COURT FILE NO.: 42823/19 DATE: 2020-03-12 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
KAREN MARGARET ANDERSON Applicant – and – WARREN GRANT BUBB Respondent
Counsel: Jordan R. Welsh, for the Applicant Marcel Banasinski, for the Respondent
HEARD: March 11, 2020
Gray J.
[1] This is a motion for summary judgment, in which the applicant seeks a final order for spousal support.
[2] Mr. Banasinski, who appeared as agent for the respondent, had just been retained, and sought an adjournment. Ordinarily, I am quite sympathetic to a recently-retained lawyer, who requests an adjournment in order to file material and properly respond to a matter. However, in this case, I denied the request for an adjournment and proceeded to hear the matter. I will outline my reasons for doing so in due course.
[3] For the reasons that follow, the motion for summary judgment is granted, and I award spousal support to the applicant.
Background
[4] The applicant is 57 years old, and the respondent is 55 years old. They commenced living together in 2005 in Burlington, and they were married in Oakville on May 29, 2009. They separated on or about November 1, 2017.
[5] From 2005 onwards, the respondent was employed by a subsidiary of Magna International, earning $92,250 USD. The applicant was employed by O.C. Tanner, earning approximately $50,000 per year plus benefits.
[6] In 2009, the respondent was offered a position with another subsidiary of Magna International in Alabama. The parties moved to Alabama, and the applicant did not work while they were there, except for a period of one year in 2011 at a minimum wage job.
[7] The respondent continues to reside in Gardendale, Alabama, and the applicant has lived in Burlington since the separation on or about November 1, 2017.
[8] The respondent continues to be employed in Alabama for the same employer. The applicant is unemployed. She is receiving $733 per month from Ontario Works. On May 28, 2019 she made a hardship application to withdraw $10,000 from her LIRA to pay rent.
[9] The applicant deposes that if she had not moved to Alabama with the respondent, she would have continued to work for O.C. Tanner, and would likely be earning more than $50,000 per year, with the attendant benefits.
[10] In July, 2019, the applicant was diagnosed with Concurrent Disorder. She was diagnosed with depression and anxiety, and suffers from alcoholism. She is receiving therapy. She deposes that she is unable to work.
[11] On November 6, 2019, prior to commencing this application, the applicant’s solicitor wrote to the respondent expressing a need for spousal support. Prior to that time, the respondent permitted the applicant to withdraw about $200 or $300 per month from their joint US Wells Fargo account. Upon receiving the letter from the applicant’s solicitor, the respondent cut off this source of income for the applicant.
[12] On November 15, 2019, approximately one week after receipt of the applicant’s letter regarding spousal support, the respondent commenced a divorce proceeding in Alabama, proposing to pay no spousal support.
[13] Without the assistance of a lawyer, the applicant filed a response to the proceeding in Alabama, on December 19, 2019. Included in that response is the following:
I am currently seeking spousal support/alimony. I am currently unable to work due to medical reasons. I have no income. I am asking spousal support as I gave up my job, bonuses and contributions to my retirement fund as I was no longer working in Canada. Mr. Bubb’s assets were to take care of both of us. I have had to claim hardship this year in order to access some of my retirement savings to make ends meet.
[14] Mr. Banasinski advises that the Circuit Court of Jefferson County, Alabama, apparently misplaced the applicant’s response, and treated the matter as an undefended proceeding. Accordingly, a final judgment of divorce was granted on February 6, 2020. Upon discovering that a response had actually been filed, the court, on February 10, 2020, issued an order setting aside the final judgment of divorce, and fixed the date of March 17, 2020, as a trial date.
[15] The application in this court was issued on November 8, 2019. It was served on the respondent on January 17, 2020.
[16] Upon becoming aware of the trial date of March 17, 2020, the applicant brought this motion for summary judgment, dated March 4, 2020, which was served on the respondent by courier. The applicant requests that the claim for divorce be severed from the corollary relief; the respondent pay monthly spousal support in the amount of $2,163; and that the respondent pay retroactive spousal support in the amount of $62,727.
[17] The only evidence as to the respondent’s income is a letter written in 2009 by the respondent’s employer, requesting that the immigration authorities in the United States issue a visa to the applicant, so that she could move to the United States with the respondent. In that letter, it is stated that the respondent is compensated at the annual rate of $92,250.
[18] While common sense would suggest that, eleven years later, the respondent, who is still working for the same employer, likely earns something more than $92,250, the applicant is content that her claim for support be based on the Canadian dollar equivalent of $92,250 US. That is approximately $123,000 CDN.
Submissions and analysis
[19] As noted, the respondent requested an adjournment. I denied that request, for the brief reasons that follow.
[20] As noted earlier, I would ordinarily be very sympathetic to a request for an adjournment from counsel who has been retained late, and who needs time to prepare responding material.
[21] However, in my view the circumstances are such that it would not be advisable to grant an adjournment.
[22] It is quite evident that the proceeding commenced by the respondent in Alabama was commenced with the clear intention to deprive the applicant of any opportunity to make a realistic claim for spousal support.
[23] As noted, the respondent’s application in Alabama was commenced a few days after he received a letter from the applicant’s counsel requesting spousal support. In his own application, the respondent says nothing about spousal support.
[24] The respondent was served with the applicant’s application on January 17, 2020. He has done nothing since being served with the application to respond to it.
[25] The respondent was served with the Notice of Motion for summary judgment on or around March 4, 2020. While the time for responding was short, he has had time to prepare responding material. He did not make any attempt to do so, nor did he retain Ontario counsel until literally the day before the motion was to be heard.
[26] Perhaps most significantly, if this motion is not heard, and the divorce proceeding is heard in Alabama, it is a virtual certainty that this court will lose jurisdiction to grant spousal support.
[27] The jurisdiction of this court to hear this matter is grounded in s.3 and s.4 of the Divorce Act. The relevant provisions are as follows:
3 (1) A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.
4 (1) A court in a province has jurisdiction to hear and determine a corollary relief proceeding if (a) either former spouse is ordinarily resident in the province at the commencement of the proceeding;
[28] There is no doubt that the applicant has been ordinarily resident in Ontario since November 1, 2017. Thus, pursuant to section 3(1) of the Act, this court has jurisdiction to hear the divorce proceeding, and pursuant to s.4(1)(a), this court has jurisdiction to hear the claim for corollary relief.
[29] However, if a foreign court grants a valid divorce, a Canadian court loses jurisdiction to grant corollary relief: see Okmyansky v. Okmyansky, 2007 ONCA 427, 86 O.R. (3d) 587; and Cheng v. Liu, 2017 ONCA 104, 136 O.R. (3d) 172.
[30] In Cheng, the Court of Appeal confirmed its earlier decision in Okmyansky that an Ontario court is deprived of jurisdiction to entertain a claim for corollary relief where a divorce has been validly granted by a foreign court. At para. 28, Hourigan J.A. stated:
Okmyansky is clear and unequivocal authority that an Ontario court does not have jurisdiction to hear and determine a corollary relief proceeding under the Divorce Act following a valid foreign divorce. Simmons J.A. held, at para. 38, that without a divorce granted in Canada, a support order could not properly be viewed as “corollary relief.”
[31] It is also clear that where a foreign divorce has been granted, the court also does not have jurisdiction to grant spousal support under the Family Law Act: see Cheng, at para. 34, and Okmyansky, at para. 42.
[32] In my view, it is highly unlikely that the court in Alabama will grant any form of spousal support to the applicant. Even if there is a possibility that the court could grant relief, the risk is too great that the court will not do so. If that were to occur, the applicant would lose any avenue for relief.
[33] In these circumstances, I was simply not prepared to grant an adjournment and leave the applicant with the distinct possibility, if not probability, that her claim for relief would become foreclosed.
[34] For these reasons, I declined to grant an adjournment, and I heard the motion.
Should the court grant spousal support?
[35] A claim for spousal support can be advanced on a contractual basis; a compensatory basis; or a non-compensatory basis.
[36] In this case, the applicant advances her claim on a compensatory and a non-compensatory basis.
[37] In my view, the claim for compensatory support is not overwhelming. The parties were married when the respondent was 40 and the applicant was 42. They were both employed while in Ontario. The applicant was briefly employed in Alabama but has essentially been unemployed since 2011.
[38] The parties were mature and self-sufficient when they got married, and it is not clear that the applicant did very much, if anything, to advance the respondent’s career, when it is clear that he had the same job throughout. While the parties have children from other relationships, they do not affect this proceeding.
[39] The applicant has a stronger claim, in my view, on a non-compensatory basis.
[40] It is a clear that the applicant has serious health problems that prevent her from working, and she is barely subsisting on public assistance. She has had to make a forced withdrawal from her LIRA in order to survive.
[41] In my view, the principles discussed by the Supreme Court of Canada in Bracklow v. Bracklow, [1999] 1 S.C.R. 420, require that the applicant be paid spousal support. As noted by McLachlin J. (as she then was), at para. 31 of Bracklow, a support order in these circumstances “places the primary burden of support for a needy partner who cannot attain post-marital self-sufficiency on the partners to the relationship rather than on the state, recognizing the potential injustice of foisting a helpless former partner onto the public assistance roles.” See also Van Rythoven v. Van Rythoven, [2009] O.J. No. 3648 (S.C.J.); aff’d 99 R.F.L. (6th) 152 (Ont. Div. Ct.).
[42] I think it is reasonable to assume that the respondent’s income is at least the equivalent of $123,000 CDN, although common sense would suggest that it is likely considerably higher than that. A DivorceMate calculation would place the range of spousal support (assuming an annual income for the applicant of $8,796) between $1,849 at the low end and $2,466 at the high end. The mid-range would be $2,157 per month.
[43] I order that the respondent pay spousal support to the applicant in the amount of $2,157 per month, effective April 1, 2020.
[44] The applicant claims retroactive spousal support from November 1, 2017 until March 31, 2020, in the amount of $62,727, based on the mid-range calculation. However, this does not take into account the $200-300 per month that the applicant obtained from the parties’ joint account from November 1, 2017 until November, 2019.
[45] I will take, as an average, the sum of $250 per month for two years, which the applicant was able to take from the joint account. Thus, I calculate a reasonable amount for retroactive spousal support to be $56,500.
Disposition
[46] For the foregoing reasons, I order that the respondent pay to the applicant the amount of $56,500 in retroactive spousal support, and that he pay spousal support in the amount of $2,157 per month commencing April 1, 2020. The order will be enforced by FRO.
[47] The claim for corollary relief is severed from the claim for divorce.
[48] S.D.O. to issue.
[49] I entertained costs submissions at the hearing. I order that the respondent pay costs to the applicant, fixed in the amount of $6,000, all-inclusive. I order that it be enforced by FRO as spousal support.
[50] With no disrespect to Mr. Banasinski, who was retained as an agent very shortly before the hearing date, I do not think it would be fair to him to require him to approve the formal order. The applicant may have it issued and entered without the respondent’s approval of its form and content.