Court File and Parties

COURT FILE NO.: 19-203

DATE: 2019-11-18

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Melissa Sauer v. Brandon Narum

BEFORE: The Honourable Justice Laurie Lacelle

COUNSEL: Christopher Giggey, Counsel for the Applicant Self-represented

HEARD: October 30, 2019

Amended Endorsement

Introduction

[1] The Applicant, Ms. Sauer, brings a motion seeking interim orders on a number of issues. Most issues were decided the date of the hearing with the exception of the claim for interim spousal support.

[2] Ms. Sauer seeks spousal support of $741 monthly commencing on July 1, 2019. This figure, derived from the Spousal Support Advisory Guidelines ["the SSAG"], is based on her current income of $23, 323, and income of $97, 170 for the Respondent. This SSAG calculation reflects the Respondent's child support obligation, which I have confirmed on an interim basis is $888 monthly. An award of $741 monthly is at the low end of the suggested amount of spousal support indicated by the SSAG.

[3] As I indicated in the course of my oral reasons in respect of the issue of interim child support, for the purposes of this motion I accept that the best evidence as to the Respondent's income is as indicated in his Financial Statement. Accordingly, I have accepted the figure of $97, 170 as the Respondent's income for the purposes of support calculations.

[4] The issues I have to decide are whether the Applicant has met her onus in proving she has a prima facie case for spousal support and if so, what quantum of spousal support should be ordered on an interim basis given the needs and means of the parties.

The positions of the parties

[5] Ms. Sauer says she meets the definition of "spouse" under s. 29(b) of the Family Law Act because she and the Respondent share a child together and they co-habited "in a relationship of some permanence". She emphasizes the disparity in their respective incomes and claims entitlement to spousal support on a needs-based basis. The Applicant submits that she has a definite need, and the Respondent has the corresponding ability to pay. She says that there is a disparity between her household and that of the Respondent which child support does not meet. She argues that the evidence that shows the parties were in a "relationship of some permanence" extends to the time prior to their brief cohabitation.

[6] The Respondent does not agree that he should pay spousal support, or that it should be assessed based on an income of $97, 170. He submits that paying both child support and spousal support will make it difficult for him to support his daughter when she has parenting time with him.

[7] Currently, there is no order in respect of the Respondent's parenting time. The parties' daughter resides primarily with the Applicant. Parenting time with the Respondent is currently occurring on week-ends.

The evidence

[8] The Respondent, Mr. Narum, has not filed any evidence in reply on the motion. I do, however, have his Financial Statement to consider in respect of his current income and expenses.

[9] The evidence, largely from the Applicant, establishes the following facts for the motion.

[10] The parties were never married. They share a daughter who was born on January 18, 2015.

[11] Following the birth of their daughter, between January and September of 2015, the parties "were back and forth" between their parents' residences. They were fighting and arguing on a frequent basis, including about the Respondent's fidelity to the Applicant. For the first six months of this period, the Respondent was also on course in Kingston for 3 months while the Applicant was in Ottawa.

[12] For a year after that (September 2015 to September 2016), the Applicant lived with her sister in an apartment in Ottawa.

[13] In October of 2016, the Respondent moved into that apartment with the Applicant. Her sister had left. The parties resided there together until August of 2017. These facts were confirmed by counsel during submissions given the conflict in the evidence on the Applicant's affidavit in respect of the period of cohabitation.

[14] The Applicant alleges that the Respondent assaulted her in August of 2017 while they were visiting the Respondent's mother in Calgary. The relationship ended after that.

[15] In her evidence, the Applicant states that she has a need for spousal support. She says she depended on the Respondent's income while they were together. No further detail is provided about the Applicant's dependency on the Respondent's income.

[16] The Applicant's Financial Statement indicates that her income for 2015 was $13, 631. She was on a maternity leave for that year. In 2016, her income was $14, 184. In 2017, her income was $27, 046.

[17] The Respondent has not filed the required financial disclosure with respect to his income for the years preceding this litigation. I have no evidence as to his income, other than the Applicant's evidence which leads to the conclusion that he has been consistently employed with the Canadian Military throughout.

[18] As for the current circumstances of the parties, the Applicant is employed as an Educational Assistant with a local school board. She also works as a cashier/supervisor at a local store. Her anticipated annual income for 2019 is $23, 322.84. She is residing with the parties' daughter at her mother's residence in Cornwall, where her sister also resides. She has a new partner and is hoping to eventually move to the London area, where her partner now works.

[19] The Applicant's Financial Statement indicates she has $3, 191 in monthly expenses, or $38, 302 annually. She has assets totalling $6, 277, and debt (primarily related to student loans) of $17, 559.84.

[20] The Respondent lives in Ottawa. His Financial Statement indicates that his monthly expenses total $5, 151.48 (including automatic deductions for income taxes, pension contributions, etc.). This represents annual expenses of $61, 817. His T4 for 2018 confirms employment income of $75, 570. In his Financial Statement, the Respondent indicates that he has additional sources of income consisting of $20, 400 in net rental income, and $1, 200 in RRSP withdrawals, annually. The Respondent's Financial Statement also confirms that he owns a house in which he has equity of $139, 000. He has no debts aside from his mortgage.

[21] The Respondent's budget reflects expenses relating to his parenting time (e.g. babysitting, clothing, children's activities) totalling $210, not including any increased costs that he has for groceries or transportation (which has been shared by the parties), or other areas of his budget which may reflect an increase related to his time with his daughter.

The legal principles

[22] Because the parties were not married, the Family Law Act ["FLA"]is the law that applies in this case.

[23] Section 30 of the FLA provides that "every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so".

[24] Section 29 confirms the meaning of "spouse":

"Spouse" means a spouse as defined in subsection 1(1), and in addition includes either of two persons who are not married to each other and have cohabited,

a) continuously for a period of not less than three years; or

b) in a relationship of some permanence, if they are the parents of a child as set out in section 4 of the Children's Law Reform Act.

[25] The FLA sets out in s. 33(8) the purposes of a spousal support award. The order should:

a. Recognize the spouse's contribution to the relationship and the economic consequences of the relationship for the spouse;

b. Share the economic burden of child support equitably;

c. Make fair provision to assist the spouse to become able to contribute to his or her own support; and

d. Relieve financial hardship, if this has not been done by orders under parts 1 (Family Property) and II (Matrimonial Home).

[26] Section 33(9) of the Family Law Act directs the court to consider all the circumstances of the parties in determining the amount and duration of any support award, including specific factors such as the dependant's and respondent's current assets and means (s. 33(9)(a), the dependant's capacity to contribute to her own support (s.33(9)(c), the respondent's capacity to provide support (s. 33(9)(d)), and the dependant's needs (to be considered having regard to the accustomed standard of living while the parties resided together) (s. 33(9)(f)).

[27] With respect to the approach to be taken where interim support is at issue, a number of authorities provide guidance. I consider the summary of the relevant principles set out at para. 24 of Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689, [2012] O.J. No. 5586 (S.C.J.). They include the following:

(1) 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.

(2) In the event that 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 need and the other party has the ability to pay.

(3) 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 as a result of the relationship or its breakdown. That task is for the trial judge.

(4) The primary goal of an interim spousal support is to provide income for dependent spouses from the time the proceedings are commenced until the trial. Interim support is meant to be in the nature of a "holding order" to, insomuch as possible, maintain the accustomed lifestyle pending trial.

(5) Assuming that 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.

Entitlement to spousal support

[28] A threshold issue in considering a claim for spousal support is whether the claimant is entitled to such support: Halliwell v. Halliwell, 2017 ONCA 349.

[29] The law provides for spousal support to be made on a number of bases, including need: Bracklow v. Bracklow at para. 49. As reviewed by MacKinnon J. in N.H. v. J.H., 2017 ONSC 6607 at para. 87, and as stated in the Spousal support Advisory Guidelines: The Revised Users Guide, Rogerson and Thomspon, 2016 at p. 10:

Non-compensatory claims involve claims based on need. "Need" can mean an inability to meet basic needs, but it has also generally been interpreted to cover a significant decline in standard of living from the marital standard. Non-compensatory support reflects the economic interdependency that develops as a result of a shared life, including significant elements of reliance and expectation, summed up in the phase "merger over time".

Common Markers of non-compensatory claims include: the length of the relationship, the drop in standard of living for the claimant after separation, and economic hardship experienced by the claimant.

[30] Bracklow and other cases further establish a number of additional principles. While many of these cases were decided under the Divorce Act, their principles apply in cases governed by provincial legislation (see Halliday v. Halliday (1997), 1997 CanLII 737 (ON CA), 37 R.F.L. (4th) 192 (Ont. C.A.):

a. Where compensation is not indicated and self-sufficiency is not possible, a support obligation may nonetheless arise from the marriage relationship itself: Bracklow at para para. 37;

b. The Divorce Act "retains the idea that spouses may have an obligation to meet or contribute to the needs of their former partners where they have the capacity to pay, even in the absence of a contractual or compensatory foundation for the obligation. Need alone may be enough": Bracklow at para. 43 [emphasis in original]; or, "where need is established that is not met on a compensatory or contractual basis, the fundamental marital obligation may play a vital role. Absent negating factors, it is available, in appropriate circumstances, to provide just support": at para. 49 [emphasis in original];

c. In determining whether economic hardship of a spouse arises from the breakdown of the marriage, the starting point should be a comparison of the spouse's actual situation before and after the breakdown. If the economic hardship arose shortly after the marriage breakdown, that may be a strong indication it is caused by the family breakdown: per McLaughlin J. (as she then was) in her concurring reasons in Moge v. Moge, 1992 CanLII 25 (SCC), 1992 3 S.C.R. 813 at para. 120.

d. Need is not measured solely to ensure a subsistence existence, but rather should be assessed through the lens of viewing marriage as an economic partnership: Gray v. Gray, 2014 ONCA 659 at para. 27;

e. In determining need, courts ought to be guided in part by the principle that the spouse receiving support is entitled to maintain the standard of living to which she was accustomed at the time cohabitation ceased. The analysis must consider the recipient's ability to support herself, in light of her income and reasonable expenses: Gray at para. 27.

The amount of spousal support

[31] The Spousal Support Advisory Guidelines are a useful tool for setting the amount and duration of a spousal support award, but they are not binding on the court. They suggest a range of both amount and duration of support that reflects the current law. They do not assist with the determination of entitlement, however.

[32] In all cases, the reasonableness of an award produced by the Guidelines must be balanced in light of the circumstances of the individual case, including the particular financial history of the parties during the marriage and their likely future circumstances. Nevertheless, when counsel fully address the Guidelines in argument, and a trial judge decides to award a quantum of support outside the suggested range, appellate review will be assisted by the inclusion of reasons explaining why the Guidelines do not provide an appropriate result: Fisher v. Fisher, 2008 ONCA 11, [2008] O.J. No. 38 (C.A.).

[33] Insofar as assessing a payor's income is concerned, the starting point for determining income under the SSAG is the definition of income under the Child Support Guidelines: Halliwell v. Halliwell, 2017 ONCA 349.

[34] Support recipients who proceed reasonably to a disposition of the claim are presumptively entitled to prospective support from the time they have given notice of their intention to seek support: MacKinnon v. MacKinnon, 2005 CanLII 13191 (ON CA), [2005] O.J. no. 1552 (C.A.) at para. 22.

[35] With respect to the quantum of any support order made on an interim basis, various courts have held that interim support should be ordered within the range of the SSAG, unless exceptional circumstances dictate otherwise: see Samis (Guardian of) v. Samis, 2011 ONCJ 273, [2011] O.J. No. 2381 (Ont. C.J.); Veneris v. Veneris, 2015 ONCJ 49.

Analysis

[36] I am satisfied that the Applicant has met her onus of demonstrating, on a balance of probabilities, a prima facie case for spousal support.

[37] While the evidence is not robust in its detail, the Applicant has adduced sufficient evidence to satisfy me that she meets the definition of "spouse" as set out in the FLA. The parties have a child together. The totality of the evidence, including the evidence that for almost a year, the parties cohabitated with their daughter, supports the conclusion that the parties were in a "relationship of some permanence" under s. 29(b) of the FLA: see for instance Donheim v. Irwin (1978) 1978 CanLII 771 (ON CJ), 6 R.F.L. (2d) 242 (Prov. Ct.), Johazi v. Bennett, 2008 ONCJ 805, Zahelova v. Wiley, 2019 ONSC 5024, and Walker v. Maxwell, 2014 BCSC 2357.

[38] The Applicant has also met her burden in demonstrating a prima facie claim to needs based spousal support. The evidence demonstrates a significant disparity in the incomes enjoyed by each of the parties at this time and that the Applicant has a need for support. While the evidence is not detailed, there is evidence before me that the Applicant depended on the Respondent's income during their relationship. The Applicant is the primary caregiver for their young child and has been since the parties' separation. These facts give rise to a prima facie case that the Applicant has suffered an economic disadvantage as a result of the breakdown of the relationship which entitles her to spousal support.

[39] In considering the means and needs of the parties, I am also satisfied that the Respondent has the means to pay spousal support set at the low end of the SSAG, in addition to child support. While I have considered the Respondent's submission that the obligation to pay spousal support will affect his ability to meet his daughter's needs while she is in his care, the evidence on the motion does not support that conclusion. The Financial Statement of the Respondent demonstrates that he has an ability to pay both child support and spousal support at the Guideline amounts requested by the Applicant.

[40] I consider as well that the Applicant has requested the amount of spousal support suggested at the low end of the SSAG. This is fair in the circumstances. The amount suggested at the low end of the SSAG is appropriate in this case having regard to the nature of an interim order as a "holding order" until the triable issues may be fully resolved on a tested evidentiary record.

Conclusion

[41] Consequently, on an interim basis, and commencing on November 1st, 2019, the Respondent shall pay spousal support to the Applicant in the amount of $741 per month.

[42] Spousal support arrears for the period between July 1, 2019 and October 30, 2019 (a period of 4 months) are fixed at $2964.00.

Costs

[43] The Applicant filed costs submissions which were sealed pending the court's resolution of the spousal support issue. The Applicant may proceed on the basis of her sealed submissions, or she may re-submit them. The Applicant shall serve the Respondent with her costs submissions within 14 days of the release of this endorsement.

[44] The Respondent shall serve and file his response to those submissions within 14 days of having received them.

[45] Both parties are to limit their costs submissions to two pages, in addition to any attachments.

The Honourable Justice Laurie Lacelle

Date: November 18, 2019