Court File and Parties
COURT FILE NO.: FC-20-165-01 DATE: 20220302 ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT
BETWEEN:
Isabel Da Silva, Applicant – and – Brendan James Kelly, Respondent
Counsel: Mark Greenstein and Reesa Heft, for the Applicant Harrison Notkin, for the Respondent
HEARD: February 16, 2022
Reasons for Decision
Charney J.:
[1] This matter involved two motions.
[2] The first motion was brought by the Applicant, Isabel Da Silva, for temporary spousal and child support retroactive to June 1, 2021.
[3] The second motion was brought by the Respondent, Brendan Kelly, for the following relief:
a) An Order removing the Applicant’s counsel, Reesa Heft, as counsel of record.
b) An Order that the Applicant pay the Respondent $120,000 damages (including punitive and exemplary damages) for the tort of intrusion upon seclusion.
c) An Order to prevent the Applicant from relying on any emails/documents obtained from the Respondent’s email account and requiring the Applicant to destroy all such emails.
[4] The parties have agreed that I should deal with the Respondent’s motion first.
Facts
[5] Before considering each motion separately, I will outline the facts that are relevant to both motions.
[6] The parties met in 1993 and were married on July 5, 1997. They separated on August 19, 2019. The Applicant is now 60 years of age, the Respondent is 61 years of age.
[7] Prior to their marriage the Applicant worked as a bank teller, but she has not worked outside the home since 1997. Between 1997 and 2011 the Respondent’s employment required the family to move to various locations around the world including Russia, China and Sweden. While the Respondent had a high paying job (in excess of $200,000 per year), he lost his job in May 2020, and was unemployed until he found a new job in early June 2021. The Respondent states that his income is now $140,000 per year.
[8] Together the parties have one child of the marriage, Aaron, born October 12, 2001. While Aaron is an adult, he has special needs and continues to be a “child of the marriage” as that term is defined in s. 2(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). Aaron is eligible for the Ontario Disability Support Program (ODSP) and began receiving $896 a month in ODSP benefits as of August 2021.
[9] The Applicant left the matrimonial home in November 2019 and lives with an adult son from a previous relationship. Aaron lives with the Applicant.
[10] The Respondent continued to live in the former matrimonial home until the home was sold at the end of January 2022. Each party has received $75,000 from the sale of the matrimonial home, and approximately $900,000 remains in trust pending the final resolution of the equalization and support payments.
[11] The Respondent paid no spousal or child support until February 4, 2022 (just two weeks before this motion was argued), when he began to pay $2,523 per month spousal support and $329 per month child support (total payment of $2,852), based on his annual income of $140,000. I will explain how he calculated that amount when I consider the Applicant’s motion for support.
A. Respondent’s Motion to Remove Counsel and for Tort Damages
Facts
[12] On September 5, 2021, the Respondent discovered that the Applicant had access to his emails.
[13] This discovery arose in the following manner:
[14] On September 3, 2021, the Respondent received a job offer as Vice President of Operations from a company to which he had applied for a job.
[15] On September 5, 2021, the Respondent emailed the company to advise them that he had decided not to accept the job offer.
[16] The Applicant had access to the Respondent’s email. She saw the Respondent’s September 5, 2021 email declining the job offer and forwarded the email to her lawyer. The email was forwarded within an hour after it had been sent by the Respondent. The Applicant forwarded this email directly from the Respondent’s email account.
[17] The Applicant’s lawyer received the email and responded to it the same day. She did not know that the email had been sent directly from the Respondent’s email account. She thought that she was sending her response to the Applicant. But because the email had come directly from the Respondent’s email account, the lawyer’s reply email went to the Respondent, rather than the Applicant.
[18] The lawyer’s reply email stated:
That is stupid. Ok lets start working on support. We will ask that income be imputed to him. Did he say why he didn’t take or he just declined the offer.
[19] When the Respondent received this email from the Applicant’s lawyer, he realized that the Applicant had access to his emails.
[20] But for the lawyer’s error in sending her response to the Respondent, the Respondent states that he would not have known that the Applicant had access to his email account or how the Applicant knew this information about the job offer. At no time had he given the Applicant or their son Aaron permission to access his emails.
[21] The Applicant referred to the information contained in the email in a case conference brief dated November 2, 2021. The Applicant also alleged that the Respondent had been offered a higher salary package of $210,000, although this information was not included in the email that was appended as an Exhibit to the Respondent’s affidavit. The Respondent had never disclosed this information to the Applicant.
[22] The Applicant acknowledges that she had access to the Respondent’s email. She alleges that prior to separation the Respondent used her computer and his email was available on an icon on her computer – no login was necessary. She also states that the Respondent’s email was available on Aaron’s personal computer without a login. She alleges that the Respondent knew that his email was available on her computer and he could have changed his password at any time.
[23] The Applicant also states that her lawyer did not know that the Applicant had access to the Respondent’s email. When the Applicant saw the email stating that the Respondent had declined the job offer, she acknowledges that she forwarded his email to her lawyer directly from the Respondent’s email account on her computer. She did not believe that this information was private or confidential, and believed that the Respondent had an obligation to disclose this information to her in any event.
[24] The Applicant’s lawyer has also sworn an affidavit with respect to this motion.
[25] The Applicant’s lawyer has denied any improper conduct and states that she had no knowledge that the Applicant had access to the Respondent’s email. That is why, when the offer was emailed to her, she responded to the email that she received, not knowing that it was received from the Respondent’s email account.
[26] The Respondent’s lawyer emailed the Applicant’s lawyer on November 18, 2021 to complain about the Applicant’s accessing the Respondent’s emails, and told her to “review the law surrounding intrusion upon seclusion”. He stated: “I think it is obvious how you received the email evidence that Ms. DaSilva plans on relying on”. The Applicant’s lawyer replied to the Respondent’s lawyer:
Your client left his email OPEN on my client’s computer, same as if he left a paper on the kitchen table.
Analysis – Motion for Tort Damages
[27] I will deal first with the motion for tort damages because the decision on this issue may affect the motion to have the Applicant’s counsel removed as lawyer of record.
[28] In order to claim tort damages the Respondent must either commence a tort action against the Applicant or seek leave of the court to add a tort claim to these family law proceedings.
[29] The Respondent has done neither. A claim for tort damages cannot simply be tacked on to a motion in the absence of a proper pleading made in some originating process. Accordingly, the Respondent’s claim for tort damages cannot be considered on this motion.
[30] As a general principle, proceedings in Family Court relate to matters listed in the Schedule to s. 21.8 of the Courts of Justice Act, R.S.O. 1990, c. C.43. These proceedings include the various family law statutes such as the Divorce Act and the Family Law Act (except Part V – Dependants’ Claim for Damages). The Schedule also includes family law related matters such as the interpretation and enforcement of marriage contracts and cohabitation and separation agreements, and constructive or resulting trusts in matters between two persons who have cohabited.
[31] The Schedule to s. 21.8 of the Courts of Justice Act is reproduced at Rule 1(2) of the Family Law Rules.
[32] If the matter does not fall within one of the items listed in the Schedule to s. 21.8, it may still be combined with a matter properly proceeding in Family Court with leave of the Court pursuant to s. 21.9, which provides:
Where a proceeding referred to in the Schedule to section 21.8 is commenced in the Family Court and is combined with a related matter that is in the judge’s jurisdiction but is not referred to in the Schedule, the court may, with leave of the judge, hear and determine the combined matters.
[33] The application of these provisions to a proposed tort action by one spouse against the other is summarized by R.S.J. MacLeod in G. (M.H.) v. B. (R.J.), 2021 ONSC 2467, at paras. 29 and 32:
In other words, under the family rules, joinder of tort claims with family law claims is permitted, but it requires leave of the court. It will be for the judge sitting in the Family Court or exercising jurisdiction under the Family Law Rules to give leave or not and to determine what procedural rules will apply to the portion of the case that is a tort action. In that case, it is not automatic that the civil rules will apply.
It follows that an applicant for divorce seeking to also pursue independent tort claims has two options. The applicant could graft tort claims onto the divorce action and seek leave to have them determined in the Family Court under the Family Law Rules. The applicant could instead start a separate tort action as was done here. In the former case, the applicant runs the risk that leave will not be granted. In the latter, the plaintiff runs the risk of two sets of costs if the action is unsuccessful and perhaps of being denied costs of one of the proceedings if the plaintiff is successful. In either case the court will ultimately have to grapple with joinder and how best to achieve a just result. In making that choice, the court will have to apply the principles of fairness, proportionality, and judicial efficiency.
[34] At the hearing of this motion the Respondent asked for leave to amend his Answer to include a claim for tort damages for intrusion upon seclusion. The Respondent did not, however, include this relief in his Notice of Motion. In the absence of a motion to amend it would be unfair to consider this request because the Applicant has not had an opportunity to consider her position or seek legal advice on the proposed amendment.
Analysis - Motion to Remove Counsel
[35] Following argument, I advised the parties that I was dismissing the Respondent’s motion to remove the Applicant’s counsel for written reasons to follow. These are those reasons.
[36] The Respondent argues that Ms. Heft must be removed as lawyer of record for two reasons: The first is that the Applicant’s access to the Respondent’s email may have included access to confidential solicitor/client information, and that the Court should assume that the Applicant passed this information on to Ms. Heft. The Respondent stated that he is not saying that Ms. Heft herself did anything wrong, only that the Court should assume that such emails were provided to Ms. Heft, and this disqualifies her from acting for the Applicant in this matter.
[37] The Respondent’s second argument is that he intends to amend his Answer to include a claim for damages for the tort of intrusion upon seclusion, and that if he does, Ms. Heft is likely to be called as a material witness. As a likely witness, she should not be permitted to act as counsel at the trial.
[38] “The law is clear that a litigant’s counsel of choice may not be removed lightly. The decision to disqualify is a discretionary one, to be made only in the clearest of cases”: 1914699 Ontario Ltd. v. Metrolinx, 2021 ONSC 8528, at para. 17, and cases cited therein.
[39] The Supreme Court of Canada in McDonald Estate v. Martin, [1990] 3 S.C.R. 1235, held that the court must be concerned with three competing values when faced with a motion to have a solicitor removed as counsel of record (at para. 16):
(1) the concern to maintain the high standards of the legal professional and the integrity of the justice system;
(2) the countervailing value that a litigant should not be deprived of his or her choice of counsel without good cause;
(3) the desirability of permitting reasonable mobility in the legal profession. [^1]
[40] McDonald Estate was a case in which a party’s former lawyer joined a different law firm that was engaged in litigation against the former client. The former client asked that the firm be removed as lawyers of record because they were now privy to the former client’s solicitor/client confidences by virtue of the former lawyer joining the firm.
[41] The Court found that the former lawyer had actively worked on the very case in respect of which her new firm was acting against her former client, and she was therefore in possession of relevant confidential information. There was nothing in the affidavits filed to indicate that any independently verifiable steps were taken by the firm to implement any kind of screening to prevent the misuse of information, and the firm could not, therefore, continue to act.
[42] In arriving at this conclusion, Sopinka J. stated, at para. 48:
Typically, these cases require two questions to be answered: (1) Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand? (2) Is there a risk that it will be used to the prejudice of the client?
[43] The facts in our case are quite different. The argument is that it is the Applicant herself who had access to the Respondent’s emails and, potentially, to confidential solicitor/client information. I say “potentially” because there is no evidence before me that the Respondent actually received confidential advice from his lawyer by email. There are not, for example, any redacted emails to support the allegation that any such emails were exchanged between the Respondent and his lawyer. I will return to this point again later in these reasons.
[44] Nor is there any evidence or suggestion that any position taken by the Applicant in these proceedings prior to September 5, 2021 revealed knowledge of any solicitor/client confidences. The September 5, 2021 email declining the job offer was not a solicitor/client confidence, and I agree with the Applicant that the Respondent would have had to disclose it in any event because it was directly relevant to her claim for spousal and child support.
[45] This is not to excuse the Applicant’s conduct in surreptitiously accessing the Respondent’s emails. This was not, as suggested by the Applicant’s counsel, like leaving “a paper on the kitchen table”. This was no different than if the Applicant had opened an envelope addressed to the Respondent. The fact that parties to litigation have a duty to disclose relevant documents to the opposing party does not give one party licence to open the other party’s mail, regardless of whether it is email or paper mail. The Applicant’s conduct was improper and should not have occurred. My point at this juncture is only that the specific email at issue on this motion was not a solicitor/client confidence.
[46] But assuming, for the purposes of this motion, that the Applicant was privy to the Respondent’s solicitor/client privileged emails, she will have that knowledge no matter who her lawyer is. The Applicant cannot, obviously, seek to rely on any confidential solicitor/client emails that she may have in her possession, but it will be difficult to prevent her from using the information gleaned from any such documents to her strategic advantage. Removing Ms. Heft as lawyer of record will not prevent the Applicant from utilizing any such information in the future.
[47] That said, if there is evidence that the Applicant’s lawyer was actually provided with the Respondent’s confidential solicitor/client emails, it would be appropriate to remove her as lawyer of record. In my view a “fair-minded reasonably informed member of the public would conclude that the proper administration of justice requires it”: Metrolinx at para. 18.
[48] The questions to be determined on this part of the motion are:
a) Did Ms. Heft receive the Respondent’s confidential solicitor/client information?
b) Is there a risk that it will be used to the prejudice of the Respondent?
[49] While it is certainly possible that the Applicant had access to confidential solicitor/client information, there is no evidence in this case that she in fact did have such access, or that any such information was given to Ms. Heft.
[50] As indicated, the Respondent could have provided redacted copies of emails that flowed between himself and his lawyer to demonstrate that such emails were exchanged during the period that the Applicant had access to the Respondent’s emails (from the date of separation until September 5, 2021). The Respondent also could have provided a generic explanation as to the kind of confidential information included in those emails, without revealing the information itself. Finally, he could have provided some explanation as to how that information might be used to prejudice his position: see for example A Big Mobile Sign Company Inc. v. Curbex Ltd. et al, 2016 ONSC 2053, at paras. 49-50.
[51] In the absence of such evidence from the Respondent, I am left with the Applicant’s lawyer’s evidence that when she received the email on September 5, 2021, she had no knowledge that the Applicant had any access to the Respondent’s emails. She did not know how the Applicant obtained this information, but was of the view that it was information that the Respondent had an obligation to disclose to the Applicant. This assertion is confirmed by the Applicant, who states that she did not inform Ms. Heft where or how she obtained this information.
[52] Ms. Heft was not cross-examined on her affidavit, and there is no basis in the evidence presented to me to contradict or question her evidence. Accordingly, both questions set out in para. 48 above must be answered in the negative, and this does not provide a basis to remove Ms. Heft as lawyer of record.
[53] The Respondent also asserts that Ms. Heft should be removed as counsel of record because he intends to amend his Answer to include a tort claim for intrusion on seclusion, and Ms. Heft will be a necessary and material witness in that proceeding.
[54] The principles to consider on a motion to remove a lawyer of record who may be a witness at trial were set out by Master Glustein, as he then was, in Mazinani v. Bindoo, 2013 ONSC 4744, at para. 60.
[55] The factors to be considered in such cases were summarized by the Divisional Court in Essa (Township) v. Guergis; Membery v. Hill; 15 O.R. (3d) 573, at para. 48:
-the stage of the proceedings; -the likelihood that the witness will be called; -the good faith (or otherwise) of the party making the application; -the significance of the evidence to be led; -the impact of removal counsel on the party’s right to be represented by counsel of choice; -whether the trial is by judge or jury; -the likelihood of a real conflict arising or that the evidence will be “tainted”; -who will call the witness if, for example, there is a probability that counsel will be in a position to cross-examine a favourable witness, a trial judge may rule to prevent that unfair advantage arising; -the connection or relationship between counsel, the prospective witness and the parties involved in the litigation.
[56] In the present case, this issue is resolved on the basis of the first factor: the stage of the proceedings. The Respondent has not yet brought a motion to amend his Answer to include the proposed tort claim. As indicated above, the Respondent must bring a motion under s. 29.1 of the Courts of Justice Act for leave to join the proposed tort claim to these family law proceedings. There is no certainty that he will be successful on this motion. In these circumstances the motion to remove Ms. Heft as counsel of record is premature.
[57] Accordingly, the Respondent’s motion to remove Ms. Heft as lawyer of record is dismissed, without prejudice to his right to bring the motion again if his proposed amendment to his Answer is granted at some future date.
Analysis – May the Applicant retain and/or use any documents improperly obtained?
[58] The final ground of relief sought by the Respondent is an Order to prevent the Applicant from relying on any emails/documents obtained from the Respondent’s email account and requiring the Applicant to destroy all such emails in her possession.
[59] I note that the Applicant has not sought to rely on any such documents or emails on this motion. Her motion for spousal and child support is based on the Respondent’s declared income of $140,000. She is not, on this motion, seeking to rely on the impugned email or have income imputed to the Respondent.
[60] The general rule is that it is for the judge that hears the trial to determine whether any particular evidence is admissible. As stated by Master Glustein in Anderson v. Hunking, 2010 ONSC 551, at para. 9:
In a trial, a judge hears all evidence and decides if it is inadmissible, whether as hearsay, improper opinion, or irrelevant, scandalous, or vexatious. There is no preliminary vetting by another court to determine relevance.
[61] Whether the Applicant may rely on the impugned email in some future proceeding is an issue that should, therefore, be left to the judge hearing that proceeding who will be in the best position to balance the competing interests of probative value and prejudicial effect: Wilson v. Sinclair, 2022 ONSC 820, at para. 15; Godin v. Godin, 2010 NSSC 365, at para. 21; M.F.W. aka M.F.H. v M.A.H, 2018 BCSC 2486, at paras. 3-4.
[62] That said, the Applicant’s counsel did not dispute the proposition that the Applicant must immediately destroy or delete any emails between the Respondent and the Respondent’s lawyer that may be in the Applicant’s possession. I note again that there was no evidence before me that the Applicant had such emails in her possession.
B. Applicant’s Motion for Temporary Spousal and Child Support
[63] The next motion to be considered is the Applicant’s motion for temporary spousal and child support.
Positions of the Parties
[64] The Applicant seeks spousal support and child support on the basis of the Respondent’s declared income of $140,000 and her actual income of nil. She argues that no income should be imputed to her. She asks that support be retroactive to June 1, 2021, the month in which the Respondent began his new job.
[65] Based on these figures, the Applicant claims $4,344 for spousal support (mid-way between mid and high), and $925 child support.
[66] In the absence of Aaron’s $896 monthly ODSP payment, CSG Table Amount child support for a person earning $140,000 would be $1,225 per month.
[67] The Applicant acknowledges that Aaron’s ODSP income of $896 per month must be taken into account, but argues that the Respondent should not be given full credit for this payment since she is exclusively responsible for Aaron’s support.
[68] She argues that the Respondent should get credit for only one third of the ODSP amount because she has received no child support since leaving the matrimonial home with Aaron in November 2019, and it is not fair that Aaron’s government benefit should now attorn to the Respondent’s credit. Based on this calculation the Respondent’s child support would be $925 ($1,225 – ($896/3)).
[69] In the alternative, if Aaron’s entire ODSP payment is deducted from the CSG Table Amount, and the Respondent’s child support reduced to $329 ($1,225 - $896) the Applicant argues that her spousal support should be increased to $4,724 per month, which is midway between mid and high spousal support when only $329 child support is paid.
[70] The Respondent takes the position that minimum wage should be imputed to the Applicant, which he estimates at $31,200 per year.
[71] He also argues that Aaron’s ODSP payments should be deducted from his CSG Table amount child support ($1,225 - $896 = $329), and that Aaron’s monthly income from ODSP should be included in the DivorceMate calculations as if it was child support paid by him. Based on that formula, he has calculated his spousal support at $2,523 (mid range) and his child support at $329, for a total of $2,852, which is the amount he began paying on February 4, 2022.
[72] The Respondent’s DivorceMate calculation is based on the premise that the Applicant receives the full CSG Table Amount child support of $1,225, comprised of Aaron’s ODSP amount and his proposed payment of $329. The difficulty with his calculation is that he has treated the entire $1,225 as a debit from his own income even though he proposes to pay only $329.
Analysis
[73] Section 15.1(2) of the Divorce Act authorizes a court to “make an interim order requiring a spouse to pay for the support of any or all children of the marriage, pending the determination” of child support at trial.
[74] Similarly, s. 15.2(2) of the Divorce Act authorizes a court to make an interim order requiring a spouse to make periodic payments “as the court thinks reasonable for the support of the other spouse, pending the determination” of spousal support at trial.
[75] Motions for interim support are summary in nature. The Court will generally not conduct a detailed investigation into the merits of the case: Singh v. Singh, 2013 ONSC 6476, at para. 11; Sandhu v. Dhillon, 2021 ONSC 1143, at para. 14. The full financial circumstances of the parties are not yet available, and a complete inquiry into all aspects and details of the case will have to wait until trial: Matus v. René, 2021 ONSC 1925, at para. 120. As stated by the British Columbia Court of Appeal in Tedham v. Tedham, 2003 BCCA 600, at para. 59:
An interim order is just that -- one made pending trial, with the expectation that the full financial circumstances of the parties will be forthcoming and available to the trial judge. In most cases, interim orders are made in circumstances where there has not been full financial disclosure and the parties are well aware that some adjustment may have to be made once all of the relevant financial information is available.
[76] I am also guided by the principles set out by Harvison Young J. (as she then was) in Teitler v. Dale, [2017] O.J. No. 182, at para. 23 (as reproduced by Faieta J. in Nifco v. Nifco, 2018 ONSC 2603, at para. 22):
- On applications for interim support the applicant’s needs and the respondent’s ability to pay assume greater significance;
- 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;
- 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;
- The courts should not unduly emphasize any one of the statutory considerations above others;
- On interim applications the need to achieve economic self-sufficiency is often of less significance;
- Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise;
- Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out; and
- 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.
[77] Given the length of the marriage, the age of the parties on separation, the contribution of each spouse during the marriage and their respective financial positions, there is no dispute about the Applicant’s entitlement to spousal support.
[78] As can be seen from the positions of the parties, there are two primary areas of dispute on this motion. The first is whether any income should be imputed to the Applicant, the second is how Aaron’s ODSP income should be included in the support calculations. I will deal with each question in turn.
Imputation of Income to the Applicant
[79] The Applicant argues that no income should be imputed to her. She left the labour force in 1997 when the Respondent’s employment required the family to move to several other countries around the world. She was not able to work in those other countries and stayed at home raising Aaron. Her previous employment skills as a bank teller are now obsolete, and she has developed no marketable skills since 1997. As a woman of 60 years of age, it is neither realistic nor reasonable that she be required to re-enter the labour force for the first time in nearly 25 years.
[80] The Respondent argues that there is no reason why the Applicant cannot at least find a minimum wage job, regardless of her skills and present age. The parties have been separated for over two and a half years, and she should be able to achieve some economic self sufficiency. Aaron is now 21 years of age, and although his disability means that he remains a “child of the marriage”, his disability is not such that the Applicant must remain home to care for him. The Applicant has provided no evidence that she has made any effort to update her skills or seek employment of any kind.
[81] The principles that apply in determining whether to impute income are the same in both child support and spousal support cases: Crowe v. McIntyre, 2014 ONSC 7106, at para. 27. The issue for the purposes of this case is whether the Applicant is intentionally unemployed. In making this assessment, the court must consider her capacity to earn income in light of her age, education, health, work history and the availability of work that is within the scope of her capabilities. Finding deliberate underemployment or unemployment does not require evidence of bad faith. A person is intentionally unemployed when they choose not to work when capable of earning an income: Drygala v. Pauli; Crowe at para. 31.
[82] In this case the Applicant has provided no evidence that she has made any effort to find even part-time employment. While her lack of current experience would likely prevent her from returning to employment at a bank, there is no evidence that she could not find some employment at, for example, a retail establishment. There is no evidence that the Applicant’s health prevents her from obtaining employment, and there is no evidence that Aaron’s special needs are such that she is required to stay at home to give him constant care.
[83] Considering the factors of her age, experience and skills, I am of the view that the Applicant should have made some effort to obtain at least part-time, minimum wage employment in the past year. In these circumstances I find that the correct imputation of income for the purposes of an interim support order is $14,500. [^2]
Calculation of Interim Child Support
[84] While the parties agree that Aaron has special needs, they do not agree on the nature of those needs or his diagnosis. Notwithstanding this disagreement, the parties agree that, at least for now, he continues to be a child of the marriage pursuant to s. 2(1) of the Divorce Act, which defines “child of the marriage” as:
“child of the marriage” means a child of two spouses or former spouses who, at the material time,
(a) is under the age of majority and who has not withdrawn from their charge, or
(b) is the age of majority or over and under their charge but unable, by reason of illness, disability, or other cause, to withdraw from their charge or to obtain the necessaries of life.
[85] As indicated, Aaron qualifies for the Ontario Disability Support Program (ODSP) and began receiving $896 a month in ODSP benefits as of August 2021. Most of this amount ($825) is intended for “Board and Lodge”. Aaron is not currently attending school.
[86] “The fact that an adult child suffering from an illness or disability receives money through disability benefits, other forms of government assistance or from family members may be relevant to whether they are unable to withdraw from parental charge, but it is not determinative”: Weber v. Weber, 2020 ONSC 4098, at para. 67.
[87] For the purposes of this motion for interim support I am prepared to accept that since Aaron’s disability is sufficiently serious to qualify for ODSP and he continues to live with the Applicant, he therefore continues to qualify as a child over the age of majority who is “unable, by reason of …disability… to withdraw from their charge or to obtain the necessaries of life”.
[88] The fact that Aaron receives income from the ODSP does not disqualify him from also receiving child support. The real question is the appropriate quantum of support. As Chappel J. stated in Weber, at paras. 58 and 68:
In assessing whether an adult child is “unable to obtain the necessaries of life” within the definition of “child of the marriage,” the question is not whether their sources of income and other financial assistance support a sustenance existence, but rather whether they are sufficient to support the child’s reasonable needs having regard for the condition, means, needs and other circumstances of the child, and the financial ability of each parent to contribute to the child’s support. [citations omitted]
On the issue of whether a disabled or ill child is unable to withdraw from parental charge, the court should consider the child’s potential employability and their capacity to supplement their income within the boundaries permitted by any income support programs from which they receive financial benefits, such as ODSP. The fact that an individual is in receipt of such benefits is not in and of itself proof that they cannot earn additional income.
[89] The ability of an adult child to contribute to their own support is a factor to be considered in determining the appropriate quantum of child support to be paid to an adult child. Section 3(2) of the Federal Child Support Guidelines, SOR/97-175 (CSG), provides:
3(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is
(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or
(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.
[90] Section 3(2)(b) requires the Court to consider whether a child of majority age is able to make a contribution to his or her support. The section requires the court to consider the child’s means in the context of the financial ability of each of the parents to contribute to the support of the child: Lewi v. Lewi (2006), 80 O.R. (3d) 321 (C.A.), at paras. 141 and 142.
[91] In Senos v. Karcz, 2014 ONCA 459, the Ontario Court of Appeal ruled that s. 3(2)(a) of the CSG was inappropriate where the child receives his or her own ODSP. The Court held, at paras. 58-59:
In my respectful view, it was an error in principle to apply the table approach. Antoni’s annual receipt of almost $10,000 in the form of ODSP income support was, in itself, sufficient to displace the “one-size-fits-most” approach in s. 3(2)(a) of the Guidelines in favour of the “tailor made” approach in s. 3(2)(b). That approach would have regard to Antoni’s “condition, means, needs and other circumstances”. That approach is particularly appropriate in light of Antoni's disability and society's commitment to share in his care.
Antoni's eligibility for ODSP is based on a determination that his budgetary requirements exceed his income. Since he receives a payment in respect of board and lodging, it is reasonable to conclude that he established a budgetary requirement for this expense. As his mother and her spouse provide that board and lodging, it is also reasonable to conclude that some portion of the ODSP he receives is to enable him to make a contribution to the cost of his board and lodging.
[92] The Court further stated at paras. 64 and 67:
ODSP reflects society’s commitment to sharing financial responsibility for adults with disabilities. It makes little sense to calculate child support on the basis that this responsibility falls only on the parents. In my view, the assumption of some responsibility by the state and Antoni's receipt of income support for his board and lodging make the table approach inappropriate. These circumstances change the equation and call for a bespoke calculation based on Antoni’s unique condition, means, needs and other circumstances, including his receipt of ODSP, and the ability of his parents to contribute to his support.
The table amount is predicated on the parents alone sharing responsibility for the financial support of their child. In the case of adult children with disabilities, the ODSPA commits society to sharing some responsibility for support. In my view, this makes the s. 3(2)(a) approach inappropriate, and s. 3(2)(b) should be applied to achieve an equitable balancing of responsibility between Antoni, his parents and society.
[93] The Court of Appeal in Senos recognized, at paras. 72-73, that this is not necessarily a dollar for dollar set-off. That said, for the purposes of an interim order, a dollar for dollar set-off is a reasonable solution until a complete inquiry into all details of the case are determined at trial.
[94] Accordingly, I conclude that the Respondent’s interim child support should be $329 per month, commencing March 1, 2022.
Calculation of Interim Spousal Support
[95] Aaron’s ODSP payments are Aaron’s income, not the Applicant’s income. Although Aaron’s income should be deducted from the Respondent’s child support payment, it should not be imputed as income to the Applicant. While the income of an adult child is a factor to be taken into account in determining child support obligations, it is not a factor to be taken into account when calculating spousal support.
[96] Thus, the Applicant’s spousal support should be calculated on the basis of an imputed income of $14,500 and on the basis that the Respondent is paying $329 for child support. The mid-range SSAG based on these calculations is $3,803, and the high end is $4,346.
[97] In assessing interim spousal support, I note that this was a marriage of long duration in which the Applicant gave up her career so that the Respondent could pursue his career opportunities around the world. The Applicant has been out of the workforce for many years, and, at this stage of her life, will find it difficult to become self-sufficient. The Respondent is now 61 years of age, and he is likely to retire within the next several years, limiting the duration of spousal support at this level. The Applicant’s claim for spousal support is both needs based and compensatory.
[98] Given these factors, I accept the Applicant’s position that spousal support should be between the mid range and high range in these circumstances, and I fix it at $4,000 per month, commencing March 1, 2022.
Retroactive Support
[99] The Applicant claims retroactive support to June 1, 2021, the month that the Respondent began working for his new employer.
[100] The Respondent argues that retroactive support should not be provided. He alleges that he was spending money to maintain the matrimonial home (where he was living) and that this maintenance would have to be deducted from any support payments. As such, the issue of retroactive support should await the trial when the cost of maintenance can be adjusted against the Applicant’s claim for retroactive support and occupation rent.
[101] The Applicant argues that many of these alleged maintenance payments were personal expenses solely for the benefit of the Respondent.
[102] Disputes about the legitimacy of various invoices should not be resolved on a motion for interim support.
[103] Motions for interim support typically deal only with prospective orders: Mohamed v. Mohamed, 2020 ONSC 6567, at para. 8. The issue of retroactive spousal support is often best left to trial once a full record can be developed: McGuire v. Jean, 2011 ONSC 5236, at para. 15; Abdur-Rashid v. Abdur-Rashid, 2021 ONSC 1117, at para. 49.
[104] In the present case, however, I am satisfied that the equities demand that the support order be made retroactive to July 1, 2021 (the month when the Respondent received his first full month’s income) given that there is no real dispute about the Applicant’s entitlement. Any maintenance payments allegedly made by the Respondent can be deducted from the funds held in trust for the sale of the matrimonial home or set off against any occupation rent he may be found to owe. There is sufficient money held in trust from the sale of the matrimonial home to cover any unresolved disputes that go to trial without having to deny the Applicant the support she is owed.
[105] Accordingly, spousal support is fixed at $4,000 per month commencing July 1, 2021, and child support is fixed at $329 per month commencing July 1, 2021. The total retroactive support owed as of March 1, 2022, is $31,780 ($4,329 x 8 months - $2,852 paid in February 2022).
[106] If the Respondent is unable to pay the retroactive amount within 30 days of the release of this decision, that amount may be deducted by the Applicant from the Respondent’s share of the proceeds of the matrimonial home that are currently held in trust.
Section 7 Expenses
[107] In addition, the ODSP benefits should not be included for the purposes of s. 7 expenses, as this would amount to double counting. Aaron cannot be expected to contribute $896 to his “Board and Lodge”, and use the same money, for example, to pay for tuition should he decide to pursue post-secondary education.
[108] Accordingly, s. 7 expenses shall be paid 60% by the Respondent and 40% by the Applicant.
Order
[109] This Court Orders:
a. The Respondent’s motion to remove the Applicant’s lawyer as lawyer of record in these proceedings is dismissed, without prejudice to his right to bring the motion again if his proposed amendment to his Answer is granted at some future date.
b. The Applicant must immediately destroy or delete any emails between the Respondent and the Respondent’s lawyer that may be in the Applicant’s possession.
c. The Applicant is granted leave to amend her pleadings to include a claim for occupation rent within 30 days.
d. The Respondent is granted leave to amend his pleadings to respond to the Applicant’s amendment within a further 30 days.
e. The Respondent, Brendan James Kelly, shall pay interim monthly spousal support to the Applicant, Isabel Da Silva, commencing March 1, 2022, in the amount of $4,000 without prejudice to either party to seek an adjustment.
f. The Respondent shall pay interim monthly child support for the child of the marriage, namely Aaron James Kelly, born October 12, 2001, in the amount of $329, without prejudice to either party to seek an adjustment.
g. The Respondent shall pay retroactive spousal and child support from July 1, 2021 to February 1, 2022, as per the amounts set out in paras. e. and f. above, for the total retroactive amount of $31,780.
h. If the Respondent is unable to pay the retroactive amount within 30 days of the release of this decision, that amount may be deducted by the Applicant from the Respondent’s share of the proceeds from the sale of the matrimonial home that are currently held in trust.
i. Section 7 expenses shall be paid 60% by the Respondent and 40% by the Applicant.
j. The Respondent shall maintain the Applicant and Aaron James Kelly as beneficiaries under any employment or other health care plan so long as this is permitted by the plan.
[110] If the parties cannot agree on costs, the Applicant may serve and file costs submissions of no more than 3 pages plus costs outline and any offers to settle within 20 days of the release of this decision, and the Respondent may file responding submissions on the same terms within a further 10 days.
Justice R.E. Charney Released: March 2, 2022
[^1]: This third factor was an important consideration in the McDonald Estate case, which involved a lawyer moving to a different firm. It is not a relevant consideration in this case. [^2]: A person earing minimum wage in Ontario will earn a gross annual salary of $29,250 at a rate of $15.00 per hour assuming a 7.5 hour workday, five days per week with paid vacation.