Corrected Decision: The text of the original Ruling was corrected on June 18, 2021 and the description of the correction is appended.

RULING ON MOTION

Douglas J.

Overview and Background

[1] This is the applicant’s motion for temporary spousal support in the amount of $1810 per month commencing February 1, 2021, without prejudice to her right to seek further retroactivity at trial.

[2] The respondent disputes entitlement and submits the applicant can earn more than she does and accordingly there is no genuine need for support.

[3] The parties commenced cohabitation in August 2004 or March 2005. They separated in August or September 2019; thus, they cohabited for approximately 14 or 15 years. For the purposes of this motion, nothing turns on these differences in position.

[4] The applicant immigrated to Canada when she was about 10 years old. She had completed Grade 5 in Italy. She was unable to speak English upon arrival in Canada and accordingly she did not complete any further education. At age 16 she began working in a factory.

[5] When the parties commenced cohabitation, the applicant worked full time as a cook earning approximately $35,000 per year. In addition, she had rental income of “a few thousand dollars net per year” from a property in Bradford, Ontario. Title to that property was registered in her name but held in trust for her four children pursuant to a trust agreement between herself and the father of the four children (not the respondent herein).

[6] In 2010 she left her employment as a cook, deposing that she began “experiencing anxiety attacks due to the long hours and the stress associated with the job.” She decided to leave the job and start a daycare business working from home.

[7] The applicant’s employment history above is not disputed by the respondent.

[8] Both parties have children by prior relationships, all of whom I understand to be independent. There are no children of this relationship.

[9] The applicant is 64 years of age. The respondent is 73 years of age.

[10] There is no dispute that in 2020 the respondent’s income totals approximately $93,423 (being comprised of pension $71,871 plus CPP $13,702 plus OAS $7,850). In 2019 his income from similar sources totalled $92,320.00.

Legal Framework

[11] This motion engages s. 33 of the Family Law Act. Section 33(9) sets out, non-exhaustively, the factors to consider. I will not repeat them here.

[12] Applications for temporary spousal support require the court to address the following issues:

(a) Does the applicant have standing?

(b) Is the applicant entitled to support?

(d) What is the respondent’s ability to pay? (See Balayo v. Meadows, 2013 ONSC 5321)

[13] In considering issues of child support, the Child Support Guidelines contemplate the possibility of imputing income where a parent is intentionally under-employed or unemployed. The Guidelines, and the cases developed thereunder, do not apply directly to issues of spousal support; however, some of the principles do have relevance; for example, in MacDougall v. Rousselle, 2016 NBQB 146, the court found that the consequences of choices by a parent not to pursue employment should be borne by that parent. The same can be broadly said of spouses within the context of a s. 33 analysis.

[14] There is an obligation on a spouse to take reasonable steps to contribute toward their own support and this must be considered. Failure to adduce evidence in this regard may result in dismissal of a claim for temporary spousal support. (See Podgorni v. Podgorni, 2010 ONSC 1070).

[15] The following eight principles may be considered on motions for temporary spousal support:

(a) On applications for interim support, the applicant’s needs and the respondent’s ability to pay assume greater significance;

(b) 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;

(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;

(d) The court should not unduly emphasize any one of the statutory considerations above others;

(e) On interim applications, the need to achieve economic self-sufficiency is often of less significance;

(f) Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise;

(g) Interim support should be ordered only where it can be said a prima facia case for entitlement has been made out;

(h) 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. (See Wilkins v. Wilkins, 2018 ONSC 3036).

[16] A party who wishes to have her medical condition considered as a basis that she cannot work bears the onus to establish material disability. She must establish that the extent of her condition disables her from work. This onus cannot ordinarily be discharged solely based on the party’s testimony; she would need to produce medical records and expert evidence about her condition, prospects and treatment. (See Geishardt v. Ahmed, 2017 ONSC 5513).

Analysis

[17] The respondent concedes the applicant’s standing to bring this motion. As noted above, the primary issues are whether the applicant has established entitlement to spousal support, and, whether she has established need. The issue of need involves determination of the applicant’s income and earning capacity.

The Evidence

[18] I intend first to review the evidence before me.

Daycare Income

[19] There is a factual dispute regarding the applicant’s historical daycare income.

[20] The applicant deposes that her income from the daycare business fluctuated from year to year based on the number of children in her care and whether they required full or part time care. She summarizes her income from this source as follows:

a. 2016: $5168

b. 2017: $5718

c. 2018: $5250

d. 2019: $6883

[21] She deposes that all her income earned from the daycare business was reported in her tax returns as summarized above.

[22] The respondent’s challenges to the applicant’s evidence in this regard, and my comments on these challenges, are as follows:

a. He says the applicant charged $45 per child per day for daycare services and that she usually had seven or eight children in her care. On this basis he calculates gross income of $70-90,000 per year for the applicant. In reply, the applicant deposes that she was unsuccessful in implementing the increased daycare fee of $45 per day per child. She indicates that only two children were charged at that rate. On this contradictory evidence I come to no conclusions on this point.

b. The respondent says that invoices provided to him by way of disclosure confirm that in 2018 she had total receipts of $44,000 approximately but her 2018 income tax return shows a gross income of only $26,035. The applicant does not explain this in her reply evidence. I find it is likely she under-reported her income to CRA in 2018.

c. The respondent refers to a photograph showing seven of nine children the respondent says the applicant was caring for in September of 2016. He says in 2017 she cared for nine children and in 2018 she cared for twelve children (although not more than 8 children at a time). The applicant denies looking after more than five children at a time except on rare occasions such as that captured in the photograph taken in September 2016, at March Break or over the Christmas holidays. I make no findings on this contradictory and inconclusive evidence.

d. The respondent alleges that much of the applicant’s income is cash. There is evidence of admissions through counsel that the applicant’s income from cleaning work at Canadian Tire went undeclared ($24,000 in 2017, $21,000 in 2018 and $14,000 in 2019). I find there is good reason to be very cautious in accepting the applicant’s evidence regarding her income at face value, given her demonstrated readiness to provide false income information to CRA.

e. The respondent alleges that the applicant has yet to disclose all her bank accounts. The applicant says that she has. I come to no conclusions either way on this contradictory evidence, particularly in the absence of any motion by the respondent for relief in this regard.

f. The respondent alleges unreasonable deduction of expenses from the applicant’s daycare income. There may be good reason to question the validity of some of the business expenses claimed by the applicant in reduction of her taxable income. She deducted approximately $1800 in vehicle expenses in 2018, but how the use of the vehicle is necessary to run a daycare business from her home is unclear. It is incumbent upon the applicant to prove this. She also deducted over $12,000 in “business use of home” expenses without explaining how the operation of the business from her home specifically generated these expenses.

[23] The applicant says that her daycare business began to deteriorate in the Fall of 2018 when she required a “medical procedure” followed by nine weeks of recovery during which she was unable to continue with the daycare. She says that she resumed daycare services again in December 2018 and by November 2019 she was only caring for one child on a part-time basis. The respondent does not directly contradict the applicant’s evidence in this regard. He does not deny that she was recovering from medical intervention for in excess of two months approximately one year prior to separation, following which the number of children she cared for was significantly reduced. The respondent says that prior to separation, in 2019, the applicant started reducing the number of children in her care and at the time of separation she had only two children in her care.

[24] Thus, the evidence of the parties is largely consistent that in the year leading up to separation the applicant had a medical intervention followed by over two months of recovery, followed by significant reduction in the number of children she was caring for in her daycare business.

[25] I find for the purposes of this motion that the applicant’s daycare income was likely higher than she submitted to CRA. Having said that, it is difficult to establish a reliable figure on the evidence before me. Shortcomings in this regard must work against the applicant, who bears the burden of proving her income.

Rental Income

[26] Regarding the applicant’s rental income, I am satisfied that in September 2017 the Bradford property was sold to one of her daughters and the value of the property was divided equally amongst the four children. As a result, she no longer receives rental income from this property.

Effect of Applicant’s Current Residential Circumstances

[27] The respondent proposes that the applicant use her daughter’s residence to operate the daycare business.

[28] The applicant says she started living with her daughter Josephine in her home in January 2020 after sale of the parties’ jointly owned residence. She continues to live with her daughter Josephine, saying that she cannot afford to purchase a home of her own.

[29] The applicant asserts that it is impractical for her to operate a home daycare business in her current circumstances. She says her daughter’s home is not large enough to accommodate a full daycare business; further, there is a tenant living in the basement who works evenings and needs to sleep during the day. She further indicates that the restrictions in place due to the pandemic has decreased demand for daycare services as many parents are now working from home and able to care for their children without the need for daycare.

[30] The applicant acknowledges that she did operate her daycare business from her daughter’s home in 2018 due to the fire damage, for a limited period of two months only.

[31] There is also the issue of the applicant’s health, addressed further below.

[32] For the purposes of this motion, I accept the applicant’s submissions on this point. I am satisfied that it is impractical to expect the applicant to operate her daycare business from her daughter’s home, due to her lack of control over the residence (as a non-owner) and space limitations.

Effect of Sale of Jointly Owned Residence

[33] The parties’ jointly owned home was sold after separation. It was from this residence that the applicant previously operated her daycare business. Net proceeds of sale of approximately $200,000 remains in trust pending agreement or order as to disposition.

[34] The respondent says that the applicant cannot rely upon the sale of the parties’ home in support of her position that she can no longer operate the daycare business, as it was the applicant who insisted on selling the property. The respondent says he assumed the applicant would carry on the daycare business in one of her daughters’ homes (as she did briefly in 2018). He maintains the applicant did not tell him that selling the house would negatively impact her daycare business.

[35] The applicant says that she had been seeking sale of the home for at least two years prior to separation because it was too expensive to maintain and she wanted to scale back the daycare business; however, the respondent always refused to sell the house until after he was contacted by the applicant’s lawyer following separation. This evidence is disputed by the respondent.

[36] For the purposes of this motion the evidence supports the conclusion that the applicant was more interested in selling the residence than was the respondent and that the parties did not discuss the impact of the sale upon operation of the daycare business. Ultimately, the sale was concluded with the consent of the parties, post-separation.

[37] The fact of sale of this property, and its possible impact upon the applicant’s income, should be considered in conjunction with other factors, such as the applicant’s health, discussed further herein, and the respondent’s decision to consent to the sale without any clear picture as to how the applicant would generate daycare income thereafter.

Canadian Tire Income

[38] For the reasons noted above, I find the applicant’s income from Canadian Tire was $24,000 in 2017, $21,000 in 2018 and $14,000 in 2019

[39] The applicant says that she left the Canadian Tire job near the end of November 2019 (months after separation) because of the hostility between the parties working together at Canadian Tire and the stress that arguments created for her. The respondent does not directly contradict this evidence. I accept the applicant’s evidence on this point.

Lifestyle

[40] The applicant says the respondent was throughout the parties’ relationship the primary earner. He paid for the mortgage, property taxes and property insurance while she paid the smaller expenses such as utilities and groceries. She also contributed by doing all the cooking, cleaning, laundry, decorating and organizing of social gatherings with friends and relatives.

[41] The applicant says that both parties were addicted to gambling and through this incurred significant debt. She says she has not gambled since separation. The respondent denies the applicant’s assertion that both parties are addicted to gambling. He denies gambling yet concedes going to the casino with the applicant “rarely”. He asserts that she lost tens of thousands of dollars through gambling and increased the parties’ debt. I find it is likely the parties did gamble together, but I can make no further findings on this contradictory and inconclusive evidence.

[42] The respondent denies that he paid the majority of the expenses during the parties’ relationship. He says he paid the mortgage while she paid for the groceries, “her hair, nails eyelashes and similar expenses.”

[43] On the evidence available on this motion, I find it likely the respondent generated consistently more income than the applicant and that he bore the burden of the majority of the parties’ living expenses.

[44] There is little evidence regarding lifestyle; however, I am satisfied that the parties enjoyed a comfortable lifestyle, one that is out of the applicant’s reach at her current level of income. Her lifestyle has been diminished as a result of separation.

Applicant’s Efforts to Pursue Employment

[45] Regarding the applicant’s efforts to secure employment, she says that her medical condition limits her employment options. She deposes she suffers from arthritis in her hips, chronic back and leg pain and that such renders her unable to walk or stand for long periods of time, and she also suffers from asthma. She deposes that her medical circumstances and the COVID-19 restrictions make it difficult for her to find a job.

[46] There is no evidence the applicant searched for employment post-separation until November 2020. She says she was unable to search earlier due to severe stress from the separation and moving from the joint property. I find it difficult to accept this evidence without supporting medical evidence. I find it likely the applicant could have commenced a job search much earlier than she did.

[47] Having said that, given her age and health issues, the applicant’s employment prospects should be viewed as limited at best.

Applicant’s Health Circumstances

[48] The applicant asserts that her health circumstances preclude her from realistically pursuing gainful employment.

[49] In support of this position she produces a letter from her family doctor dated March 28, 2021. The doctor has been caring for the applicant for over 20 years. The applicant is described as a “very active and hardworking person” since the doctor has known her. The doctor confirms awareness of the applicant’s employment as a cook and as a daycare provider. The doctor confirms awareness that the applicant has found this employment more difficult due to her osteoarthritis. The applicant reported increasing back pain in 2016. An x-ray at that time showed some “mild to moderate degenerative disc disease and a grade 1 spondylolisthesis…”. In January 2017 the applicant complained of some left knee discomfort and at that time her imaging was normal. Her knee pain was intermittent depending on her activity over the years as was her back discomfort. In September 2020 a repeat x-ray of her knee showed some early osteoarthritic change, indicating progression of her knee osteoarthritis compared to the imaging that was done in 2017. The applicant has been diagnosed with “hammertoes and osteoarthritis in her great toes”. The applicant reported that due to the discomfort in her back and her knees she has had to stop doing her work as a daycare provider. She is awaiting an orthopedic consultation regarding her feet. She finds she manages her pain with modifying her activity and has not required significant medication at this time.

[50] The doctor states, after noting the applicant’s 64 years of age, “…working any type of physical job would be difficult, particularly in light of her back and knee arthritis.”

[51] The respondent says he does not accept that the applicant is unable to work for health reasons. He does not explicitly attack the accuracy of the medical evidence or the qualifications of the professionals producing it. He says he has never seen the applicant experience the discomfort she alleges and that her ailments are not new.

[52] For the purposes of this motion, I find the medical evidence is unchallenged by contradictory evidence of similar quality. I am given no good reason to reject the medical evidence. I accept same. I therefore find the applicant, at 64 years of age, would find working any type of physical job to be difficult given her back and knee arthritis.

Applicant’s Current Income

[53] The applicant says her only source of income at present is her CPP pension in the annual amount of $6783.

[54] The respondent disputes this. He says he does not know what the applicant’s income is, and that she is capable of earning $65,000 (according to his affidavit) or $70,000 to $90,000 (according to counsel’s submissions on his behalf).

[55] While the evidence confirms a history of the applicant failing to fully disclose her income to CRA, and that she may have deducted illusory expenses from her daycare income, and that she may not have fully disclosed all of her daycare income to CRA, the evidence satisfies me that at the time of this motion the applicant’s only source of income is CPP.

Entitlement to Spousal Support

[56] Section 33(8) of the Family Law Act defines the purposes of an order for spousal support. In the context of this proceeding, those purposes include recognition of the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse, making fair provision to assist the spouse to become able to contribute to his or her own support and to relieve financial hardship if not done by orders under Parts 1 and 2 of the Family Law Act (neither of which applies here to this non-marital relationship).

[57] The court is not required to conduct an in-depth analysis of the issue of entitlement; rather, the party seeking support is only required to make out a good, arguable case for entitlement, whereupon the court will assess support on the basis of the parties’ needs and means (Robertson v. Hotte, 1996 CarswellOnt 1506 (Ont. Gen. Div.)).

[58] In Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 SCR 420, the Supreme Court of Canada noted the statutes and caselaw suggest three conceptual bases for entitlement to spousal support:

a. Compensatory

b. Contractual

c. Non-compensatory.

[59] The court must look at the factors in light of the stipulated objectives of support and exercise its discretion in a manner that equitably alleviates the adverse consequences of the breakdown of the relationship and strikes the balance that best achieves justice in the particular case. (See Wilson v. Marchand, 2007 ONCJ 408, [2007] O.J. No. 3738 (Ont. C.J.)).

[60] While the evidence summarized above demonstrates that there is good reason to assess the applicant’s income history with care, I am satisfied, for the purposes of this motion, that she currently has one source of income (CPP), her employment prospects are poor given her age and health, the respondent had historically been the greater earner in the household, the parties cohabited for 14 to 15 years and the applicant has been disadvantaged by the breakdown of the parties’ relationship.

[61] I find a good, arguable case is made out for entitlement to spousal support on non-compensatory grounds.

The Parties’ Means and Needs

[62] I turn now to a consideration of the factors set out in s.33(9) of the Family Law Act.

[63] The parties’ have filed sworn financial statements. The applicant’s statement reveals little income apart from CPP, tax rebates and CERB payments (now ended). She has little access to savings apart from $13,000 remaining from her mother’s estate ($14,000 received in November 2020).

[64] The respondent’s financial statement shows income rounded to $90,000 per year, expenses of $87,645 per year including meals outside the home of $200 per month, vacations of $150 per month and gifts of $210 per month. In addition to his interest in the proceeds of sale of the parties’ jointly owned residence, he also has a third interest in another property worth approximately $200,000, approximately $10,000 in a chequing account and an investment account with approximately $49,600. He also has several debts with respect to which he deposes he is making monthly payments totaling $3550 on pages 5 and 6 of his financial statement (contradicting his evidence at page 4 of his financial statement that he is making debt payments totaling $1850 per month).

[65] Given the parties’ ages I am not satisfied at this time that either of them should be expected to develop significantly different assets and means in the future.

[66] When I consider the applicant’s age, the medical evidence referenced above, the fact that her daycare business had already been dramatically reduced as of separation and the absence of a residence from which the applicant can realistically operate a daycare business (assuming she was physically able to do so), I am satisfied that the applicant’s capacity to contribute to her own support is quite limited at this time. I say this with an awareness of the applicant’s prior failure to fully disclose her income to the Canada Revenue Agency, as a consequence of which I consider her evidence with caution. There is no evidence that she currently has any other sources of income other than those disclosed in the applicant’s financial statement. The respondent’s suspicions to the contrary are not sufficient.

[67] With the medical evidence before me, combined with the applicant’s age, I would not be inclined to impute additional income to the applicant. It is not realistic to expect the applicant to actively pursue measures to become able to provide for her own support.

[68] In short, I am satisfied the applicant is in need of spousal support.

[69] Given the respondent’s income, I am readily satisfied that he has the ability to provide support.

[70] Neither party appears to have any legal obligation to provide support for any other person.

[71] In addition to the forgoing, I also consider that the parties have cohabited for approximately 14 to 15 years. The evidence is insufficient to persuade me as to any effect on the applicant’s earning capacity of the responsibilities she has assumed during cohabitation. I am satisfied that the applicant has performed domestic services as described above in her evidence and that the parties both benefited from these services, contributing to the family’s support.

[72] I have not been made aware of any other possible source of support for the applicant other than out of public monies.

[73] In these circumstances I would not attribute income to the applicant beyond her CPP of $6783.

[74] In 2019 the respondent’s income was $92,320. This is almost identical to the figure identified in the applicant’ notice of motion as the proposed foundation for the spousal support order. I will use this figure for the respondent’s income.

[75] On these incomes the Spousal Support Advisory Guidelines suggest a range of $1550/1809/2067 per month.

[76] The midpoint of $1809 per month payable by the respondent to the applicant results in a division of net disposable income of approximately 67.5%/32.4% in favour of the respondent.

[77] The SSAG are not binding but there must be a good reason to depart from them. I do not perceive any such reason here.

Conclusion

[78] For the foregoing reasons:

a. Commencing May 1, 2021 the respondent shall pay temporary spousal support to the applicant in the amount of $1809 per month;

b. This order shall be without prejudice to the applicant’s claim for retroactivity;

c. Support deduction order to issue;

[79] If unable to agree on costs, written submissions (restricted to 3 pages excluding Rule 18 offers and bills of costs) may be delivered to the court BarrieSCJFamily@ontario.ca with a copy to my assistant (bev.taylor@ontario.ca) as follows:

i. The applicant, by May 14/21;

ii. The respondent, by May 28/21;

iii. The applicant, in reply, by June 4/21.

Justice P. A. Douglas

Released: June 18, 2021

June 18, 2021 Correction:

Paragraph 13 now reads:

[13] In considering issues of child support, the Child Support Guidelines contemplate the possibility of imputing income where a parent is intentionally under-employed or unemployed. The Guidelines, and the cases developed thereunder, do not apply directly to issues of spousal support; however, some of the principles do have relevance; for example, in MacDougall v. Rousselle, 2006 NBQB 146, the court found that the consequences of choices by a parent not to pursue employment should be borne by that parent. The same can be broadly said of spouses within the context of a s. 33 analysis.

Cipponeri v. Meli, 2021 ONSC 3232

Case Summary

Corrected Decision: The text of the original Ruling was corrected on June 18, 2021 and the description of the correction is appended.

RULING ON MOTION

Legal Framework

Analysis

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 1