Court File and Parties
COURT FILE NO.: FS-19-100-00 DATE: 2022 02 24
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Chantal Vermeire v. John Bates
BEFORE: Fowler Byrne J.
COUNSEL: Erin L. Reid, for the Applicant Trevor Moum, for the Respondent
HEARD: February 3, 2022
E N D O R S E M E N T
[1] The Applicant Mother seeks interim child support and interim spousal support from September 1, 2019, to present, based on the Respondent Father’s income during the applicable years. She is willing to give the Father credit for the amounts received to date.
[2] The Father consents to the child support that is being sought. There is also no issue with respect to each party’s declared income. The only issues are whether the Mother is entitled to spousal support, and if she is, whether further income should be imputed to the Mother due to her underemployed and alleged underutilization of a significant capital asset. The Father seeks an order that no spousal support be paid at all.
Litigation Background
[3] The parties separated on June 5, 2018, after a marriage of approximately 18 years. They have two children, a daughter, who is 20 years old, and a son, who is 17 years old. The daughter is currently in university. The son is still in high school and has some health challenges, as detailed below.
[4] The parties were first before the court on February 24, 2020. On that date, the Mother requested interim child support, interim spousal support, and that her share of the proceeds from the sale matrimonial home be released to her. In his decision, Justice Ricchetti stated:
There is no dispute that the Mother is entitled to interim spousal support, at least for the short term. The issue is quantum and duration of any interim order.
[5] In his decision, Justice Ricchetti recognized that the Mother’s potential income from a family farm made the question of interim spousal support difficult to determine. Accordingly, he ordered that the Mother be paid interim spousal support in the sum of $1,799 per month, but granted leave to either party to seek a variation of this sum, without having to show a material change in circumstances, once the Mother had made financial disclosure regarding the family farm and after questioning. The amount awarded on that day was suggested by the Father, which imputed income to the Mother of $21,000, in the mid-range, pending further financial disclosure. The spousal support sum of $1,799 was to start on September 1, 2019, which is the first full month after the matrimonial home was sold.
[6] The Mother has provided more disclosure which indicate that her income is substantially less than $21,000. The Father seeks an order that no spousal support be payable as of September 1, 2019. By contrast, the Mother seeks spousal support in the sum of $3,331 from September 1, 2019, until the end of 2019, the sum of $3,054 for 2020, and then at the rate of $3,037 per month as of 2021, less the amounts received to date from the Father.
Issues
[7] The parties agree that child support is payable on the Father’s income. Given the endorsement of Justice Ricchetti, the issue of entitlement to spousal support has already been decided. I concur, and find that entitlement on an interim basis has been made out on both a compensatory and non-compensatory basis. Although this is technically a motion for a variation, the endorsement of Justice Ricchetti does not require either party to show a material change in circumstances. Accordingly, the following issues must be determined:
a) Should income be imputed to the Mother on the basis of being intentionally unemployed or underemployed?
b) Should income be imputed to the Mother for the underutilization of a capital asset, namely her equalization payment and the family farm?
c) What amount of interim spousal support, if any, should be paid pending trial?
Analysis
A. Interim Spousal Support
[8] My authority to award interim spousal support order is found at s. 15.2 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). The factors and objectives that I must consider under ss. 15.2(4) and 15.2(6) do not differentiate between interim and permanent spousal support orders. That being said, in Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689, at para. 24, Justice Chappel sets out the general principles that apply when dealing with motions for temporary spousal support (citations omitted):
- 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.
- 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.
- 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.
- The primary goal of 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.
- 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.
[9] In Driscoll v. Driscoll, Justice Lemon adopted the principles for temporary spousal support as set out in the British Columbia case of Robles v. Kohn, 2009 BCSC 1163:
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 courts 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 only be ordered where it can be said a prima facie 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.
[10] This decision continued to be adopted and applied: Haughton v. Corner 2022 ONSC 869, at para. 6-10; Liu v. Xie, 2021 ONSC 7535, at 73.
[11] In the case at hand, entitlement has clearly been made out. Accordingly, the Mother has satisfied her onus to show a prima facie case. The issue that remains is the quantum, which is dependant on whether any income is imputed to her at this time. For the foregoing reasons, I find that the Mother has shown a prima facie case for spousal support in the range of the quantum sought.
A. Imputation of Employment Income
[12] The onus is on the person requesting an imputation of income to establish an evidentiary basis for such a finding: Homsi v. Zaya, 2009 ONCA 322, 248 O.A.C. 168, at para. 28.
[13] In Lawson v. Lawson (2006), 81 O.R. (3d) 321 (C.A.), at para. 36, following Drygala v. Pauli (2002), 61 OR (3d) 711 (C.A.), the Court of Appeal for Ontario stated that:
When imputing income based on intentional underemployment, a court must consider what is reasonable in the circumstances. The factors to be considered are the age, education, experience, skills and health of the payor, as well as the payor's past earning history and the amount of income the payor could earn if he or she worked to capacity.
[14] Interim spousal support motions are not the place to impute income: Lamb v. Watt, 2017 ONSC 5838, at para. 34; Leitch v. Graham-Leitch, 2017 ONSC 7197, at para. 28. Even if I thought it was appropriate to consider imputing income to the Mother at this interim stage, the Father has not satisfied me, on the balance of probabilities, that the Mother is able to earn more income.
[15] In 2007, during the marriage, the parties started their own shipping franchise. Their children were approximately 6 and 3 years old. During this time, the Mother was responsible for its day to day operations. In 2009, their son was diagnosed with autism. The business was sold in 2010, and the parties agreed at that time that the Mother would stay at home to assist with the son and his needs. Prior to the purchase of the shipping franchise, the Mother was a funding manager and also worked in accounting and collections.
[16] In addition, the mother has had no vision in her left eye, which has been the case since she was a child. She has now developed cataracts in her right eye, that makes night driving as well as close work difficult.
[17] During this time, the Father continued to work outside the home and advance his career. He is currently a Senior Manager, Finance at Bell Canada. His income in 2021 was $105,030, he is eligible for an incentive plan of 18% for that year and continues to contribute to a sizeable pension.
[18] The parties agree that the son is on the autism spectrum and has learning disabilities in the areas of working memory, attention, and phonological processing. The son has an Individual Education Plan (IEP) a school. In addition to his autism diagnosis, the son was also diagnosed with a learning disability in 2014, when he was 10 years old.
[19] The Mother maintains that their son has high needs. She stayed at home with him during the pandemic for online learning. Prior to the pandemic, she assisted with his behaviour outbursts which at times caused their son to be sent home from school. Their son continues to learn online and is doing better than attending school in person. She wishes to remain at home to educate the son. The parties have already reached an agreement that the son will be in the Mother’s primary care.
[20] While the Father acknowledges the son’s various challenges, he disagrees that the son is high needs and that the Mother is required to stay at home to care for him. The Father argues that the Mother has experience and skills in office administration and that their son’s needs are accommodated at school to a large extent. He believes the Mother can earn $50,000, or $25,000 on a part time basis.
[21] The day to day impact of the son’s diagnoses, and the degree which the Mother is required at home, is very contested and is a triable issue. The parties disagree entirely in this subject.
[22] In addition, it is clear that the Mother has been out of the workforce for over twelve years, which is approximately two-thirds the length of their marriage. The Father’s expectation that the Mother should already be working outside of the home, earning her own income, while still attending to her home-schooled son with special needs, is unrealistic. The matrimonial home was sold almost three years ago, but she only received her share of the proceeds two years ago. Her son is still in school. The trial judge, on a full evidentiary record, will have a better understanding of the son’s needs, the Mother’s partial blindness, and her ability to become self-sufficient. Until then, at this interim stage, without a full evidentiary record, I am not satisfied that I should impute employment income to the Mother.
[23] It was also argued that the Mother should be able to earn employment income from the family farm. At this interim stage, the only evidence as to farm income is from the maternal grandmother’s tax returns which shows the net income on the farm to be negligible.
B. Income on Capital Assets
[24] In Leskum v. Leskum, 2006 SCC 25, 1 S.C.R. 920, at para. 29, the court indicated that it was correct to take into account a party’s capital assets acquired after the marital breakup when determining income for spousal support purposes.
[25] Unfortunately, the Father has not satisfied his onus, on an interim basis, that the Mother should be able to earn income on this significant capital asset.
[26] First of all, the value of the farm property is far from settled. The Mother maintains the farm is worth approximately $1,044,000, of which she owns a 25% interest, as an estate planning tool. The Father estimates the value is closer to $4.8 million, putting the Mother’s share at approximately $1.2 million. Neither party has produced a current valuation prepared by an expert in this area. Both parties concede that this must be done before trial. Without a clear picture of this value, it is difficult to attribute an income.
[27] Secondly, it is not clear what ability the Mother has to earn income on her undivided one-quarter interest in the farm. The evidence on hand shows that, save an outright sale, the income earning potential of this property has been maximized by the maternal grandmother. In fact, the Mother’s evidence is that the farm is only kept going by her brothers’ efforts, in a way to support their elderly mother. In his materials, the Father does not insist upon the sale of the farm property. Clearly, the income to be attributed to this capital asset, is a triable issue.
[28] The Mother did receive the approximate sum of $300,000 being her share of the proceeds of the matrimonial home and towards her equalization payment. The Mother should not be required to utilize this capital to support herself at this stage. The interest income, without any evidence on this issue, would be negligible and insufficient to support herself.
C. Support Payable
[29] The Mother seeks spousal support that varies each year from 2019. Spousal support is not to be varied yearly as is child support. As indicated above, the purpose of spousal support is to support the Mother pending trial, when a full evidentiary record is available. It is sufficient to set the amount once, and absent a material change, should remain the same until trial.
[30] I have reviewed the DivorceMate calculations attached to the Mother’s factum for the year 2020 and onwards and attach it here as Schedule A. The parties agree that the income stated therein is accurate.
[31] In order to satisfy the need for a “holding order” and to keep the Mother in a lifestyle similar to that while married, or at least to be similar to that of the Father, I find the Mother is entitled to interim spousal support in the mid to high range at $2,900 per month, as of September 1, 2019.
Conclusion
[32] For the foregoing reasons, I make the following orders:
a) the Respondent shall pay interim child support to the Applicant for the child, Issa John Bates born July 17, 2004, in the sum of $1,123 per month for the period of September 1, 2019, through December 2019;
b) the Respondent shall pay interim child support to the Applicant for the child, Issa John Bates born July 17, 2004, in the sum of $1,143 per month for the period of January 1, 2020, through December 2020;
c) Commencing January 1, 2021, the Respondent pay interim child support to the Applicant for the child, Issa John Bates born July 17, 2004, in the sum of $1,143 per month;
d) The Respondent’s motion for a variation of the Order of Justice Ricchetti, dated March 2, 2020, such that no interim spousal support is payable, is dismissed;
e) Commencing September 1, 2019, the Respondent is to pay spousal support to the Applicant, in the sum of $2,900 per month, which shall continue on the first day of each month that follows, until further court order;
f) The Respondent’s child support and spousal support obligations shall be reduced by the amount paid to date; and
g) The parties are encouraged to resolve the issue of costs themselves. If they are unable, the Mother shall serve and file her written costs submissions, not to exceed two pages, single-sided and double spaced, exclusive of Costs Outline, no later than March 11, 2022; the Father is to serve and file his responding submissions, with the same size restrictions, and his Costs Outline, no later than March 25, 2022; the Mother may file responding written submission, no more than 2 pages, on or before April 1, 2022.
Fowler Byrne J.
DATE: February 24, 2022