4,380 employment income and the balance income splitting) 2015 $18,296 ($3,745 employment income and the balance income splitting) 2016 $32,954 ($5,650 employment income and the balance income splitting) 2017 $15,186 (employment income)

[5] The Wife states that she was able to earn a higher income in 2017 by working two jobs for a part of the year. The Wife states that she worked at International House of Tea, earning $6,256 in 2017. She also worked for ADA Studios Incorporated from July 2017 until June 30, 2018 when ADA closed the Thunder Bay location. However, the Wife’s T4 for 2017 indicates that her income from International House of Tea was $11,400.38 and her income from ADA was $3,785.66.

[6] The Wife states that she is currently employed by the International House of Tea, working two shifts a week. She deposes that she is guaranteed six hours per week at $16.00 per hour for a total estimated annual income of $5,000.

[7] The Wife claims to have sought more lucrative employment, but that her employment opportunities are limited by both her limited employment history and her mental health concerns.

[8] The Husband is currently undergoing aggressive treatment for cancer. He was a high school teacher before retiring in 2012. He is in receipt of pension income, which is not impacted by his illness. He also operates a business, of which the Wife was formerly the sole shareholder, which by both parties’ evidence appears to be significantly in debt.

[9] The parties agree that the Husband’s annual income for support purposes is approximately $55,000. There is some suggestion in the materials that the Husband may now also be in receipt of Canada Pension Plan payments in an unknown amount and rent from leasing the basement of the matrimonial home. Regardless, the Wife seeks interim support based solely on the Husband’s pension income.

[10] With respect to their financial circumstances, the Wife made an assignment in bankruptcy on February 1, 2018. She states that the bankruptcy was largely necessitated by the significant debt of the business, which was personally guaranteed by the parties. She claims that this debt was incurred by the Husband, without her knowledge. The Husband disputes this.

[11] The Wife discharged on November 2, 2018. Surviving the bankruptcy are the Wife’s RRSP’s with an estimated value of approximately $100,000, some household furniture and an older model vehicle.

[12] The Husband is currently living in the matrimonial home with his new partner and her children. He states that by virtue of the bankruptcy of the Wife, he has been left to pay significant joint debt. The Husband’s financial statement sworn February 22, 2018 suggests that the joint personal debt is approximately $20,000 while the business debt is just over $140,000. The Husband states that his payments for joint lines of credit are between $750 – $800 monthly.

The Positions of the Parties:

[13] The Wife takes the position that this is a straightforward case for spousal support. This was a long-term, and somewhat traditional marriage. Entitlement to support is on both a compensatory and non-compensatory (needs) basis.

[14] As indicated above, the Wife takes the position that her ability to earn income is limited largely to minimal wage employment. Her ability to work more than she currently does is further limited by virtue of her mental health challenges. The Wife has filed correspondence from her treating psychologist, Dr. Barbara Coomes, dated January 30, 2019. Dr. Coomes outlines the treatment provided to the Wife, and her diagnosis of major depressive disorder with anxious distress and complex grief reaction. The Wife’s condition is largely attributable to a tragic situation involving her parents, but has been exacerbated by the separation and post-separation events.

[15] Overall, it is the opinion of Dr. Coomes that the Wife should not seek full-time employment. Dr. Coomes is further of the opinion that the Wife should maintain part-time work that she is familiar with, as this provides a healthy distraction for her.

[16] In light of the foregoing the Wife seeks support based on an income for the Husband of $55,000, an income for the Wife of $5,000 and the Spousal Support Advisory Guidelines. The Wife states that the range of support is $1,562 (low) - $1,823 (mid) - $1,943 (high). She states that the compensatory factors, combined with her need and the Husband’s ability to pay dictate support payable at the high end of the range in the amount of $1,900.

[17] The Husband, on the other hand, makes the following arguments against the support claimed by the Wife:

1. That the Wife is underemployed and an income should be imputed to her equivalent to full-time minimum wage.
2. That the length of the relationship is not as claimed by the Wife, but rather the parties ceased cohabiting as Husband and Wife in 2007. The Husband relies on four criteria that he claims to be used by his pension board for determining whether someone is an “eligible spouse”. These criteria include whether the parties meaningfully share a social life, a conjugal life, a financial life and regular meals. The Husband states that none of these things have happened since 2007.
3. That he is currently paying all joint debts by virtue of the Wife’s bankruptcy. He states that these debts alone cost him $825 per month in payments, in addition to the $180 per month he pays on account of an extended health care benefit plan, on which the Wife was a dependent. He claims that a significant portion of the debt of the parties was incurred to pay living expenses while the Wife’s father was living with them.
4. That the Wife has resources available to her in the form of RRSP’s, a significant gift from her father in the approximate amount of $200,000 and approximately $187,000 in income that she deposited into a secret account.
5. That he has a second family for which he is obligated to support. The Husband argues that he is responsible for significant monthly expenses for his current partner’s minor children, in the approximate amount of $1,330 per month. These expenses include a $650 RESP contribution, piano lessons, senior band trip expenses, gymnastic lessons, theatre classes and ski passes. He takes the position that these expenses are reasonable, and that he should be able to offer the children of this second relationship the same benefits that he offered to his child with the Wife.

[18] Overall the Husband takes the position that the Wife’s claim for support is driven more by resentment than need, and that despite her claims, the Wife has more than sufficient resources with which to support herself. He states that with an income imputed to the Wife the SSAGs suggest support of $764 per month at the low end of the range. He states that the low end of the range is more than appropriate. He does not attach his calculations to his materials and therefore it is not clear as to the exact income attributable to the Wife or the remainder of the range. For the purpose of these calculations the Husband indicates he utilized a separation date of 2007.

The Law:

[19] The Applicable principles with respect to interim spousal support are set out in Samis (Litigation Guardian of) v. Samis, 2011 ONCJ 273 (Ont. Ct.) at paras. 43-44. These principles may be summarized as follows:

1. The purpose of interim support is to provide income for dependent spouses until trial.
2. Interim support should only be awarded where a prima facie case for entitlement has been made out. In determining entitlement the court need not conduct a complete inquiry as to the economic advantages or disadvantages arising out of the relationship. This is to be left to the trial judge.
3. Provided that a triable case exists, at the motion stage, need and ability to pay take on a greater significance, while the need for a support recipient to achieve self-sufficiency is of less importance.
4. Interim support should be ordered within the range of the SSAGs unless exceptional circumstances dictate otherwise.

[20] Similarly, the Honourable Mr. Justice L. Kozak stated in Byerly v. Byerly, 1998 CarswellOnt 3649 (Gen. Div.) at para. 11:

11 The purpose of interim spousal support is to enable a dependent spouse, who is entitled to support, to live comfortably until the trial of the action. In determining the need for interim support, the Court should not attempt to take into account all of the factors that go into the making of a final order. This is better left to the trial judge. At this preliminary stage, the function of a motions Court judge is to consider the current needs of the moving party during the period of the Order and then determining whether the moving party requires interim relief and whether the responding party has the means to provide interim support.

Analysis:

[21] It is clear, based on the evidence before me on this motion that the Wife has made out a prima facie case for spousal support on both compensatory and non-compensatory principles. This was a long-term marriage, during which the Husband was the primary income earner and the Wife appears to have foregone a teaching career. While the parties disagree as to the reasons for this, the fact is that the Wife is the spouse who worked less outside of the home. The Wife has indicated that she assumed the majority of domestic and child-related responsibilities.

[22] Even if compensatory principles are not at play, the Wife is clearly in need of support and appears to have suffered a reduction in her accustomed standard of living, at least since August 1, 2017 when she vacated the matrimonial home so that the Husband and his partner could move in.

[23] The real issue between the parties is the appropriate amount of support. I find that $1,695 per month is the appropriate amount payable by the Husband on an interim basis, representing the high end of the range in the SSAGs based on an income for the Husband of $55,000 and an income for the Wife of $11,400.

[24] I find that on an interim basis the high end of the range is appropriate, and is necessary to address the Wife’s need. This was a long-term marriage. Even with the support ordered, the Wife is unlikely to approximate the standard of living she enjoyed prior to separation.

[25] Specifically with respect to the issues raised by the Husband, I have considered the following:

1. The Wife’s Income:

[26] One of the most significant disputes between the parties is the income attributable to the Wife for the purpose of interim support. As indicated above, the Husband seeks to have the equivalent of a full-time, minimum wage income attributed to the Wife. I do not agree. Having said this, I do not agree that an income of $5,000 as claimed by the Wife is appropriate either.

[27] With respect to the Husband’s claim for an imputing of income, this is an issue best left to determination by the trial judge who has the benefit of all of the necessary information with respect to the Wife’s skills and her mental health. The only information currently before me suggests that the Wife has not worked in a meaningful capacity for quite some time. She does appear to have intervening mental health challenges that her psychologist suggests limit her ability to work anything other than part-time. How long this will continue to be the case for, and what exactly is meant by “part-time” will need to be determined at trial. It is not appropriate for me to speculate at a motion, based on a limited evidentiary record, as to the Wife’s future work prospects.

[28] Similarly the evidence does not support the Wife’s claim that her income should be limited to $5,000 annually. Her 2017 income from her current employer alone was $11,400. While the Wife may only be guaranteed six hours per week from this employer, it is clear that she is able to work more. This level of income is still indicative of part-time employment and does not require the added stress and strain of the second job the Wife previously had. I also note that the Wife was suffering from mental health concerns during 2017 when she experienced her highest employment related earnings. Even though the Wife states that her 2017 income is not sustainable because of her mental health concerns, it appears to be within the parameters of what her psychologist believes she can do. I find that $11,400 is an appropriate income for the Wife.

2. The Length of the Relationship:

[29] The Husband has provided no factual basis for his claim that the separation of the parties occurred in 2007. If he wishes to continue to dispute the date of separation he will need to do this at trial and provide the proper evidentiary basis for it. His interpretation of his pension rules are simply not sufficient. I also note that the Husband’s Answer acknowledged that the Family History set out in the Application, which included a separation date of February 17, 2017, was correct. For the purpose of this motion, and the calculations of support under the SSAGs, I therefore find that February 17, 2017 is the appropriate separation date.

3. The Husband’s Payment of Joint Debts:

[30] It is acknowledged that the payment of joint debts by a support payor is a factor to be taken into consideration in the determination of the amount of support payable. It is further acknowledged that the Husband is paying the full amount of the joint debts by virtue of the fact that the Wife is now a discharged bankrupt and no longer has any legal obligation to pay them.

[31] While I have considered the debt payments by the Husband as a factor in this case, I do not find that these payments warrants a reduction in spousal support. When focused on the principles of need and ability to pay at an interim stage, I note the following:

a. While the Husband has monthly payments on account of lines of credit, he is living in the former matrimonial home without any other monthly mortgage payment. The Wife’s financial statement, on the other hand, reveals that she has a monthly rent obligation of $1,100, which exceeds the Husband’s monthly joint debt payments. b. The Father has a partner contributing to his household expenses, whereas the Wife does not. c. The Husband may have additional income in the form of Canada Pension Plan payments and/or rent from the basement of the matrimonial home to further supplement his income. This has not been a significant factor for me given the lack of evidence.

4. The Resources Available to the Wife:

[32] The only evidence before the court at this time is that the Wife has approximately $100,000 in RRSPs. I note that the Husband also shows RRSPs on his financial statement and has equity in the matrimonial home. Both parties will, no doubt, need to draw on their capital given their current financial circumstances, but in this case, this does not change the Husband’s obligation to provide interim support.

[33] Whether there are hidden bank accounts or the Wife has significant resources she has received from her family that alleviate her need will need to be an issue for trial. At the motions stage there is simply insufficient evidence for me to make any determination based on these allegations.

5. The Husband’s Second Family:

[34] In Fisher v. Fisher, 2008 ONCA 11 (Ont. C.A.) at para. 39, the court stated:

While courts generally recognize a “first-family-first” principle (which provides that a payor’s obligations to the first family take priority over any subsequent obligations), inevitably new obligations to a second family may decrease a payor’s ability to pay support for a first family. [Emphasis Added]

[35] As explained in Fisher, and also in Dean v. Dean, 2016 ONSC 4100 (Div. Ct.) at para. 83, an obligation to a second family must be considered in context. For example, was it a voluntary assumption of an obligation for a second family when the payor knows, or ought to have known, of his pre-existing obligation to his first family. Similarly the court should consider whether there is any evidence that the payor’s obligations to his first family will impoverish his second family.

[36] I note that in this case the Husband voluntarily assumed responsibility for his current partner and her children. I also note that the Husband’s financial statement indicates that his current partner does not work outside the home and does not earn any income, but that she contributes approximately $1,500 towards the household expenses. There is no evidence as to the source of those funds, or whether they derive from support being paid by the children’s biological father. There is also no evidence as to whether additional contributions are made by the children’s father to their activity expenses pursuant to s. 7 of the Child Support Guidelines.

[37] I further note that while the Wife has barely sufficient income to meet basic needs, the types of expenses the Husband wants the court to consider for his “second family” are more in the nature of luxuries (i.e. ski memberships) and savings (i.e. RESPs). I do not find that this is an appropriate case to reduce spousal support, as requested by the Husband on an interim basis, to account for his second family obligations.

Order:

1. Commencing February 1, 2019 and on the 1st day of each month thereafter, the Husband shall pay to the Wife temporary spousal support in the amount of $1,695 per month.
2. The Husband shall receive credit against any arrears of support resulting from paragraph 1 herein for the sum of $400 for each month commencing February 1, 2019 that he paid this amount to the Wife.
3. This Order is without prejudice to the right of either party at trial to seek a different amount of spousal support payable retroactive to the date of separation.
4. The time for this matter to be set down for trial is hereby extended for a further 18 months, to July 31, 2020.
5. If the parties are unable to agree on the costs of the motion, then the parties may make written submissions on costs as follows: a) The Wife shall deliver her claim for costs (if she is claiming costs), no later than June 11, 2019 at 4:00 p.m., failing which costs will be deemed to have been settled; b) The Husband shall deliver his response within two weeks thereafter; c) The Wife’s reply, if any, shall be delivered within one week of receipt of the Husband’s response; and d) The written costs submissions shall not exceed five typed pages, double spaced, plus copies of any offers, bills of costs, time dockets and relevant authorities.

[38] The standard terms with respect to the enforcement of support and interest shall be incorporated into the Order.

“Original signed by” The Honourable Madam Justice T.J. Nieckarz

Released: May 28, 2019