CITATION: Benard v. Benard, 2022 ONSC 6220

COURT FILE NO.: FS-22-43

DATE: 2022/11/02

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Diane Benard Applicant

– and –

Marc Benard Respondent

COUNSEL: Paul Trenker, for the Applicant

Peter Doucet, for the Respondent

HEARD: October 28, 2022

REASONS FOR DECISION

Ellies R.S.J.

OVERVIEW

[1] The applicant moves for a temporary order for spousal support following the breakup of her 30-year marriage to the respondent.

[2] The respondent earns more than twice the amount earned yearly by the applicant. Yet, he resists the motion. He argues that the applicant cannot show that her earning capacity suffered because she stayed home to raise their children, that she did not agree to sell the matrimonial home soon enough after the breakup to save him from having to pay on their joint debts, that she failed to pay him occupation rent while she lived in the home and paid all of the expenses, that she failed to tell him that she had a tenant helping her pay those expenses, and that she is capable of earning another $5,000 per year if she just works harder.

[3] For the reasons that follow, the motion is allowed. The respondent is ordered to pay the applicant the sum of $2,568 monthly, commencing on November 1, 2022.

BACKGROUND

[4] The parties were married in September 1992 and separated in September 2021. The respondent deposes that they began living together about two years before they were married. The ages of their children bear this out and it is not contested by the applicant. Thus, the parties were together for more than 30 years. The applicant is now 56 years old and the respondent is now 57.

[5] There is no dispute that theirs was what was once called a “traditional” marriage in which the wife stayed home to care for the children while the husband went out to work. The children are adults now; one is 31 and the other is 29.

[6] The respondent accuses the applicant of having a “checkered” work history. However, the applicant is now employed at the North Bay Regional Health Centre cleaning and sterilizing surgical equipment. In 2021, she earned $43,465. The respondent works as a driller operator for a gold mining company. In 2021, he earned $110,401.

[7] Following the separation, the applicant remained in the matrimonial home. She bore all of the costs associated with the home, including the mortgage, taxes, insurance, and utilities. The respondent voluntarily paid the applicant spousal support in the amount of $750 bi-weekly. However, he stopped paying the support in April 2022 when he learned that the applicant had taken in a tenant who was paying her $700 per month in rent. The applicant deposes that the tenant moved out in September 2022 and that she is no longer receiving the rent. Although she resisted the respondent’s suggestion to sell the home while the tenant was living there, the applicant has now agreed to list it for sale.

[8] In addition to paying the $750 bi-weekly for support, the respondent has been paying $273.30 bi-weekly for a debt registered against the home in favour of “Fairstone” and $121.00 bi-weekly for a Yamaha Grizzly ATV. On a monthly basis, the respondent was paying the sum of $1,625 for support and $854.32 for joint debts until he stopped paying the support in April.

ISSUES

[9] The motion raises two main issues:

(1) Has the applicant established entitlement to a temporary order for spousal support?

(2) If so, what amount of spousal support should be awarded?

ANALYSIS

Has the applicant established entitlement to a temporary order for spousal support?

[10] Notwithstanding the fact that she remained home to raise the children, the respondent submits that the applicant cannot establish that she has suffered any economic disadvantage resulting from the marriage and that she cannot, therefore, establish entitlement to spousal support on the compensatory basis recognized by the Supreme Court of Canada in Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813. He deposes that the applicant was encouraged to work outside of the home throughout the final 18 to 20 years of the parties’ marriage and failed to do so.

[11] However, the compensatory model is not the only basis upon which courts award support. As the Supreme Court recognized in Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, spousal support may also be awarded on a non-compensatory basis. This model recognizes the obligation spouses have to support one another and the interdependence that develops between them, especially over the course of a long marriage like the one in this case.

[12] Both the compensatory and the non-compensatory models are reflected in s. 33 of the Family Law Act, R.S.O. 1990, c. F.3. Section 33(8) sets out the purposes of a spousal support order:

(8) An order for the support of a spouse should,

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

[13] To obtain a temporary order for spousal support, a moving party need only establish a prima facie case of entitlement on any of the grounds set out in the Act: Samis (Guardian of) v. Samis, 2011 ONCJ 273, at para. 44. The applicant has done that here. I am satisfied that she is entitled to a temporary order of support based on the economic consequences to her of the relationship and its breakdown under s. 33(8)(a) of the Family Law Act.

If so, what amount of spousal support should be awarded?

[14] Section 33(9) of the Family Law Act sets out the factors the court must consider in determining the amount of a spousal support order. The relevant portions of the section provide as follows:

(9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, 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) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;

(j) a contribution by the dependant to the realization of the respondent’s career potential;

(l) if the dependant is a spouse,

(i) the length of time the dependant and respondent cohabited,

(ii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,

(v) 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,

(vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child;

[15] The respondent focuses on the fact that he was unable to list the matrimonial home for sale earlier because the applicant would not agree to do so, as a result of which they must now list the home for sale in a falling real estate market. He complains further that, because the applicant remained in the home, they were unable to discharge the joint debts that he has been paying since the separation. He also complains that he has not been paid occupation rent while the applicant lived in the home and, because he did not know about it, was unable to insist that the applicant share the rent money she was getting from her tenant.

[16] In my view, the applicant’s failure or refusal to agree to list the home for sale and the rent money she received ought not to affect the amount of ongoing spousal support, for three reasons.

[17] First, there was nothing unreasonable in the applicant’s efforts to remain in the home, to refuse to pay occupation rent to the respondent, or to refuse to share the rent she was receiving with him. The applicant carried the costs of the home while she was living in it. Those carrying costs were in the vicinity of $2,100 per month, excluding cable and Internet services. The applicant took in a tenant to help offset the costs. Net of the rent, the costs were in the neighbourhood of $1,400, which is roughly what the respondent is paying for accommodation at the moment. On the other hand, it would have been unreasonable for the applicant to be forced to pay occupation rent, which would have driven her costs of accommodation well beyond this amount.

[18] Second, it appears to me that the debts being paid by the respondent were either incurred largely due to his spending habits or for property which he alone possesses and enjoys.

[19] In his affidavit, the respondent deposes that he had to withdraw funds from his RRSPs in 2020 and 2021 because the parties were “over (their) heads financially”. The respondent has failed to file an updated financial statement or an affidavit saying that nothing has changed since he filed his last one, as he is required to do under r. 13(12) of the Family Law Rules, O. Reg. 114/99. However, the financial statement he filed in March 2022 in answer to the application shows that, as of the date of separation, the respondent owned two “Harley” (Davidson, I presume) motorcycles, the newest being a 2016 Road Glide valued at $17,550. As of the date of separation, the respondent’s financial statement shows that the Fairstone loan was outstanding in the amount of $23,997. The applicant’s financial statement shows that the original Fairstone loan amount was $25,000. Although there is nothing in the evidence of either party identifying the purpose of the Fairstone loan, it is a fair inference that, even if it does not relate directly to the purchase of the Road Glide, it would not have been necessary to borrow all of that money had the motorcycle not been purchased. The same is probably true of the jointly-owned Grizzly ATV. However, that vehicle is in the sole possession of the respondent who, consequently, is the only one getting the benefit of it.

[20] Third, as I will now explain, the total amount of direct and indirect support being paid by the respondent prior to September 2022 was less than the total amount he should have been paying.

[21] As mentioned earlier, the applicant earned $43,465 in 2021. Based on this amount and the amount the respondent earned in 2021 of $110,401, the respondent ought to have been paying support in the range of $2,092 to $2,719 per month, according to the Spousal Support Advisory Guidelines (“the Guidelines”). Bearing in mind that the respondent was 50 percent responsible for the joint debts he paid in the monthly equivalent of $854.32, while he was paying support, the respondent was only paying the equivalent of $2,052.16 ($1,625 + $427.16) per month. This is slightly less than the minimum and far short of the maximum suggested by the Guidelines.

[22] With respect to ongoing support, the respondent submits that, although the applicant is now working, she is only working 37.5 hours per week normally. He submits that, at her present rate of pay of $25.52 per hour, the applicant could be earning another $5,000 per year if she worked 40 hours per week. In my view, that projection is a little optimistic.

[23] The applicant has been working additional hours lately. As she deposes, and as her recent pay stubs show, the applicant takes additional hours when they are available to her. However, there is no evidence that these hours will continue to be available. In the absence of such evidence, I believe it is more appropriate to use the applicant’s projections for 2022 income of $47,234.

[24] The respondent deposes that his income for 2022 is likely “to be in the range of $100,000”. Based on his income over the past three years, I believe that estimate is a little pessimistic. In 2019, the respondent earned $99,860. In 2020, he earned $100,238, including $2,000 of employment insurance income. Last year he earned $110,401. I can see no reason in the evidence to believe that the respondent’s income will go down this year when it has, instead, gone up in the last three.

[25] Based on the respondent’s income of $110,401 and the applicant’s income of $47,234, I am told that the low, mid, and high ranges of support under the Guidelines are $1,969, $2,297, and $2,568, respectively. Although he uses numbers for income that I have rejected, counsel for the respondent submits that the amount of spousal support should be set at the low end of the range pending the sale of the house because, until then, the respondent will be paying on the joint debts. Thereafter, he submits the support should be in the mid-range. I am unable to agree with the first submission.

[26] As counsel for the applicant points out, until the house sells, the applicant’s housing costs will be about $2,400, including the cable and Internet costs. But these costs include the mortgage, the payment of which benefits both parties. Further, as I pointed out earlier, the joint debts relate directly or indirectly to vehicles solely owned or enjoyed by the respondent. For these reasons, in my view, the applicant should receive support at the high end of the range until the house sells, or until a reasonable period of time has passed within which to sell it.

[27] I agree that, once the house sells, the applicant should receive support in an amount closer to the mid-range amount. As counsel for the applicant concedes, the applicant's housing costs are likely to go down once the house sells and, in my view, should be something approaching those of the respondent, which are currently $1,500 per month. At the same time, the respondent’s ability to pay support will increase because the joint debts, or at least some of them, will be paid.

CONCLUSION

[28] For the foregoing reasons, I order that, on a temporary basis:

(1) The respondent shall pay support to the applicant in the amount of $2,568 per month, commencing on the 1st day of November 2022, and continuing on the first day of each month thereafter until the matrimonial home is sold or for a period of six months, whichever occurs first.

(2) Thereafter, the respondent shall pay support to the applicant in the amount of $2,297 on the first day of each month until further order of this court.

COSTS

[29] During the hearing, I canvassed the issue of costs with counsel. I am told that offers to settle will affect that issue. If the parties are unable to agree on the issue of costs, written submissions, limited to five typewritten pages exclusive of attachments, may be made:

(1) On behalf of the applicant, within 10 days of the release of these reasons; and

(2) On behalf of the respondent, within 20 days of the release of these reasons.

M.G. Ellies R.S.J.

Released: November 2, 2022

CITATION: Benard v. Benard, 2022 ONSC 6220

COURT FILE NO.: FS-22-43

DATE: 2022/02/11

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Diane Benard Applicant

– and –

Marc Benard Respondent

REASONS FOR DECISION

Ellies, RSJ

Released: November 2, 2022