Court File and Parties

Court File No.: FS-20-13701 Date: 2021-10-28 Superior Court of Justice – Ontario Family Court

Re: Catherine Ann Dickson, Applicant And: Kenneth Brian Dickson, Respondent

Before: Aston J.

Counsel: K. Rhodes, for the Applicant G. McFadyen, for the Respondent

Heard: October 26, 2021 (virtual hearing)

Endorsement

[1] The respondent husband brings this motion for a temporary order for spousal support.

[2] The parties separated ten years ago after almost 30 years together. Their three children are all now independent adults.

[3] Mr. Dickson is 67 years old. He has been self employed since about 2013. Total income from his bicycle repair and assembly business, Canada Pension Plan and Old Age Security benefits totals about $31,000 annually, without any close examination of his declared self employment income. Since separation he has lived modestly, apparently within his means, according to the “expenses” portion of his Form 13 Financial Statement.

[4] Mrs. Dickson is 62 years old. She earns employment income projected at $91,800 for 2021. Together with Canada Pension benefits her total income is about $100,000. She assumed virtually all the family debt after separation and ultimately had to make an assignment in bankruptcy. Mr. Dickson continued to reside in the matrimonial home for about a year after Mrs. Dickson and the children moved out. He did not make any mortgage payments and the home was sold under power of sale.

[5] There is no evidence to support a finding that the husband is entitled to compensatory spousal support. If anything, just the opposite. I therefore assume at this stage that his claim is for non-compensatory support, based on need and ability to pay.

[6] Disparity in incomes does not establish, in and of itself, an entitlement to spousal support. The Spousal Support Advisory Guidelines (SSAG) Users Guide is very clear that a determination of entitlement under the Divorce Act is still a condition precedent to an order for support.

[7] One of the objectives of a support order under s.15.2(6) of the Divorce Act is the promotion of self sufficiency. To establish entitlement based on “need” a spouse is first required to show their inability to become self sufficient, in whole or in part. The assessment of “need” is based on a reflection of the standard of living the parties had while together, so the husband in this case is not limited to the modest lifestyle he has adopted. On the other hand, the evidence on this motion supports a finding that he has been intentionally unemployed and underemployed the last ten years or longer. His bicycle business may be “a labour of love” but he cannot expect his estranged spouse to subsidize his past and present devotion to it. Given his age it is not realistic to expect him to look for something more lucrative now, but the point is that his current financial situation is a consequence of his own choices over the last decade.

[8] The failure to make a reasonable effort at self sufficiency, as here, does not disentitle a spouse to support. It usually invites a notional imputation of income. Alternatively, it invites a quantification of support lower in the SSAG range, or even below the “low” figure in that range. In this case the low end of the range would be about $2,150 per month.

[9] Mr. Dickson has had various work experiences. To single out just one, he was a truck driver who went on to teach truck driving. Ten years ago, on separation, it would have been appropriate to impute income to him. Today that approach is just artificial and arbitrary. Ten years ago, the income to be imputed to him might have defeated his entitlement to support. Today, at the very least, it raises a triable issue on the threshold question of entitlement.

[10] This is a genuine issue for trial. If the husband is unsuccessful at trial, recovery of any support paid under a temporary order is unlikely.

[11] Having regard to those factors, the husband’s historical ability to live on his own resources and the fact that his self declared self employment income has not been tested, I opt to make a temporary order in his favour but only for a modest amount – below the suggested SSAG range.

[12] The applicant shall pay to the respondent temporary spousal support of $1,000 per month, commencing November 1, 2021.

[13] If either party made an offer to settle under Rule 18 prior to the motion I will entertain written submissions on costs within the next 20 days.

[14] Otherwise there shall be no costs of the motion.

Justice D.R. Aston

Date: October 28, 2021