COURT FILE NO.: FC-19-367-2
DATE: 2020/10/23
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Amanda Purdy, Applicant
AND
Jake Purdy, Respondent
BEFORE: Justice Engelking
COUNSEL: Manraj Grewal, Friend of the Court, for the Applicant
Respondent, Self-represented
HEARD: September 30, 2020
ENDORSEMENT
[1] This is the Applicant, Ms. Purdy’s motion seeking an order for temporary child support for the parties two children, Coral and Jade, on a set-off basis in the amount of $1,611 per month, temporary spousal support in the amount of $2,172 per month and that the Respondent’s share of section 7 be 70% to the Applicant’s 30%.
[2] The Respondent, Mr. Purdy, disputes that Ms. Purdy has any entitlement to spousal support and takes the position that his income is lower than identified by Ms. Purdy and her income should be imputed to $50,000.
[3] The matter was before Justice Audet for a case conference on August 25, 2020, at which time she granted Ms. Purdy leave to bring this motion. On that date, Justice Audet ordered that Ms. Purdy provide disclosure to Mr. Purdy of the following:
a. A sworn affidavit describing the following:
i. All of her efforts since the date of the parties’ separation to secure work (whether full-time, part-time or contractual), including the details of the jobs applied for, and outcome of each application, with back-up documentary evidence if any exists;
ii. All of the steps taken to pursue/complete her online post-secondary degree(s) at Athabasca University, including the following;
The nature of each course enrolled in;
The date at which she enrolled in each course;
Whether or not the course is completed;
If completed, the grade obtained;
Confirmation of whether she is enrolled in any courses for September 2020 and, generally, what is her education plan (including when she expects to complete her program(s)); along with appropriate documentary evidence.
b. Documentary proof of payment of tuition fees at Athabasca University.
c. An updated sworn financial statement, including her 2019 income tax return and notice of assessment (only if the notice is available by then).
[4] The parties were married on July 11, 2007 and separated on August 22, 2017. Two children were born of the marriage, Coral on September 7, 2010 and Jade on February 9, 2013.
[5] Ms. Purdy obtained a college certificate as a paramedic prior to marriage and worked in that field for approximately two years, leaving it in 1998. She then worked as a flight attendant for a period, which occupation she left when she moved to Ottawa.
[6] In September of 2008, Ms. Purdy began working as an executive assistant for the Bank of Canada. According to Mr. Purdy, she earned approximately $50,000 per annum in this position, with no post-secondary or college degree in support thereof.
[7] In February of 2010, Ms. Purdy took another position at the Bank of Canada, at which Mr. Purdy attested she made approximately $60,000 a year. Ms. Purdy took a maternity leave from the Bank from September of 2010 to September of 2011 and then returned to work as an Executive Assistant again. She remained in this position with the Bank of Canada until November of 2012, when she left due to her pregnancy with Jade. Ms. Purdy completed two business/accounting courses between December of 2011 and November of 2012.
[8] Ms. Purdy took another full year maternity leave after Jade was born in February of 2013. Upon her return in February 2014, due to restructuring at the Bank and with the agreement of Mr. Purdy, Ms. Purdy took a severance package and remained at home. At this time, Ms. Purdy started a home-based photography business called “Purdy Impressions”. The business did not make much money but did permit for some tax deductions for the use of the home. Ms. Purdy has continued to run her photography business. In 2019, Purdy Impressions earned a gross income of $16,000 and a net income of $8,400. Due to the COVID-19 pandemic, she expects that to be much reduced in 2020.
[9] Mr. Purdy’s evidence is that Ms. Purdy was offered a project management position at the Department of National Defence in 2016 or 2017 at $70,000 per year, but she turned it down. He provided no documentary evidence to support this assertion.
[10] By her own evidence, Ms. Purdy appears to have applied for three jobs since separation, one as a Station Manager for Air Canada sometime in 2018, one at Public Safety in February of 2020 and one in August of 2020 with the Canadian Armed Forces. She also commenced real estate courses in 2018 (which Mr. Purdy paid for and which she did not complete) and ran in a municipal election for a school trustee position in the summer of 2018.
[11] In the fall of 2019, Ms. Purdy registered for and attended Athabasca University on-line. Her stated goal is to obtain a Bachelor of Commerce degree. However, Ms. Purdy failed the three courses she attended in the fall of 2019 and, notwithstanding Justice Audet’s order outlined above, has provided no transcripts or grades for her spring of 2020 courses. She attests to being registered for three courses in the fall term and three in the spring term of 2020/2021. As of August 20, 2020, Ms. Purdy has received a Student Loan of $15,000 for this purpose, which amount she has not included as income in her Financial Statement sworn September 19, 2020.
[12] Mr. Purdy commenced paying $1,694 per month in child support to Ms. Purdy in November of 2019, which payment has continued to date. The children are currently in a week-about parenting arrangement and have been so since the order of Justice Audet dated March 4, 2020. Given that the parenting arrangements were changed on that date and given that Justice Audet also ordered on that date that temporary child and spousal support motions could proceed on an urgent basis (which motions were delayed by the pandemic), the order I make today will be effective as of March 4, 2020.
[13] Mr. Purdy is of the view that Ms. Purdy is not entitled to spousal support, because she has simply chosen not to work full-time for several years. In the alternative, if she is entitled to some spousal support, it is Mr. Purdy’ position that Ms. Purdy can earn an income of $50,000 per year, based on her past employment with the Bank of Canada and on the fact that she is bilingual.
Analysis
[14] At the interim stage, the court is not required to “conduct an in-depth analysis of the standing and entitlement issues. If the Applicant is able to make out a good, arguable case for standing and entitlement the court will assess support on the basis of the parties’ needs and means.” The questions to be answered in an application for temporary spousal support are: does the Applicant have standing; is the Applicant entitled to the support; what are the dependant’s needs; and, does the payor have the ability to pay? (Robertson v. Hotte, 1996 8083 at paras. 7 and 8).
[15] As noted by Labrosse J. in Kelly v. Kelly, 2016 6476 at para. 17, “interim support motions are not intended to involve a detailed examination of the merits of the case. Orders for interim support are based on a triable or prima facie case: see Knowles v. Lindstrom, 2015 ONSC 1408 at para. 8.”
[16] Has Ms. Purdy made out a prima facie case for spousal support? I believe that she has, given that she was a stay-at-home mom with the children when Jade was very young and for a period with a home-based business, with the agreement of Mr. Purdy, and that he was the main bread winner in the family during those years.
[17] Having said that, I see no reason why Ms. Purdy could not be working, at least on a part-time basis, to contribute to her own support. It appears that she has chosen for several years now to “make a go of” the photography business, yet it has never grown or produced much in the way of income. Ms. Purdy is a very capable person and she is fully bilingual. Despite this, she has only applied for three jobs in over three years since separation. While Ms. Purdy is now saying that she needs to complete her education with the University of Athabasca, this position is inconsistent with her last job application, which was as recent as August of 2020, and was for a full-time position with the Canadian Armed Forces. Based on all the above, I find that Ms. Purdy is intentionally underemployed. Notwithstanding that she is currently going to school (on-line), again by her own choosing and not particularly successfully to date, I am of the view that she is capable of, in the very least, making a minimum wage salary. For that reason, I am prepared to impute an annual salary of $30,000 to her for support purposes.
[18] While Ms. Purdy seeks support paid by Mr. Purdy to be on an annual income of $128,000, his actual salary is closer to $120,000. Mr. Purdy’s CRA Line 150 income in his 2019 Notice of Assessment was $128,096, however, his evidence is that he took a one-time withdrawal of $8,000 from his RRSP at a time when he thought he had reached a final resolution with Ms. Purdy, to satisfy that resolution and/or pay debts related to this dispute. That withdrawal was not and is not a reoccurring one and does not form part of his income for the purposes of this motion. Mr. Purdy’s pay stub for the period of August 20, 2020 to September 2, 2020, reveals that his annual income for 2020 will amount to approximately $118,445.
[19] A DivorceMate calculation for the parties on incomes of $30,000 for Ms. Purdy and $120,000 for Mr. Purdy reveals a range of spousal support of $1,166 at the low end, $1,587 in the mid-range and $2,010 at the high end. Given that this is a shared parenting arrangement and the mid-range amount of $1,587 brings the parties’ net disposable incomes to 49.4% for Mr. Purdy and 50.6% to Ms. Purdy, I find an award of spousal support in that amount appropriate.
Order
[20] For all the above reasons, there shall be a temporary order as follows:
The Applicant’s income is imputed to $30,000 for support purposes;
The Respondent’s income is $120,000 for support purposes;
Commencing March 4, 2020, the Applicant shall pay to the Respondent the sum of $459 per month being the Federal Child Support Guidelines table amount in support of the two children of the marriage, Coral Purdy, born on September 7, 2010 and Jade Purdy, born on February 9, 2013, on an annual income of $30,000;
Commencing March 4, 2020, the Respondent shall pay to the Applicant the sum of $1,716 per month being the Federal Child Support Guidelines table amount in support of the two children of the marriage, Coral Purdy, born on September 7, 2010 and Jade Purdy, born on February 9, 2013, on an annual income of $120,000;
The resulting set off amount of child support payable by the Respondent to the Applicant is $1,257 per month;
Commencing March 4, 2020, the Respondent shall pay to the Applicant the sum of $1,587 per month in spousal support;
Commencing March 4, 2020, the parties shall contribute to section 7 expenses for the children in proportion to their respective incomes found herein; and,
The Family Responsibility Office shall enforce this order and make all necessary adjustments in accordance therewith.
Costs
[21] The parties have met with mixed success on this motion. Although spousal support has been ordered on a temporary basis, it is in a significantly lower amount than requested by Ms. Purdy. Additionally, the set off amount of child support ordered is also lower than requested. On the other hand, while Mr. Purdy was successful in having income imputed to Ms. Purdy, it was, on a temporary basis, at a lower amount than he sought.
[22] Mr. Purdy was self-represented on the motion. Ms. Purdy had the assistance of Mr. Grewal appearing as Friend of the Court. Whether any costs are warranted on this matter depends on whether Ms. Purdy incurred costs for the motion. If the parties cannot agree on liability for costs of this motion by November 15, 2020, then they may make written submissions not exceeding three pages together with their bills of costs and any offers to settle at 10-day intervals thereafter and I will make a decision.
Justice Engelking
Date: October 23, 2020
COURT FILE NO.: FC-19-367-2
DATE: 2020/10/23
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Amanda Purdy, Applicant
AND
Jake Purdy, Respondent
BEFORE: Justice Engelking
COUNSEL: Manraj Grewal, Friend of the Court, for the Applicant
Respondent, Self-represented
ENDORSEMENT
Engelking J.
Released: October 23, 2020