REASONS FOR decision

Audet J.

[1] The Applicant mother, Tonya Leanne Briand (“the mother”), brings an application pursuant to the Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13, against the Respondent father, Darren Francis Brophy (“the father”), seeking child support for the parties’ two children, Breannah Rayne Erica Brophy, born January 19, 2016 (“Breannah”) and Liam Edward Francis Brophy, born September 12, 2017 (“Liam”), retroactive to July 4, 2020. The mother is also seeking spousal support for herself.

[2] The father was personally served (by special service) with the mother’s application on December 31, 2020. He did not serve or file an Answer. This matter is, therefore, proceeding by default.

[3] The parties were never married. They were together from 2011 until July 4, 2020, the date of their separation. The father is employed with the Canadian Armed Forces since April 2014. The mother did not work outside of the home after the birth of the parties’ first child, and she depended on the father for all her financial needs. Before Breannah was born, she worked as a Customer Representative for a local insurance company. She did not resume work outside of the home after Breannah’s birth to care for her, and then, for Liam.

[4] During most of their relationship, the family resided in Nova Scotia. In October 2019, the father accepted a post in Ottawa. The mother and children moved from Nova Scotia to Ottawa with him, although reluctantly according to her.

[5] When the parties separated in July 2020, the mother relocated with the children to Nova Scotia without the father’s consent. The mother began court proceedings in Nova Scotia whereas the father began court proceedings in Ontario. Eventually, the court in Ontario confirmed Nova Scotia’s jurisdiction to deal with the parenting of the parties’ two children. They have remained in their mother’s sole care in Nova Scotia since. Thus, the mother’s application for child support is retroactive to July 4, 2020.

[6] If the father failed to respond to the proceeding and/or to provide his income information, the mother sought an order imputing to him an annual income of $80,000 per year for support purposes. The mother confirms that the father is employed as a Naval Electronic Sensor Operator with the Department of National Defence, a position that he occupies since April 2014. She provided Canada Child Benefit statements for 2020 which confirmed that the family’s income in 2019 was $76,339. Since the mother was not employed outside of the home that year, this comprised entirely of the father’s income.

[7] The mother also states that the father still owns the parties’ former family residence, which is registered in his name, in Nova Scotia (94 Manse Street, Sydney), and which he has rented out since the family moved to Ottawa in 2019 at the rate of $800-$850 per month. I have no evidence of the monthly costs for the maintenance of this home and, therefore, I have no ability to determine what more income should be attributed to the father for child support purposes as a result of his ownership in that home.

[8] The mother states that the father is currently on “a permanent medical category” (I am not certain what this means) and is expecting a release, although, at this time he is still an active member of the military. The mother is currently receiving social assistance benefits. She and the children currently reside with her parents who are providing her with a home and ongoing financial assistance.

[9] There is no question that the mother is entitled to child support for the two children. There is also no question that the mother is entitled to spousal support on a compensatory and non-compensatory basis. I have no difficulty imputing an annual income of $80,000 per annum to the father, as sought by the mother, given his confirmed 2019 income of $76,339 and the rental income he currently receives.

[10] Based on the federal Child Support Guidelines, S.O.R./97-175 Ontario Tables, the father is required to pay $1,211 in child support for the two children based on an income of $80,000 per annum. His obligation to do so is retroactive to July 4, 2020. He shall pay that amount on the 4^th day of each month thereafter, until varied by a court of competent jurisdiction.

[11] The Spousal Support Advisory Guidelines[^1]suggest monthly spousal support in the amount of $640 (low range), $832 (mid range) or $1,028 (high range). Given the child tax credits and benefits available to the mother for the children, this would result in a net disposable income split of 49.3% - 50.7% (low range), 46.9% - 53.1% (mid range) or 44.5% - 55.5% (high range), in favour of the mother.

[12] The mother indicates that the father is currently paying child support for a child of a prior relationship, and contributing to that child’s post-secondary expenses, although the exact amount he is paying is not known. Nonetheless, this has an important impact on the father’s ability to pay spousal support. Furthermore, the mother is young and I have been provided with no evidence explaining why she is not currently employed, or unable to find work at this time. She is also currently residing with her parents and her financial statement does not indicate that she is paying any rent at this time (in fact, her sworn financial statement makes no mention of her current monthly expenses). She indicates that she will be moving out when she secures subsidized housing (she is on an emergency list for that).

[13] Based on the above, I find that the low range of spousal support is appropriate in the circumstances of this case, at least for the time being. Therefore, I order that the father pay the mother spousal support in the amount of $640, retroactive to July 4, 2020, and on the 4^th day of each month thereafter until varied by a court of competent jurisdiction.

[14] The mother also seeks an order requiring the father to maintain the children and herself as beneficiaries of his health and dental insurance plan available to him through his employment, and I so order.

Madam Justice Julie Audet

Released: April 20, 2021

COURT FILE NO.: FC-20-1004-1

DATE: 20210420

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

TONYA LEANNE BRIAND

Applicant

– and –

DARREN FRANCIS BROPHY

Respondent

REASONS FOR decision

Audet J.

Released: April 20, 2021

[^1]: Carol Rogerson and Rollie Thompson, “Spousal Support Advisory Guidelines (SSAG): A Draft Proposal” (Ottawa: Justice Canada, January 2005).

Briand v. Brophy, 2021 ONSC 2956

Case Summary

REASONS FOR decision

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Counsel

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Areas of Law

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Issues