Superior Court of Justice
COURT FILE NO.: D-22451-18
DATE: 2019-10-24
ONTARIO
BETWEEN:
Jennifer Lila Marie Demers
Applicant
– and –
Derek Michel Demers
Respondent
COUNSEL:
Trent Falldien, for the Applicant
Alan Arkilander, for the Respondent
HEARD: October 18, 2019
Decision on Motion
Gauthier, J.
The Motion
[1] The applicant seeks interim spousal support. The respondent opposes the request, submitting that there is no entitlement to spousal support on the facts of this case.
Facts
[2] The parties are 40 and 45 years of age, respectively. They are both in good physical health. They began cohabiting on April 30, 2011, married on December 1, 2012, and separated on July 24, 2018. Their union lasted seven years. There are no children born of that union. The applicant has two children from a prior union; the younger of the two continues to be a dependent. He is 17 years of age.
[3] The applicant began proceedings for, among other things, a divorce and, spousal support, both under the Divorce Act and the Family Law Act, by way of application issued on September 12, 2018. The applicant brought a motion for spousal support on July 6, 2019, which did not proceed until October 18, 2019. The applicant did not have counsel until shortly before the hearing of the motion for spousal support.
[4] The parties owned a matrimonial home as well as a recreational property. The matrimonial home, I understand, has been sold and monies are being held in the trust account of an independent counsel. The issue of equalization of net family property is outstanding and will be dealt with at a later date. If I understood correctly, both parties claim to be entitled to an equalization payment.
[5] Both parties are employed. The applicant’s yearly income from employment is $39,717. The respondent’s projected income from employment for the current calendar year is $108,859.
[6] During the marriage, the parties each contributed to the household expenses as follows: the applicant contributed $400 per week and the respondent contributed $500 per week. This covered the matrimonial home and cottage mortgage, property taxes, household groceries, property and health insurance, utilities, health club membership and property renovation expenses. Each party was responsible for his/her vehicle payments, personal unsecured debts and personal care expenses. The parties maintained separate bank accounts except for the joint account into which the aforementioned contributions were made. The applicant bore the cost of care of her children without financial assistance from the respondent.
Applicant’s Position
[7] The applicant says that she is suffering financial hardship as a result of the separation and requires spousal support based on need.
Respondent’s Position
[8] The respondent offers that the applicant may have need, however, that is only one factor that relates to entitlement. He points out that the parties kept their finances separate and that the marriage in no way affected the applicant’s ability to earn income from employment. She was employed at the time of marriage and is employed now. There are no children of the marriage and the union was not a long one.
Applicable Legal Principles
[9] The 2009 Supreme Court of British Columbia decision in Robles v. Kuhn, 2009 BCSC summarized the legal principles relating to claims for interim support under both the Divorce Act and the provincial family law statute. At para. 12, the court said this:
On applications for interim support the applicant’s needs and the respondent’s ability to pay assume greater significance: Gibb v. Gibb, [2005] B.C.J. No. 2730 (S.C.);
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: Grossi v. Grossi, [1993] B.C.J. No. 878 (S.C.);
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. Randhawa v. Randhawa, [1999] B.C.J. No. 3299; Newson v. Newson, 1998 CanLII 6440 (BC CA), [1998] B.C.J. no. 2906, 65 B.C.L.R. (3d) 22 (C.A.);
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: Ladd v. Ladd, [2006] B.C.J. No. 1930, 2006 BCSC 1280 (S.C.);
Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out: LG.B v. M.A.C.M., [2005] B.C.J. No. 2966, 2005 BCSC 1786 (S.C.);
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: L.G.B.
[10] The general principles to be considered on a motion for interim spousal support were also discussed in Samis (Guardian of) v. Samis, [2011] O.J. No. 2381, 2011 ONCJ 271, 2 R.F.L. (7th) 476 (Ont. C.J.).:
Interim support is to provide income for dependent spouses from the time the proceedings are instituted until trial.
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.
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.
On interim support motions, needs and ability take on greater significance. The need to achieve self-sufficiency is of less importance.
Interim support should be ordered within the range of the SSAG, unless exceptional circumstances dictate otherwise.
While the merits of the case in its entirety must await a final hearing, interim support should only be ordered where a prima facie case for entitlement has been set out.
Analysis and Conclusion
[11] The evidence establishes that both parties are in their early to mid-forties, with no health or physical issues which could impact on each’s ability to be employed and to earn income.
[12] The evidence establishes that, save and except for the pooling of funds for specific household expenses, each party was responsible for his or her own needs, including personal care costs, loan payments and other expenses and debts. The applicant’s children’s needs were entirely borne by the applicant, without contribution from the respondent.
[13] There is no evidence that either party bore a disproportionate share of the running of the household.
[14] There is no evidence that either party subordinated his or her career for the benefit of the other party.
[15] There is no evidence of economic merger for joint goals or projects, save and except for cottage renovations.
[16] There is no evidence that either party suffered a disadvantage as a result of the relationship. While it is true that both parties benefited from the financial contributions of the other and, that there is a disadvantage once that contribution ends, that fact, in and of itself, does not establish a prima facie case for entitlement of spousal support. As well, need is only one factor relating to entitlement to spousal support. Cassidy v. McNeil, 2010 ONCA 218
[17] As was stated in Belcourt v. Chartrand, 2006 CanLII 11925 (ON SC), [2006] O.J. No. 1500 (Ont. S.C.J.), an order for interim spousal support should be linked to the likelihood of success at trial. Before an interim spousal support order is made, there should be a reasonably sound prospect of success at trial.
[18] The within case is distinguishable from the decision in Pizzaro v. Kretschmann, 2019 ONSC 3143, 2019 CarswellOnt 8100 (referred to by the applicant), where the parties had a 19-year relationship, beginning when the applicant was 21 and the respondent was 28 and, there was a child of that union. The applicant in that case was drawing down on her capital to pay her daily expenses as a financial consequence of the breakdown of the relationship.
[19] On the evidence before me, I find that the applicant has not provided evidence to establish the likelihood of success at trial and, accordingly, the claim for interim spousal support is dismissed.
[20] If the parties are unable to agree on the issue of costs, the respondent may make written submissions as to costs within ten days of the release of this ruling. The applicant shall have ten days after receipt of the respondent’s submissions to respond. If no submissions are received within this time frame, the parties will be deemed to have settled the issue of costs as between themselves.
The Honourable Madam Justice Louise L. Gauthier
Released: October 24, 2019
COURT FILE NO.: D-22451-18
DATE: 2019-10-24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jennifer Lila Marie Demers
Applicant
– and –
Derek Michel Demers
Respondent
Decision on motion
Gauthier, J.
Released: October 24, 2019