COURT FILE NO.: FS-19-009394
DATE: 20190913
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Christian Wilfredo Samaniego Montoya, Applicant
AND:
Blanca Victoria Callirgos Arroyo, Respondent
BEFORE: Justice Kristjanson
COUNSEL: Eric Sadvari, for the Applicant Roger Rowe, for the Respondent
HEARD: September 12, 2019
ENDORSEMENT
[1] This is a motion by the Respondent wife for interim spousal support, both retroactive and prospective. Blanca and Christian are married, but separated almost 7 years ago, in January 2013. Christian commenced an application in April 2019 seeking a divorce and sale of the matrimonial home, which is held in his name. The parties have two adult children, ages 23 and 25, who reside with their mother. In July 2019, Blanca first advanced a claim for retroactive child support, prospective and retroactive child support, equalization and exclusive possession of the matrimonial home.
[2] An interim support award is a temporary order only and inevitably imperfect. Cardoso v. Cardoso, 2013 ONSC 5092. It is meant to provide “a reasonably acceptable solution to a difficult problem until trial”: see Chaitas v. Christopoulos, 2004 CanLII 66352 (ON SC), [2004] O.J. No. 907 (S.C.J.) per Sachs J.
[3] The Spousal Support Advisory Guidelines are intended to apply to interim orders as well as final orders. Traditionally, interim spousal support was based upon a needs-and-means analysis, assessed through budgets, current and proposed expenses, etc. All of that can be avoided with the SSAG formulas, apart from exceptional cases: Carol Rogerson & Rollie Thompson, Spousal Support Advisory Guidelines: The Revised User’s Guide (Ottawa: Department of Justice Canada, 2016), p. 15.
[4] I adopt the following principles as set out by Vogelsang, J. in King v. King, 2016 ONSC 5264 (SCJ) at para. 11:
On applications for interim support the applicant's needs and the respondent's ability to pay assume greater significance;
An interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor's ability to pay warrants it;
On interim support applications the court does not embark on an in-depth analysis of the parties' circumstances which is better left to trial. The court achieves rough justice at best;
The courts should not unduly emphasize any one of the statutory considerations above others;
On interim applications the need to achieve economic self-sufficiency is often of less significance;
Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise;
Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out; and
Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support.
[5] On a temporary and without prejudice basis, Blanca’s entitlement to interim spousal support is not disputed.
[6] Blanca has resided in the matrimonial home since 2013 while Christian has resided elsewhere. Christian has paid all the carrying costs of the matrimonial home, including mortgage, property taxes, and all utilities. While it is somewhat unclear, the evidence before me is that prior to a recent refinancing Christian was paying approximately $5,060 per month in carrying costs; he concedes he is now paying approximately $2,500 per month in carrying costs. Blanca has not paid any of the carrying costs in the last 6.5 years. At no time in the last 6.5 years did Blanca commence an application seeking child support or spousal support. The children are both independent adults.
Retroactive Claims to be Dealt with at Trial
[7] I decline to deal with retroactive spousal and child support. This is a one-hour motion. There are significant issues regarding the delay by Blanca in advancing the spousal and child support claim, and evidence and argument on the relevant factors as set out in D.B.S. v. S.R.G., 2006 SCC 37 will be required. As well, since Christian has been paying for Blanca’s housing expenses for 6.5 years, he seeks to categorize these expenses as spousal support payments: this will require evidence as well. The income of each of the parties from 2013 to today will need to be proved, including any imputed income claims. All the retroactive issues are complex and must be dealt with at trial. Counsel should have considered the complexity of the issues on the 6.5-year retroactive claim and should not have sought to argue those issues on a one-hour interim motion. It is the responsibility of the party to adequately estimate the time required to argue a motion in accordance with the primary objective of the Family Law Rules, which focuses on reaching a just resolution through fair, efficient and proportionate use of court time and the resources of the parties.
Quantum of Interim Spousal Support
[8] The main issue is quantum of interim spousal support, which is tied to the income of the parties. Christian is a T4 employee. His income is $169,354.
[9] Blanca’s income is disputed. Her financial statement indicates that she earns $12,000 per year. Her evidence is that she is presently working approximately 65 hours bi-weekly at $14.50 per hour. The same considerations apply to the imputation of income for spousal support purposes as for child support purposes. Section 19 of the Federal Child Support Guidelines, SOR/97-175 permits the court to impute such an amount of income to a spouse as it considers appropriate in the circumstances, which includes where the spouse is intentionally under-employed or unemployed.
[10] If a person is earning less than he or she could be, the person is intentionally underemployed: Lavie v. Lavie, 2018 ONCA 10 at para. 26. Since the parties separated 6.5 years ago, there is no medical evidence or mental health evidence that would indicate Blanca cannot work full-time, Blanca was 47 at the date of separation, and Blanca presently works at a minimum wage job at $14.50 per hour, I impute a full-time minimum wage income to Blanca. The husband seeks to impute minimum wage, full time employment income to Blanca in the amount of $29,120; I find minimum wage full time income, at $14.50 per hour, to be $25,000.00.
[11] The SSAG mid-point based on these incomes is $4,840 per month. After the house is sold, I order that Christian pay Blanca interim spousal support in the amount of $4,840 per month.
Interim Spousal Support While Blanca Occupies the Matrimonial Home
[12] Christian is presently paying the mortgage, property tax, property insurance, water, heat, and electricity in the matrimonial home exclusively occupied by Blanca and has done so for the past 6.5 years. The cost is approximately $2500.00, paid in after-tax dollars. The net after-tax cost of spousal support in the amount of $4,840 per month is $2,600. I find that Blanca is essentially receiving the economic benefit of SSAG mid-point spousal support through the present arrangement; it has also been the status quo for 6.5 years. In the unique circumstances of this case, I order that the status quo is to continue, pending the sale of the matrimonial home or further court order at trial. So long as Blanca is in de facto exclusive possession of the matrimonial home without paying expenses, Christian is to continue paying the carrying costs and utilities, and these payments are subject to characterization at trial.
ORDER
[13] I order as follows on an interim, without prejudice basis that Christian pay spousal support to Blanca as follows:
(1) Commencing October 1, 2019 until the 1st day of the 1st month following the closing of the sale of the matrimonial home:
(a) Christian shall pay the monthly carrying costs of the matrimonial home (mortgage, property tax, property insurance, water, heat, and electricity).
(b) These payments shall be neither taxable to Blanca nor tax deductible to Christian as periodic spousal support.
(2) Commencing the 1st day of the 1st month following the closing of the sale of the matrimonial home:
(a) $4,840 per month.
(b) These payments shall be taxable to Blanca and tax deductible to Christian as periodic spousal support.
(c) These payments shall be indexed and adjusted annually in accordance with the Consumer Price Index for all items in Canada, with the first annual adjustment occurring on October 1, 2020.
(3) All other claims on the motion and cross-motion are dismissed, without prejudice to the right of the parties to advance the claims at trial.
(4) Once periodic spousal support commences in accordance with paragraph 2, a support deduction order shall issue.
COSTS
[14] Christian has been successful on the motion and is presumed to be entitled to costs. Christian is to provide submissions (3 pages, plus costs outline and offers to settle) by September 20. Blanca is to respond by September 27, subject to the same constraints.
Justice Kristjanson
Date: September 13, 2019