COURT FILE NO.: FC-21-00000093-0000
DATE: June 10, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NYJILL WILSON
Applicant
– and –
BEVERLY WILSON
Respondent
Teresa DuBois, for the Applicant
Gonen Snir, for the Respondent
ENDORsement
ABRAMS, J
Introduction
[1] The applicant brings this motion for temporary spousal support.
Brief Background
[2] The parties were married on August 30, 1987.
[3] The parties separated on July 21, 2019.
[4] This is a 32-year marriage.
[5] There are two children of the marriage who are independent adults.
[6] During the marriage, the respondent retrained and acquired her certification as a registered nurse. She currently works at the Ottawa Hospital.
[7] Until recently, the applicant worked as a bus driver at OC Transport. Earlier in the marriage he was employed as a truck driver. He contends he can no longer work full-time hours as a result of a physical disability.
[8] The respondent continues to reside in the matrimonial home, which is valued at approximately $800,000.00.
[9] The applicant resides out of the home with a friend, with whom he has developed a relationship. He pays rent of approximately $600.00 per month.
[10] At this juncture, the applicant’s claim for support is based on the differential in earning ability between the parties, his need and her ability to pay, all within the context of this long-term marriage.
Issues
[11] The issues for the court to decide on this motion are:
Whether the applicant has established a prima facie case for entitlement to support; and
What quantum of interim support, if any, is warranted as a holding order for purposes of maintaining the applicant’s accustomed lifestyle pending trial?
Parties Positions
[12] The applicant asserts he has established a prima facie entitlement to support and that the quantum should be set at a minimum of $1,300.00 per month to offset the monthly income shortfall set out in his sworn Financial Statement.
[13] The respondent argues there is no prima facie entitlement to support. Rather, she contends the applicant can work full-time and support himself. Further, when he is working full-time, the applicant’s income is similar to hers.
Law
[14] An order for interim support is in the nature of a holding order for the purposes of maintaining the accustomed lifestyle pending trial: Jarzebinski v. Jarzebinski, 2004 CarswellOnt 4600 (Ont. S.C.J.) at para. 36, and Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689, 2012 CarswellOnt 14841 (Ont. S.C.J.) at para 24; Knowles v. Lindstrom, 2015 CarswellOnt 3039 (Ont. S.C.J.).
[15] It must be kept in mind that an interim support award is a temporary order only and inevitably imperfect: Cardoso v. Cardoso, 2013 ONSC 5092 . It is meant to provide “a reasonably acceptable solution to a difficult problem until trial”: Chaitas v. Christopoulos, 2004 66352 (ON SC), [2004] O.J. No. 907 (S.C.J.) per Sachs J.
[16] Robles v. Kuhn, 2009 BCSC 1163, stands for the following principles:
In interim support, needs and ability take on greater significance.
On interim applications the need to achieve self-sufficiency is of less importance.
Interim support should be ordered within the SSAG range unless exceptional circumstances dictate otherwise: Ladd 2006 BCSC 1280, [2006] BCJ No. 1930
Interim support should only be ordered where a prima facie case for entitlement has been set out: Buchanan v. Goldberg, 2010 ONSC 268.
[17] If a claimant establishes a prima facie case for spousal support entitlement, then, generally a support order will be made, based on the parties’ respective needs and means: Plaxton v. Plaxton 2002 49545 (ON S.C.), (2002), 27 R.F.L. (5th) 135.
[18] In assessing the appropriateness of an interim spousal support award, consideration should be given to the payment by one party of joint debts. Where the payor makes such payments, these will reduce the Respondent’s means and also the Applicant’s needs: see Joyce v. Joyce 2015 ONSC 4311.
Analysis
[19] The applicant’s motion is granted, for the following reasons.
[20] This is a long terms marriage of 32 years.
[21] While the parties’ incomes were relatively equal at the date of separation, following separation, the applicant has gradually fallen behind the respondent in terms of his ability to work full-time hours, earn income and support himself at the accustomed lifestyle he enjoyed pre-separation.
[22] I find that the differential in the parties’ incomes is due to the applicant’s failing health, as set out in the affidavit and appended correspondence of his family physician, sworn April 22, 2022. The family doctor advises:
The working diagnosis thus far which requires modified duties/schedule is musculoskeletal chest wall pain. He is working with a cardiologist to confirm that this is not cardiac pain. However, since October 6 [2021], Mr. Wilson has developed acute on chronic right hip pain which is also likely musculoskeletal with a component of query mild osteoarthritis.
[23] The respondent argues that the family physician’s view is of no value because it is based solely on the applicant’s subjective reports and not on any objective findings. That may eventually be established at trial following cross-examination of the applicant and perhaps the family doctor. However, at this juncture, the evidence supporting disability is uncontroverted and raises at least a prima facie case that the applicant is in need of support. Further, the applicant has been assessed for purposes of short-term disability by his employer and is being paid a percentage of his wage as a result. He is, therefore, in need of support.
[24] The respondent has a corresponding means or ability to pay. For the tax year 2020, she earned gross annual income of $129,657.00. In 2021, she earned $120,558.00. The respondent argues; however, that her income over the past two tax years does not accurately reflect what it will be going forward. She asserts that her income has been inflated over the past two years due to the Covid-19 pandemic and the excessive number of hours she has been required to work. I accept that submission.
[25] For purposes of this motion, I find that the respondent’s income is $115,000.00, being comprised of $109,650.00 of employment income and $5,613.00 of CPP income.
[26] I find the applicant’s income is $56,349.00, being comprised of $50,736.00 of short-term disability income and $5,613.00 of CPP income.
[27] Based on these figures, the SSAG calculations filed show a low of $1,841.00, mid of $2,148.00, and high of $2,256.00. In her Financial Statement, the respondent shows a debt repayment figure of $1,100.00, which she attributes to joint family debt that she has been saddled with. This figure may or may not be established at trial. In any event, for purposes of this motion, the debt repayment of $1,100.00 per month is uncontroverted. To recall, where the payor makes such payments, these will reduce the Respondent’s means and also the Applicant’s needs: Joyce, supra.
Conclusions
[28] The applicant has established a prima facie entitlement to support. He is, therefore, in need of support.
[29] The respondent has the means or ability to pay, which is reduced somewhat by her servicing joint family debt.
[30] In the result, on a temporary, without prejudice basis, the respondent shall pay to the applicant for his support $1,000.00 per month effective June 1, 2022, and on the first day of each month thereafter pending further order of this Court. This figure may be adjusted retroactively based on further and better evidence at trial.
[31] The issue of retroactive support remains a live issue.
[32] Given the parties agreement on the figure for costs of the motion, the respondent shall pay to the applicant costs fixed in the sum of $2,500.00 inclusive of disbursements and HST, marked payable forthwith.
The Honourable Mr. Justice B. W. Abrams
Released: June 10, 2022
COURT FILE NO.: FC-21-00000093-0000
DATE: June 10, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
NYJILL WILSON
Applicant
– and –
BEVERLY WILSON
Respondent
ENDORsement
Abrams, J.
Released: June 10, 2022