COURT FILE NO.: FS-19-009407
DATE: 20190827
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Svetlana Zahelova
Applicant
– and –
David Wiley
Respondent
COUNSEL:
Harold Niman and Richard Niman for the Applicant
Heather Hansen for the Respondent
HEARD: August 13, 2019
Shore, J.
[1] This is a motion brought by the Applicant, Svetlana Zahelova, for temporary spousal support in the amount of $50,000 per month, retroactive to April 1, 2019, without prejudice to future claims.
[2] The following are the issues to be determined on this motion:
a. Has the Applicant met her onus of proving that she has a prima facie case for an entitlement to interim spousal support?
b. If I find the Applicant is entitled to spousal support, what quantum of spousal support should be ordered on an interim basis?
[3] For the reasons set out below, I find that Applicant is entitled to temporary spousal support in the amount of $25,000 per month, commencing on April 1, 2019, and on the first day of each month thereafter.
Entitlement
[4] In determining spousal support, the first question is one of entitlement. The issue of entitlement is scheduled to be heard at a summary judgement motion on November 7, 2019, pursuant to Akbarali J.’s order dated July 3, 2019. Therefore, the issue before me is to determine entitlement on a temporary basis without prejudice to the ultimate hearing of this issue in three months’ time. For the reasons set out below, I find that the Applicant has established a prima facie case for entitlement to spousal support.
[5] The Supreme Court of Canada articulated the fundamental principles with respect to entitlement in Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813, and Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420. There are three bases for entitlement:
a. compensatory;
b. non-compensatory; and
c. contractual or consensual.
[6] I find that on a temporary basis the Applicant has a non-compensatory entitlement to support based on the difference between the needs and means of the parties and the pattern of economic dependency created during the relationship (albeit however short). Based on the affidavit evidence, the Applicant has satisfied the court that she gave up a monthly stipend she was receiving from her previous partner, Marc, and relied on the Respondent to fund her lifestyle during the relationship. She was economically dependent on the Respondent during their relationship, but she was not dependent on him prior to that time.
[7] The judge hearing the summary judgement motion will have more fulsome evidence to determine whether there may exist a compensatory claim. The record before me is insufficient to make a finding on that ground, even on an interim motion.
[8] After the breakdown of the relationship, the Applicant was unable to afford a lifestyle even remotely close to the one she enjoyed during the marriage/cohabitation with the Respondent (or even the one she enjoyed prior to the relationship). She will need some time to adjust her lifestyle. This may be a perfect case for lump sum support, but that will have to be determined by a judge having the full record before the court.
[9] The parties lived together somewhere between 6 and 24 months, depending on whether one accepts the Applicant’s or Respondent’s calculations. The parties met in January 2017 and married in February 2018. The parties do not agree on whether they cohabited prior to their marriage. Further, the Respondent alleges they separated in August 2018, while the Applicant alleges they separated in February 2019. The very short duration of the relationship will go to the issue of quantum and duration of support but does not prevent a finding that the Applicant is entitled to spousal support on a temporary basis, pending final determination on the issue of entitlement.
Quantum
[10] Having found that the Applicant is entitled to support on a temporary basis, I must now determine the quantum of spousal support.
[11] Section 15.2(2) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), sets out the court’s jurisdiction to make an interim order with respect to spousal support. Section 15.2(4) directs the court to consider “the condition, means, needs and other circumstances of each spouse”. Section 15.2(6) sets out the objectives of a spousal support order, including:
a. recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; and
b. relieve any economic hardship of the spouses arising from the breakdown of the marriage.
[12] As set out by McGee J. in Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689, [2013] W.D.F.L. 699, at para. 24, in addition to the legislative criteria under the Divorce Act, there are some additional general principles that apply in dealing with motions for temporary spousal support:
a. The party claiming temporary spousal support has the onus of establishing that there is a triable (prima facie) case, both with respect to entitlement and quantum. The merits of the case in its entirety are to be dealt with at trial.
b. In the event a spousal support claimant cannot establish an arguable case for entitlement to spousal support, the motion for temporary relief should be dismissed, even if the claimant has a need and the other party has ability to pay.
c. The court is not required to carry out a complete and detailed inquiry into all aspects and details of the case or to determine the extent to which either party suffered economic advantage or disadvantage because of the relationship or its breakdown. That task is for the trial judge.
d. The primary goal of interim spousal support is to provide income for dependent spouses from the time the proceedings are commenced until trial. Interim support is meant to be a “holding pattern” to, in so much as possible, maintain the accustomed lifestyle pending trial.
e. If a triable case exists, interim support is to be based primarily on the motion judge’s assessment of the parties’ means and needs. The objective of encouraging self-sufficiency is of less importance.
[13] Very often temporary orders are made at the early stages of family law proceedings to address pressing issues and to provide some measure of order and stability to the parties’ immediate affairs. The evidentiary record upon which the court typically relies is incomplete at this stage.
[14] For the purposes of an interim motion, the Applicant has shown that she suffered an economic disadvantage arising from the marriage/relationship and its breakdown. Prior to meeting the Respondent, the Applicant had been involved in a relationship with another man, Marc. When that relationship ended, Marc offered and continued to pay various expenses for the Applicant. While the extent of these payments is unclear (the parties disagree on the quantum), the Respondent acknowledges that payments were being made. The parties also agree that the payments ended during their relationship/marriage, although they disagree on who initiated the request to end the payments from Marc.
[15] The Applicant also takes the position that she suffered an economic disadvantage because she was required to quit school (she was in an interior design program at George Brown College) to be available to travel with the Respondent. More recently, the Applicant started taking courses to obtain her real estate license. There is insufficient information before me to determine entitlement based on this issue. No explanation was offered for the change in her course, nor were other important details provided to determine this issue.
Means:
[16] The Respondent acknowledges that his income is $2.88 million. The Applicant alleges that the Respondent’s income is higher, but I have no information before me on which to impute additional income currently, or even if it is appropriate to do so. I appreciate that the Respondent’s financial circumstances are complex and that the case is still in its infant stages. However, the Respondent’s initial budget shows expenses of $1,640,228 net per year, consistent with his stated income.
Need:
[17] The parties agree that the Applicant earns approximately $24,000 per annum. The Applicant alleges that her needs, on an interim basis, are $30,000 net per month, which is how she arrived at her claim for $50,000 gross per month. In looking at the Applicant’s budget of $39,000 net per month (and I appreciate it was difficult for her to properly prepare one given that she did not have access to all the information she needed), I would make some adjustments for expenses that need not be incurred on a short-term basis. Some adjustments can be made to the $12,000/month spent on clothing, purses and accessories, $4,000/month on vacations, and $3,500/month on hair and beauty.
[18] When the parties met, the Applicant was living in the Shangri-La Hotel, paying rent of $3,800 per month. The parties leased and moved into a larger apartment, paying rent of $9,250 per month. The lease ended in April 2019. What had not been explained in the materials is why the Applicant did not move back to a less expensive rental in the Shangri-La or what her intentions are in the near future.
[19] In considering the concept of a “holding pattern”, the Respondent acknowledges he paid almost $500,000 in expenses on the Applicant’s behalf between August 2018 and April 2019. This provides some indication of the lifestyle led by the parties. The Applicant alleges she is unable to afford her rent and other day-to-day expenses because the Respondent stopped funding her expenses as of April 2019.
Quantum:
[20] The cases provided by both lawyers were not overly helpful in determining the quantum of support in these circumstances. Most of the cases were easily distinguishable as they were being decided at a trial level and/or were long term marriages. This was a short relationship with no children and with a very large discrepancy in income.
[21] As set out above, the short length of the relationship will also be reflected in the quantum of the spousal support.
[22] The Respondent’s position is that the Spousal Support Advisory Guidelines (Ottawa: Dept. of Justice, 2008) (SSAG’s) should apply and that the court should find that this is an exceptional case to deviate (by way of a decrease) from the Guidelines. Using the SSAG’s, the Applicant would be entitled to less than $2,000 per month. I disagree with the Respondent’s understanding of the SSAG’s.
[23] The SSAG’s do not apply when a payor’s annual income exceeds $350,000: see Elgner v. Elgner, (2010), 2010 CanLII 100055 (ON SCDC), 99 O.R. (3d) 687 (C.A.). The formulas and amounts set out in the SSAG’s are no longer presumptive once the payor’s income exceeds the “ceiling” of $350,000 of income. The Spousal Support Advisory Guidelines: The Revised User’s Guide (Ottawa: Dept. of Justice, 2016) states at p. 57:
The formulas are not to be applied automatically above the ceiling, although the formulas may provide an appropriate method of determining spousal support in an individual case, depending on the facts.
[24] With income above the ceiling, spousal support requires an individualized, fact-specific analysis, having regard to the legislative framework. There is further discretion given to the court in these circumstances. The SSAG’s can and have been used as a starting point for support in cases where the payor’s income far exceeds $350,000, but their use has been subject to an examination of the parties’ individual circumstances.
[25] What is clear from the evidence of both parties is that they enjoyed a very lavish lifestyle during the relationship. The parties travelled extensively by private plane, drove expensive cars, and rented an expensive property in which to live.
[26] The Applicant has a need for support and the Respondent has ability to pay. Whatever order I make, it will be short term, given the line-up of motions scheduled between the parties, including the summary judgement motion referred to above.
[27] Having regard to the Applicant’s short-term needs, the very short length of the relationship, the Respondent’s means, the lifestyle enjoyed during the relationship, the return dates scheduled in these proceedings, the economic disadvantage suffered by the Applicant, and the very temporary nature of this order, I make the following order:
a. Without prejudice to any future claims by the parties with respect to entitlement, quantum or duration, the Respondent shall pay the Applicant temporary spousal support of $25,000 per month, commencing April 1, 2019, and on the first day of each month thereafter. The Respondent shall receive credit for the $60,000 total payments made from April 1, 2019 to date.
b. SDO to issue.
c. If the parties are unable to resolve the issue of costs, the Applicant may make written submissions by September 13, 2019, and the Respondent by September 20, 2019. The submissions shall be no longer than 2 pages in length, not inclusive of bill of costs and any offers to settle.
S. Shore J.
Released: September 3, 2019
COURT FILE NO.: FS-19-009407
DATE: 20190827
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Svetlana Zahelova
Applicant
– and –
David Wiley
Respondent
REASONS FOR JUDGMENT
S. Shore, J.
Released: August 27, 2019