COURT FILE NO.: FS-21-00026355

DATE: 20220912

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Gerarda Margaret MacDonald

Applicant

– and –

Joseph Roger LeBlanc

Respondent

Michael G. Cochrane and Ruth Kalnitsky Roth, for the Applicant

Michael J. Ruhl, for the Respondent

HEARD: September 6, 2022

J. Steele J.

[1] This is a motion by the applicant, Gerarda Margaret MacDonald, for an advance on interim legal fees and disbursements and for interim spousal support.

Background

[2] Ms. MacDonald and the respondent, Joseph Roger LeBlanc, lived together for either 2.5 years or almost 4 years, depending on when co-habitation commenced.

[3] The parties separated in June 2021.

[4] Ms. MacDonald is 62 years old and is currently on sick leave from her employment. She was last employed full-time on or about April 9, 2021 before she went on disability leave. She receives disability benefits of approximately $38,000 per year. She also earns rental income from a property in PEI, which she anticipates will be approximately $55,000 for 2022 (gross rental income).

[5] Mr. LeBlanc is 77 years old. He owns a business in Guelph, Ontario, known as Counteract Balancing Beads Inc. For the taxation year ended 2020 his income was in excess of $700,000.

Analysis

Interim Legal fees and Disbursements

[6] Ms. MacDonald seeks an order for an advance on interim legal fees and disbursements in the amount of $30,000.

[7] Rule 24(18) of the Family Law Rules (the “FLRs”) provides that a court may make an order for a party to pay an amount of money to cover part or all of the other party’s expenses of carrying on the case, including lawyer’s fees.

[8] In Stuart v. Stuart, 2011 28261 (ON SC) the court summarized factors set out in the case law regarding a claim for interim disbursements, as follows, at para. 8:

a. The ordering of interim disbursements is discretionary.

b. A claimant must demonstrate that absent the advance of funds for interim disbursements, the claimant cannot present or analyze settlement offers or pursue entitlement.

c. It must be shown that the particular expenses are necessary.

d. Is the claim being advanced meritorious?

e. The exercise of discretion should be limited to exceptional cases.

f. Interim costs in matrimonial cases may be granted to level the playing field.

g. Monies might be advanced against an equalization payment.

[9] The applicant’s evidence is that without an order for interim fees and disbursements, she will be unable to advance her claim.

[10] The applicant’s evidence is that she does not have enough money to support herself, let alone pay legal fees. In contrast, the respondent lives in a 10,000 square foot home, owns multiple properties and lives an extremely comfortable lifestyle. The applicant seeks an award for interim legal fees and disbursements to level the playing field between the parties.

[11] The applicant’s claims include a claim against Mr. LeBlanc’s properties based on constructive trust and unjust enrichment. Mr. LeBlanc’s position is that Ms. MacDonald has not made out a prima facie case with respect to property. With regard to Ms. MacDonald’s claim for spousal support, Mr. LeBlanc’s position is that due to the short nature of their relationship, spousal support, if any, will be for a short duration.

[12] Ms. MacDonald has established a prima facie case for spousal support, as discussed below. This claim is meritorious. As the parties were not married there is no equalization payment in respect of which monies may be advanced. Ms. MacDonald has made a claim for constructive trust and unjust enrichment. She states that they purchased a condo unit in Collingwood together, which closed in April 2022. Her evidence is that she made the initial $30,000 installment on the Collingwood property. However, the initial cheque she made to the developer did not clear and she signed a release of her interest in the Collingwood property in 2020. Ms. MacDonald also claims that she was responsible for undertaking extensive renovations and improvements to Mr. LeBlanc’s residence and cottage properties. Mr. LeBlanc’s evidence is that Ms. MacDonald did not contribute anything to his properties that would entitle her to an interest of any kind. The affidavit evidence is conflicting. On the record before me, I am not satisfied that Ms. MacDonald has met her onus of establishing that she has a prima facie case for her constructive trust/unjust enrichment claim based on the parties having been in a joint family venture.

[13] It concerns me that Ms. MacDonald would be unable to pursue even her spousal support claim without an order for interim legal fees and disbursements. There is a significant disparity between the parties’ incomes in this case. In my view, it is appropriate to order Mr. LeBlanc to pay money to Ms. MacDonald to cover part of her expenses in carrying on the case. This will help to level the playing field. In the circumstances, Mr. LeBlanc shall pay Ms. MacDonald $20,000 forthwith. This advance may be taken into account by the trial judge in any retroactive or ongoing spousal support order or other award.

Interim Spousal support

[14] Under the Family Law Act (the “FLA”) every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so: Section 30, FLA. For purposes of support, “spouse” is defined to include either of two persons who are not married to each other and have cohabited continuously for a period of not less than three years: Section 29, FLA.

[15] One of the issues in this matter is whether Ms. MacDonald was a “spouse” under the FLA. The parties have different narratives of when they started to co-habit. Ms. MacDonald’s evidence is that they started to co-habit in Mr. LeBlanc’s home before she sold her house. Ms. MacDonald takes the position that they co-habited for almost four years. Mr. LeBlanc’s evidence is that they started to co-habit in November 2018 when Ms. MacDonald sold her house. He takes the position that they co-habited for 2.5 years. There is evidence of a text message from Mr. LeBlanc where he refers to the length of the cohabitation as being four years, consistent with Ms. MacDonald’s evidence. In my view, she has met her onus and established a prima facie case that she was a “spouse” under the FLA. Whether or not their cohabitation was for a period of at least 3 years, such that they were “spouses” under the FLA will be a question of fact for the trial judge on a complete record.

[16] The court may make an interim order for spousal support: Sections 33 and 34, FLA. Section 33(8) of the FLA sets out the following purposes of an order for spousal support:

a. Recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;

b. Share the economic burden of child support equitably;

c. Make fair provision to assist the spouse to become able to contribute to his or her own support; and

d. Relive financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).

[17] The case law recognizes that entitlement to spousal support may arise on the following grounds: (1) compensatory, (2) contractual, and (3) non-compensatory: Bracklow v. Bracklow, [1991] 1 S.C.R. 420 (S.C.C.) at para. 15. The applicant claims she is entitled to support on a non-compensatory or needs basis.

[18] The starting point is the objectives referred to in the Divorce Act for support orders, including: recognizing economic advantage or disadvantage arising from the marriage or its breakdown, relief of economic hardship arising from the marriage breakdown, and promotion of the economic self-sufficiency of the parties. Generally, the court must consider the “condition, means, needs and other circumstances of each spouse”. This may include the length of cohabitation, the functions each spouse performed and any agreement or arrangement relating to support. The court must weigh all the factors, in the light of the support objectives, and exercise discretion in a manner that “equitably alleviates the adverse consequences of the marriage breakdown”: Bracklow, at paras 35-36.

[19] The applicant’s evidence is that she was entirely financially dependent on the respondent from the time she went on leave from work. She states that even before then, she was dependent on him for the lifestyle the parties’ enjoyed together. Ms. MacDonald states that she had planned her life under the supposition that the parties were going to spend the rest of their lives together. Prior to their co-habitation Ms. MacDonald owned her own home. Her evidence is that she sold the home in reliance on Mr. LeBlanc’s statement that he would care for her, physically and financially, during her illness and following her rehabilitation.

[20] The applicant states that since the parties’ separated and the respondent stopped supporting her, she has amassed considerable debt. Her evidence is that she does not have enough money each month to support herself, let alone pay legal fees. The applicant has also had health issues, including a cancer diagnosis that is now in recission and related stress leave from work.

[21] Mr. LeBlanc argues that Ms. MacDonald was gainfully employed for most of the time they were together. He argues that Ms. MacDonald remains capable of supporting herself.

[22] Based on the evidence and the submissions of the parties, I am satisfied that the applicant has made out a prima facie case for entitlement to spousal support on a needs basis.

[23] As I have determined that Ms. MacDonald is entitled to spousal support, I next consider the quantum of interim spousal support.

[24] Section 33(9) of the FLA provides that the court must consider all of the circumstances of the parties in determining the quantum of spousal support, including:

a. The dependant’s and respondent’s current assets and means;

b. The assets and means that the dependant and respondent are likely to have in the future;

c. The dependant’s capacity to contribute to his or her own support;

d. The respondent’s capacity to provide support;

e. The dependant’s and respondent’s age and physical and mental health

f. The dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;

g. A contribution by the dependant to the realization of the respondent’s career potential;

h. The length of time the dependant and the respondent cohabited; and

i. Any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support.

[25] The applicant seeks interim spousal support in the amount of $5,000 per month, plus spousal support retroactive to the date of separation payable in a lump sum of $70,000.

[26] The Court of Appeal has recognized the Spousal Support Advisory Guidelines (“SSAGs”) to be a reliable tool in determining quantum of spousal support in many cases, with the caveat that it is subject to the parties’ individual circumstances: Fisher v. Fisher, 2008 ONCA 11 at para. 101.

[27] The respondent’s position is that any interim spousal support should be limited to the low range having regard to the nature of the relationship. He argues that it should be time-limited having regard to the short duration of their relationship. Alternatively, he argues that any spousal support order be subject to review in six months.

[28] The respondent referred the court to Halliwell v. Halliwell, 2017 ONCA 349 for the approach to calculating support where a payor spouse’s income exceeds $350,000. In Halliwell, the Court of Appeal determined that the appropriate approach was to use the income up to $350,000 and then use half the difference thereafter. In that case, the court applied this formula after accounting for the effects of the equalization payment on entitlement and the necessary attribution of investment income to the respondent. Halliwell was a final determination, as opposed to interim.

[29] The respondent provided various calculations under the SSAGs with varying inputs for Mr. LeBlanc’s income, years of cohabitation and application of the Halliwell approach. Mr. LeBlanc states that his income for support purposes is not $700,000, as the vast majority of his income is derived from eligible dividends. Due to the tax implications of his dividend income, Mr. LeBlanc’s income for the SSAGs is $524,111. The low to high ranges of the spousal support calculations provided by Mr. LeBlanc are between $1,115 and $2,378 a month. By contrast, the spousal support calculations provided by Ms. Macdonald with Mr. LeBlanc’s income at $725,469 provide a range of $4,331 to $5,775 a month. However, those calculations were made using a higher income for Mr. LeBlanc, not taking into account the Halliwell approach, and using a lower income for Ms. MacDonald. Based on the SSAGs calculation, the high end of the spousal support range is $2,900 a month using an income for Mr. LeBlanc of $524,111, an income for Ms. MacDonald of $75,404 (assuming net $20,000 on the PEI property) and a 4-year cohabitation period.

[30] At an interim motion stage there is an element of “rough justice”. As the motions judge, I do not have the benefit of a full record with viva voce evidence that has been tested on cross examination. At the interim stage, the factors that are to receive the greatest weight are the parties’ respective means and needs, while other factors and objectives should be considered so long as they are practicable: Turk v. Turk, 2008 3420 (ONSC), at para. 60. I note that under section 12.7 of the SSAGs in certain cases where there are shorter marriages and compelling financial circumstances at the interim stage, this may justify a higher amount of support for a transitional period.

[31] Based on the record before me, including the fact that the parties cohabited for a relatively short period of time, Ms. MacDonald’s age and her current financial and health situation and Mr. LeBlanc’s ability to pay support, I have determined that Mr. LeBlanc shall pay Ms. MacDonald interim spousal support of $3,900 per month.

[32] I have determined that no retroactive spousal support shall be payable at this time, as there are live issues which may significantly impact the duration and quantum of spousal support, including the length of the parties’ cohabitation. The issue of retroactive spousal support should be determined at trial.

Disposition and Costs

[33] In the result therefore, I make the following orders:

a. Mr. LeBlanc shall pay Ms. MacDonald $20,000 forthwith as an advance on interim legal fees and disbursements. This advance may be taken into account by the trial judge in any retroactive or ongoing spousal support order or other award.

b. Effective September 1, 2022, and on the first day of each following month, Mr. LeBlanc shall pay Ms. MacDonald interim spousal support of $3,900 per month.

c. Unless the support order is withdrawn from the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the Order shall be paid to the Director, who shall pay them to the person to whom they are owed. A support deduction order will be issued.

[34] I encourage the parties to come to an agreement on costs. If they are unable to do so by September 30, 2022, they shall notify my judicial assistant and I will establish a schedule for cost submissions.

J. Steele J.

Released: September 12, 2022

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Gerarda Margaret MacDonald

Applicant

– and –

Joseph Roger LeBlanc

Respondent

REASONS FOR JUDGMENT

J. Steele J.

Released: September 12, 2022