Court File and Parties
COURT FILE NO.: 20-174 DATE: 20210625 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Karlee Blanchard, Applicant AND: Ryan Lefebvre, Respondent
BEFORE: The Honourable Justice Laurie Lacelle
COUNSEL: Stephane Perreault, Counsel for the Applicant Respondent is Self Represented,
HEARD: June 24, 2021
ENDORSEMENT
1The Applicant brings a motion for interim spousal support. While the Respondent agrees some support is payable, he is opposed to the quantum of the award sought by the Applicant.
Overview of the evidence
2While the parties disagree about the exact date they started cohabiting (the Applicant says it commenced in November of 2014 while the Respondent says it was in October 2015), they do both agree it was at least from October of 2015. On September 3rd, 2017, their daughter P. was born. They separated on May 4, 2020.
3The Applicant is currently the primary caregiver to P. On consent, a final parenting order relating to P.’s care was made earlier this year. An order for child support was also made, which fixed the Respondent’s child support payment at $1, 201 monthly based on an income of $137, 023.00, payable from March 1, 2021. The Respondent is also making contributions to P.’s RESP.
4The Applicant took a maternity leave for one year after P. was born. While the parties cohabited, she worked in various capacities but always earned a much more modest income than the Respondent. Between 2015 and 2019, the Applicant’s income ranged between $6, 101 to $16, 816.00 annually. Her income for 2020 was $21, 062.00. This reflects receipt of the CERB benefit during the pandemic.
5The Applicant has limited education. She says that after P.’s birth, she worked as a hairdresser approximately 3 days per week (the Respondent says she worked less than that). She is currently unable to work due to COVID-related restrictions and limited day care options for P. She is paying half the daycare expenses for P. on a current income of approximately $24, 752 per year.
6The Respondent is employed as a manager at a car dealership and has been for a number of years. His income between 2017 and 2020 ranged from $108, 708 in 2017 to a high of $137, 023 in 2019. His income for 2020 was $134, 108. His most recent pay stub shows he is on track to earn $130, 027.99 this year. As I understand the pay stub, given the submissions, this amount would be less if he took vacation time (as he will this summer with P.) and did not receive payment in lieu of time not taken. Based on this pay stub, his income would be projected to be in the area of $124, 610.13 in that event. During submissions, the Respondent emphasizes there are no guarantees he will achieve this income, particularly during the pandemic, when the supply of vehicles to sell (even if customer demand is sustained) is uncertain.
7Post separation, the Applicant moved out of the house the couple shared, since it is solely owned by the Respondent, who continues to live there. The Applicant first had to stay with her parents. She states that she has incurred further debt since the separation as a result of having to move and set up a new home for her and P.
8The Respondent’s financial statement confirms he has significant assets and little debt outside of his mortgage.
The legal principles
9A threshold issue in considering a claim for spousal support is whether the claimant is entitled to such support: Halliwell v. Halliwell, 2017 ONCA 349.
10The compensatory basis for spousal support was recognized by the Supreme Court of Canada in Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813. The conceptual basis for this type of support was succinctly explained in this way in Ludmer v. Ludmer, 2013 ONSC 784 at para. 215:
This is in recognition that upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage. Specifically, compensatory support is intended to compensate a spouse upon relationship breakdown for contributions made to the relationship and to recognize sacrifices made and the advantages to one spouse and disadvantages to the other, both during and after breakdown of that relationship. It is to compensate for foregone careers and missed opportunities during the marriage, and to serve as reimbursement for hardships accrued as a result of the marriage breakdown.
11The law also provides for spousal support to be made on a non-compensatory, or needs- based basis: Bracklow v. Bracklow at para. 49. As explained in Gray v. Gray, 2014 ONCA 659 at para. 27, “[o]ne of the objectives of the Divorce Act is to relieve economic hardship. 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”. 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.
12The 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. 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.
13Insofar as assessing a payor’s income is concerned, the starting point for determining income under the SSAGs is the definition of income under the Federal Child Support Guidelines (SSAGs, s. 3.3.2), which are identical to the provincial Child Support Guidelines: Halliwell v. Halliwell, 2017 ONCA 349.
14Support 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.
15Insofar as interim orders are concerned, various Courts have provided direction as to the Court’s approach. 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.
16With 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.
17These principles all apply when the spousal support claim is made under the Family Law Act, as is the case here, since the parties were not married.
The positions of the parties
18The Applicant submits that the best evidence of the parties’ incomes in this case is from 2020, when the income for the Respondent was $134, 108 and that of the Applicant was $21, 062. A spousal support payment, according to the SSAG, would range from $1, 741 to $2, 720, using the “with child support formula”. The mid-range figure would be $2, 232. Nevertheless, the Applicant proposes that her income be adjusted to $25, 000 for the purposes of this motion. This results in a range of $1,591 at the low end, $2, 579 at the high end, and $2, 098 at the mid-range. She argues that this mid-range figure is appropriate and fair, having regard to the evidence establishing her economic dependency during the relationship, the economic impact of being the primary caregiver to their daughter who is still very young, and the impact of COVID restrictions on her ability to work as a hairdresser. The Applicant also emphasizes that the Respondent has a clear ability to pay this amount. Insofar as the Respondent’s arguments are concerned, she suggests these issues will affect the duration of the order, which is not at issue today. She asks the Court to order $2, 098 in spousal support starting July 1st, 2021.
19The Respondent submits that he wants to do what is fair for both the Applicant and their daughter. As I understand his position, he does not take issue with the fact that spousal support is payable, his concerns are about how much that award will be, and how long it will last. He submits that the Applicant suffered no economic impact as a result of the relationship and benefitted to the extent that she was well taken care of when living with him. He suggests that the Applicant’s needs can be addressed with an award at the lower end of the range. He emphasizes that his income is also uncertain during the pandemic, particularly with the shortage of computer chips that are necessary to increase the inventory of cars available to sell.
Analysis and Decision
20I have concluded that given that this is an order for interim spousal support and given the uncertainties about the parties’ incomes going forward, the fairest approach is to use the third scenario presented in the DivorceMate calculations presented by the Applicant. That scenario fixes the Respondent’s income at $125, 000, which reflects the best estimate of his income for 2021 if he takes vacation time. I find that using this figure, at least for an interim order, is fair as it is the best evidence I have as to what impact the pandemic has recently had on the Respondent’s ability to earn an income.
21This scenario also fixes the Applicant’s income at $25, 000, which reflects the CERB benefit she is currently receiving. The evidence is clear she has never otherwise earned this level of income, and it too is uncertain. However, that is her income today, and I find it is fair to base the interim spousal support order on that figure.
22This results in spousal support payable in the range of $1, 344 at the low-end, $1, 821 at mid-range, and $2, 297 at the high end. While these ranges are not binding on the Court, and there is no presumption that the mid-range will apply, I do find the mid-range figure to be fair in this instance.
23I find this figure is fair because it is based on an income level for the Respondent that he may actually exceed before the final resolution of the spousal support issue. There is some merit to the Applicant’s submission that the 2020 income figures should be used, as it was to calculate the child support award. The use of the lower figure is more conservative, and in my view is appropriate given the interim nature of the order.
24This award is also fair to the Applicant, having regard to the economic impacts of the relationship. There is evidence of economic dependency during the relationship that establishes need in this case. In addition, the Applicant is the primary caregiver for P., and has reduced opportunity to earn an income, even while she has the costs associated with having primary care of the child, and is sharing the significant costs of having a young child, such as daycare. The Respondent says he would have been prepared to care for P. as her primary caregiver and I do not doubt him. But this is not relevant to the legal analysis of what amount of spousal support is fair.
25The payment of $1, 821 in spousal support based on the income levels I am using leaves the parties with 49.8% net disposable income for the Respondent’s household, with 50.2% in the Applicant’s. Given that the Respondent is currently paying $1201 in child support, and not the $1,107 contemplated by DivorceMate at these income levels, this ratio is not entirely accurate. The figure with the increased $100 in child support is slightly higher for the Applicant’s household. Even so, I am still persuaded that the order for $1, 821 is fair in the circumstances.
26This is a temporary order which does not address how long spousal support will be payable. That issue, and others, such as the appropriate incomes to be used in determining the amount of any final order, may be negotiated by the parties, or, if necessary, decided by the Court. Any final order will reflect consideration of some of the issues raised by the Respondent today.
Conclusion
27Accordingly, the Respondent shall pay spousal support to the Applicant in the amount of $1, 821 monthly, commencing July 1st, 2021.
28If the parties are unable to resolve the issues of costs for this motion, written submissions of no longer than 3 pages (plus any relevant attachments) may be forwarded to my attention. The Applicant shall have 4 weeks from today to file her submissions. The Respondent shall have a further 4 weeks to file his response.
The Honourable Justice Laurie Lacelle
Date: June 25, 2021