Court File and Parties
COURT FILE NO.: FC-18-1198
DATE: 2019/08/02
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Stephen Anthony Barber, Applicant
AND
Mary Teresa Edwards, Respondent
BEFORE: D. Summers J.
COUNSEL: Jeremy Dolgin, for the Applicant Senayit Belay, for the Respondent
HEARD: March 12, 2019
ENDORSEMENT
Introduction
[1] The applicant father, Mr. Barber, brings this motion for temporary spousal support under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). He asks that support payments commence effective June 2018.
[2] The respondent mother, Ms. Edwards, opposes the claim and brings a cross-motion for child support for their son, Derek, including s.7 expenses effective October 2018. She also asks that the court impute annual income to Mr. Barber of $44,989.
[3] At the outset of the hearing, Mr. Barber advised of his consent to pay interim child support and s. 7 expenses commencing June 2018 with the exception of those claimed in relation to Derek’s therapy dog. He agreed to base both child and spousal support on annual income of $30,000.
Background
[4] The parties cohabited for 22 years between 1994 and May 15, 2016 when they separated. They were married on July 19, 2003.
[5] Mr. Barber and Ms. Edwards have three children. The eldest, Ashley, is Ms. Edwards’ child from a prior relationship. She was 4 years old when the parties moved in together. When they separated, she was living on her own and independent. Their other children, Dakota and Derek, were born August 22, 1995 and June 19, 2000 respectively. The youngest, Derek, lives with his mother in the matrimonial home. Mr. Barber has lived with his parents since separation.
[6] Mr. Barber worked throughout their relationship, first as a counsellor with Therapeutic Educational Living Centers and then with the Salvation Army Treatment Centre until 2013 when he was laid off. He worked the night shift from 9:00 pm until 9:00 am on 2 day/2 day rotation. Between 1999 and 2013, his annual earnings grew from $23,000 to approximately $45,000.
[7] After 2013, Mr. Barber did not work again until June 2018 when he had a brief four-month period of employment at minimum wage. Later in 2018, he obtained a position in the security field subject to completing the necessary certifications. By mid-February 2019, he was working. His hours are not guaranteed hours, but he anticipates 30 to 40 hours per week at an hourly rate ranging from $14 to $15.67. He translates this into earnings between $25,000 and $28,000 annually.
[8] Ms. Edwards is a lawyer. She was called to the bar in 2001 and worked with the federal government until 2010. After that she was employed by the Native Woman’s Association of Canada (NWAC) until 2015 where her salary was $96,000. She did not work again until February 2017 when she obtained her current position with the Legacy Hope Foundation. Her annual income is now $100,000. She also earns $799 from teaching.
Is Bella the dog a s. 7 expense?
[9] Ms. Edwards describes Derek’s dog, Bella, as a therapy dog. She claims she spends $700 per month to cover the cost of Bella’s food, veterinarian needs and kennel costs. She wants Mr. Barber to pay his proportionate share under s. 7 of the Child Support Guidelines, SOR/97-175.
[10] Mr. Barber contests Ms. Edward’s claim saying there is no medical evidence to bring these expenses within s. 7.
[11] Section 7 states,
s. 7. (1) - In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:
(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;
(b) that portion of the medical and dental insurance premiums attributable to the child;
(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;
(d) extraordinary expenses for primary or secondary school education or any other educational programs that meet the child’s particular needs;
(e) expenses for post-secondary education; and
(f) extraordinary expenses for extracurricular activities.
[12] It is not disputed that Derek suffered from a drug addiction or that he has now been sober for over two years. Nor is it disputed that he continues to struggle with poor mental health including depression and anxiety.
[13] Derek filed an affidavit on this motion. He confirms his sobriety, his illness, the fatigue he experienced from his last medication, his desire to return to school and the importance of the support he gets from his mother and his dog, Bella.
[14] I do not doubt that Bella brings comfort and support to Derek, however, not every extra expense incurred by a parent for a child falls within s. 7 of the Guidelines. To be considered a shareable cost, it must fall within the list of enumerated expenses. The only category that may apply here is that of health-related expenses under (c). However, as Mr. Barber points out, there is no evidence from any of Derek’s health care providers to indicate that Bella is a health-related expense necessary to his best interests. As a result, I decline to consider any portion of Ms. Edward’s dog related costs as a s. 7 expense.
[15] The other expenses sought by Ms. Edwards do fall within the section. As listed in her affidavit, these include Derek’s prescription drug, dental and counselling costs. I was not provided with the necessary evidence to determine the uninsured portion of these expenses, but as noted, Mr. Barber consents to share them in proportion to income. Accordingly, within fifteen days of the release of these reasons, Ms. Edwards shall provide Mr. Barber with proof of the expenses and any related insurance reimbursement received along with her calculation of the amount she claims he should pay from June 2018 to the present. If the parties cannot resolve this issue within fifteen days after that, I may be spoken to.
Should income be imputed?
[16] Ms. Edwards asks the court to impute annual income to Mr. Barber of $44,989. That was his line 150 income on his 2012 income tax return. When his employment ended in 2013, he received severance of $45,000. According to Ms. Edwards, it was their plan that he would take a year off, but she says he then became lazy, complacent and refused to return to work. She claims that his decision to remain unemployed after separation in 2016 was voluntary and unreasonable in the face of his obligation to support his children and himself. She further claims that he is currently under-employed and intentionally pursued employment unrelated to his prior experience.
[17] Mr. Barber says that having only a grade 9 education and a criminal record for mischief from 1988 made it difficult to find work after being laid off in 2013. He deposes that he became depressed and that impacted his energy and his drive to look for work. He says his current employment represents what he could reasonably obtain.
[18] Section 19 (1)(a) of the Guidelines allows the court to impute income to a spouse in an amount that it considers appropriate in the circumstances where the spouse is intentionally under-employed or unemployed unless the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse.
[19] The leading case under s. 19(1)(a) of the Guidelines is Drygala v. Pauli, 2002 41868 (ON CA). The issue in that case involved imputing income for child support, however, the same analysis guides the court in spousal support claims. In Drygala, the Ontario Court of Appeal set out three questions to be answered when the court is deciding whether to impute income. The first determination required is whether the spouse is intentionally underemployed or unemployed. The onus of proof rests with the spouse making the claim. A finding of a specific intent to evade child support is not necessary nor is a finding of bad faith. Intentionally means voluntary. A payor spouse will be intentionally under-employed if he or she chooses to earn less than he or she is capable of earning. Whether the spouse’s employment status is voluntary and reasonable must be considered. See paras 23 to 36.
[20] If the spouse is found to be intentionally unemployed or underemployed, the next determination to be made is whether the spouse’s employment status is required by his or her reasonable education or health needs, or the needs of the child of the marriage. Here the onus of proof shifts to the unemployed or under-employed spouse. If he or she cannot prove that one of these exceptions applies, the court must then decide whether to exercise its discretion to impute income, and if so, in what amount. The exercise of the court's discretion must be grounded in the evidence and based on what is reasonable in the circumstances. The factors to be considered have been stated as age, education, experience, skills and health of the parent. See Drygali, paras. 38, 44 and 45.
[21] In support of her claim that Mr. Barber is under-employed and capable of earning more than his current job provides, Ms. Edwards relies on his income tax summaries for the years 2003 to 2012 inclusive. The most he earned during that period was $47,252 in 2009. After that the next highest amount was $44,989 in 2012.
[22] Ms. Edwards also claims that Mr. Barber is hiding income. After he lost his job in 2013, the family started a business called Dakota’s Apparel. The enterprise was seasonal and involved the sale of clothing at powwows and other indigenous events. According to Mr. Barber, the annual earnings were less than $10,000 in those years. It appears from an email written by Ms. Edwards that this business may have been about Dakota and a way for her to earn enough money to pay her way through university with Mr. Barber helping and working alongside her. Following separation, in 2016 and 2017, Mr. Barber continued with the business but says that he only earned approximately $1000 each year after expenses. Why profits were so much lower, he does not say. Ms. Edwards alleges that he is hiding business income but does not offer any proof in support of this claim.
[23] Mr. Barber says that the evidence of his past employment earnings is old and little more than a “once upon a time” account of what he once earned and are unrelated to what he can earn now. He also argues that imputing income is an issue for trial and should not be decided on a motion where the evidence is limited and untested. See Lamb v. Watt, 2017 ONSC 5838, at para. 34. Aside from saying that he received a pardon in September 2018 for his 1988 criminal conviction, he offered no explanation for his decision to pursue a job in the security field and not in the area of his previous employment. He did not provide proof of any job searches and submits that is because he only seeks support commencing June 2018 by which time he had a job. Similarly, he says he did not provide medical evidence of depression because he is no longer depressed.
[24] There are, indeed, cases where income has been imputed on an interim basis, however, I am not satisfied that it is appropriate to do so here. Ms. Edwards has not persuaded me that Mr. Barber is intentionally underemployed at present. He did not leave his prior employment voluntarily albeit that was six years ago. At the time, it was agreed that he would take the next year off. Why he was not employed between separation and June 2018 will be an issue for trial to the extent that the parties’ pleadings seek both child and spousal support retroactive to the date of separation. However, Mr. Barber is working now. He expects to earn between $25,000 and $28,000 annually and agrees to base support on $30,000. I have no evidence upon which to conclude that there were better paying jobs available to him in 2018 considering his age, education and past experience. I, therefore, decline to impute income for purposes of temporary support.
Temporary spousal support
[25] Section 15.2 of the Divorce Act authorizes the court, upon application, to make an order for temporary spousal support as it thinks reasonable for the support of the other spouse pending a final order. Subsection (4) requires that the court consider certain factors when making an interim order. These factors include the condition, means, needs and other circumstances of each spouse including the length of time they cohabited, the functions each performed, and any order, agreement or arrangement relating to support for either of them. In addition, ss. (6) directs the court to consider the objectives of spousal support. In this regard, both final orders and interim orders should: (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[26] The principles applying to interim spousal support claims were summarized by Penny J. in Knowles v. Lindstrom, 2015 ONSC 1408, at para. 8:
It is well-established that interim support motions are not intended to involve a detailed examination of the merits of the case. Nor is the court required to determine the extent to which either party suffered economic advantage or disadvantage as a result of the relationship or its breakdown. These tasks are for the trial judge. Orders for interim support are based on a triable or prima facie case. An order for interim support is in the nature of a "holding order" for the purpose of maintaining the accustomed lifestyle pending trial, Jarzebinski v. Jarzebinski, 2004 CarswellOnt 4600 (Ont. S.C.J.) at para. 36; Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689, 2012 CarswellOnt 14841 (Ont. S.C.J.) at para. 24.
[27] Mr. Barber presents his claim for temporary support on both compensatory and non-compensatory, needs based grounds. He says he supported Ms. Edwards while she obtained her law degree and argues that he took more responsibility for the children and the household than she did throughout the relationship. He says the nature of his 2 day on, 2 day off work rotation along with his 12-hour night shift schedule from 9:00 pm to 9:00 am allowed him to care for the children on his days off and to be there for their after-school care on the days that he was working. He deposes that Ms. Edwards travelled a lot for work visiting over one hundred First Nation communities. When she was away, he says he was the children’s sole caregiver. In 1998/1999, he took a nine month leave from his employment to care for Ashley and Dakota. That was the year that Ms. Edwards articled with the Assembly of First Nations.
[28] Mr. Barber claims that he also helped to care for Ms. Edwards’ mother after she moved into their home in 2000. He says Ms. Edwards Sr. was recovering from cancer treatment at the time and then subsequently developed other medical conditions. Mr. Barber acknowledges that his mother-in-law helped with the children and meal preparation when she was able.
[29] Ms. Edwards claims that Mr. Barber exaggerates his role in the marriage. She says she was the primary caregiver and that she stayed at home for a total of six years when the children were young and then hired third party caregivers. She says Mr. Barber has significant anger issues such that she did not trust him to care for the children on his own for long periods. She denies that she travelled as much as alleged. As a First Nations person she says she had visited at least forty communities before they met. She admits that she travelled to approximately thirty-five communities during her articling year but claims she was not away as long as Mr. Barber suggests. She says her travel averaged a few days a month. To the extent that she travelled to First Nations communities during her employment with the NWAC, she claims that Mr. Barber and the children often came with her. I note, that her resume also references international work-related travel.
[30] When Ms. Edwards left her employment in 2015 it is not clear if she was laid off or whether she left her job to care for Derek and her mother. Derek’s drug abuse began in 2013. She claims that his struggle with drugs required her to take time away from work. He was in treatment several times and she says she was the only one to get up in the middle of the night to go to the police station or emergency ward when the call came. According to Ms. Edwards, Mr. Barber said he would not “waste his time” or “chase” after Derek. She also fell ill herself after leaving her employment in 2015.
[31] According to Ms. Edwards, Mr. Barber also overstates his role in helping to care for her mother. She says she provided the lion’s share of her mother’s care and that her siblings were also very involved. One sister paid for Meals on Wheels and another drove her to appointments and for groceries. Both sisters signed letters to this effect but neither provided an affidavit. I put no weight on their unsworn testimony.
[32] Ms. Edwards provides a different version of the role her mother played in their household. She says her mother was relatively healthy and active for the first 16 years that she lived with them and was very involved in caring for the home and raising the children. She claims her mother’s cancer was in remission and that she did not become terminally ill until post-separation.
[33] Mr. Barber filed numerous emails that either he sent to or received from Ms. Edwards. On their face, the emails indicate that he may have held a larger role in the care of the children and her mother than Ms. Edwards recalls. Also included was a lengthy email sent by Ms. Edwards to her siblings. In it she defended the care that their mother received in her home including the care that Mr. Barber provided. The emails also indicate that Ms. Edwards Sr. was ill and in need of care and attention well before separation.
[34] Ms. Edwards is adamant that Mr. Barber is capable of supporting himself and argues that he has not demonstrated need. She says he lives a “lavish” life at his mother’s home that has included trips to her condo in Florida each year. She claims Mr. Barber’s mother supports him and that she enables his lack of drive to be self-supporting. She also argues that the delay in his request for support is evidence that he does not have need.
[35] I do not accept these arguments. Ms. Edwards cannot avoid the obligation to pay spousal support by relying on the generosity of Mr. Barber’s mother. There is no obligation on his mother to assist in his support. The fact that he has been living with her and his step-father does not reduce his need for support. See Kereluk v. Kereluk, 2004 34595 (ON SC), [2004] O.J. 4337, 9 R.F.L. (6th) 385 (Ont.S.C.J.). Nor do I accept that a two-year delay after separation before commencing an application for spousal support implies a lack of need. Here, there is nothing excessive about Mr. Barber’s budget and he indicates that he has relied on loans from his parents to meet his living expenses including room and board. According to his financial statement, he owes them $30,888.05. Moreover, there is no evidence to diminish the extent to which Mr. Barber’s need may be related to the breakdown of the marriage.
[36] Ms. Edwards denies an ability to pay support. She says she had to support Derek on her own and borrow to keep the house afloat and pay joint debts, however, her financial statement does not indicate any joint debts except for the mortgage on the matrimonial home. Ms. Edwards also points to the increase in the mortgage payment from $1,600 to $2,400 per month as of February 2019. The increase was apparently the result of Mr. Barber’s refusal to sign a closed mortgage renewal. Here, I note the November 15, 2018 consent order of Master Fortier made at the case conference. That order directs the parties to obtain an appraisal of the matrimonial home at their mutual cost and if Ms. Edwards does not purchase Mr. Barber’s interest in the home, it is to be listed for sale by May 31, 2019. Neither party said whether the house had been appraised nor did Ms. Edwards say whether she had a plan to buy the house. She said only that her expenses leave her unable to pay spousal support. Moreover, she anticipates she will soon be undergoing heart surgery and living on the reduced income that she will receive from her disability insurer.
[37] I find that Mr. Barber has established a prima facie case for spousal support. His evidence is “sufficient to establish a fact or raise a presumption unless disproved or rebutted. A prima facie case is established if a party produces enough evidence to allow the trier of fact to infer the fact in issue and rule in the party’s favour.” See Bridge v. Laurence, 2016 ONSC 5057, at para. 20 citing (Black’s Law Dictionary, 9th ed. sub verbo “prima facie case”). There are compensatory aspects to Mr. Barber’s evidence regarding his role within the marriage as well as non-compensatory aspects related to the economic consequences of the marriage breakdown. In the latter years of the marriage, he was either unemployed or earning less than half of what Ms. Edwards earned. In this regard, I am mindful of Supreme Court of Canada’s statement that a non-compensatory support entitlement may arise from the “mere fact that a person who formally enjoyed inter-spousal entitlement to support now finds himself or herself without it. See Bracklow v. Bracklow, 1999 715 (SCC), [1999] S.C.J. No. 14, at para. 41. The strengths and weaknesses of each party’s position will be examined and tested at trial. For now, I am satisfied that Mr. Barber has established a triable case.
[38] I am also satisfied that Ms. Edwards has the ability to pay spousal support. She earns $100,799 annually. Her expenses are considerable but upon review, I note some adjustments that are necessary or possible. For instance, Ms. Edwards’ CPP and EI are overstated by $194.38 each month. She also indicates a $400 car loan or lease expense per month, but the only vehicle noted on her financial statement is an 11-year-old van with a value of $500. I also find there is room to temper the $700 monthly expense claimed for Bella the dog. A review of the receipts filed indicate substantial kennel costs. No evidence was provided to say why those costs were incurred or necessary. Finally, the $800 increase in the mortgage payment deserves attention. There was no evidence of any effort to contact the mortgagor to investigate what option might exist to reduce the monthly payment. Nor did Ms. Edwards provide evidence of any steps taken toward purchasing Mr. Barber’s interest in the house or, alternatively, allowing it to be listed for sale. Based on Master Fortier’s order, one or the other must happen. The high cost of inaction on that front should not be a basis upon which to argue inability to pay spousal support.
[39] Based on Ms. Edward’s annual income of $100,799, Mr. Barber’s income of $30,000, his child support payment for Derek of $256 per month and the custodial payor formula under the Spousal Support Advisory Guidelines (SSAG), the range of support indicated is from $1,534 to $2,045 with the mid-point being $1,789 per month. Based on these facts and for the reasons given above, I find temporary spousal support of $1,550 per month to be reasonable in the circumstances. If Ms. Edwards’ income is reduced as anticipated by reason of her heart surgery and the parties are unable to agree on the amount of support to be paid during that time, I will remain seized to deal with that issue only.
[40] Spousal support shall commence August 1, 2018 in accordance with the presumption that Mr. Barber is entitled to support from the time he gave notice of his claim. See Knowles v. Lindstrom at para. 30, citing Vanasse v. Seguin, 2008 35922 (ON SC), 2008 CarswellOnt 4265 (Ont. S.C.J.) at paras. 225 and 226. In the present case, the application was commenced in June 2018 but not served until July 18, 2018.
Retroactive child support for Dakota
[41] I address this issue briefly. Ms. Edwards’ notice of motion did not include a child support claim for Dakota, however, her affidavit addresses retroactive support for a period between May 2016 and the spring of 2017 when Dakota graduated from university. Aside from the dates of alleged entitlement, Ms. Edwards did not provide any evidence upon which to assess the claim. In any event, I find the issue is more appropriately addressed at trial along with the retroactive child support claim for Derek.
My Order
Commencing June 1, 2018, Mr. Barber shall pay child support to Ms. Edwards for Derek in the amount of $256.00 each month based on annual income of $30,000.
Commencing June 1, 2018, Mr. Barber shall pay to Ms. Edwards his proportionate share of the uninsured costs of Derek’s s. 7 expenses for medical, dental, prescription drugs and counselling. Based on Mr. Barber’s income plus spousal support and Ms. Edwards’ income less spousal support, he shall pay 36% of the cost and Ms. Edwards shall pay 64%.
Within 15 days, Ms. Edwards shall provide Mr. Barber with proof of all expenses and for which she seeks a contribution from June 1, 2018 forward along with proof of any reimbursement and her calculation of the total amount owed. If the parties cannot agree on the amount to be paid by Mr. Barber, I may be spoken to.
Commencing August 1, 2018, Ms. Edwards shall pay spousal support to Mr. Barber in the amount of $1,550 each month. If Ms. Edwards’ income is reduced by reason of her heart surgery and the parties are unable to agree on the amount of support to be paid during that time, I will remain seized to deal with that issue only.
I encourage the parties to resolve the issue of costs. If they are unable to do so, Mr. Barber may file brief written submissions within two weeks of the release of this endorsement. Ms. Edwards may file responding submissions within the following two weeks. Cost submissions are not to exceed two pages in length exclusive of Bills of Costs, supporting documents and any offers to settle.
D. Summers J.
Date: August 2, 2019
COURT FILE NO.: FC-18-1198
DATE: 2019/08/02
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Stephen Anthony Barber, Applicant
AND
Mary Teresa Edwards, Respondent
BEFORE: D. Summers J.
COUNSEL: Jeremy Dolgin, for the Applicant, Senayit Belay, for the Respondent
ENDORSEMENT
D. Summers J.
Released: August 2, 2019