COURT FILE NO.: FS-19-30 (Owen Sound)
DATE: 2022 01 05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Codey Baker Duff Osborne
R.H. Thomson, for the Applicant
Applicant
- and -
Jennifer Robin Shevalier
L.C. MacIntosh, for the Respondent
Respondent
HEARD: November 8, 9, 10, 12, 15 and 16, 2021
REASONS FOR JUDGMENT
Sproat J.
INTRODUCTION
[1] The parties:
a) began living together in January, 2010
b) married in September, 2011
c) separated in December, 2018.
[2] This was, therefore, about a 9-year relationship and a 7-year marriage. Mr. Osborne is now 35 years old and Ms. Shevalier is 39 years old.
[3] In the course of these reasons I may make certain findings of fact. These findings are, however, based on the totality of the evidence and taking account of any findings that follow in these reasons.
[4] I advised counsel that I would make the findings I believe are required in order for them to calculate net family property and determine the equalization payment required. If any additional findings are required or there is any dispute as to the calculation, I will remain seized to deal with it.
[5] On December 3, 2021 Mr. Thomson emailed to advise that Mr. Osborne had a health issue that might affect my decision, presumably by affecting his ability to earn income. Mr. Thomson did acknowledge that at this time not a lot is known in terms of prognosis. Mr. Thomson suggested that if a further Motion to Change was necessary due to this health issue it would assist if it was brought before me to avoid delay and unnecessary expense.
[6] In this unusual situation I think it most appropriate to provide my decision based on the evidence at trial. It could be months before the impact on Mr. Osborne’s income can be determined. If a further Motion to Change is required I am open to hearing that, and expediting the process, but will invite submissions from both counsel as and when a Motion to Change is brought.
EQUALIZATION OF NET FAMILY PROPERTY
Are There Grounds for an Unequal Division?
[7] Ms. Shevalier seeks an unequal division of net family property primarily because she says tha,t without her knowledge and contrary to his assurances they were financially secure, Mr. Osborne withdrew approximately $99,000 from his RRSP over the course of the marriage.
[8] Mr. Osborne acknowledges the withdrawals but says that Ms. Shevalier was aware of the withdrawals. They discussed making withdrawals to pay for home improvements. They used the same accountant. Their tax returns were kept in the same filing cabinet at home. They were available for her to see.
[9] Mr. Osborne further testified that the money was used to pay family bills including the mortgage, renovations and Ms. Shevalier’s car payments and insurance. Mr. Osborne testified that in addition to paying the mortgage he etransferred approximately $97,000 to Ms. Shevalier over the course of the marriage to pay bills.
[10] Mr. Osborne gave evidence that at homes that one or both of the parties owned he personally paid for, and performed or assisted in, significant renovations involving gutting rooms, replacing drywall, and replacing bathroom fixtures. This would obviously contribute significantly to the value of the properties.
[11] Mr. Osborne acknowledged he was not the best person at managing personal finances.
[12] In December, 2016 Ms. Shevalier financed the purchase of a new Nissan Rogue which cost $39,867. This was clearly an unnecessary expenditure given the fact that Ms. Shevalier worked intermittently and had a modest income. In the spring of 2018, Mr. Osborne financed the purchase of a new GMC Sierra truck costing $67,000. In other words, more than $100,000 in new vehicles at a time when they were both aware there was line of credit and credit card debt.
[13] In cross-examination Mr. Osborne was asked about occasional use of illicit drugs when he was in his mid-20s. He testified this occurred on about five occasions. Ms. Shevalier testified to direct knowledge of illicit drug use by Mr. Osborne on a few occasions although she noted he was often working away from home, often three or four nights a week, so there could be additional drug use.
[14] No attempt was made to quantify how this was relevant to Mr. Osborne’s financial situation. I can only conclude that this was brought up to embarrass Mr. Osborne and cast him in an unfavourable light. This is the type of tactic that may temporarily gratify a litigant but escalates the emotional and financial costs of family law litigation.
[15] Ms. Shevalier testified that when they got together, she asked him why he had a line of credit given that he had a high paying job. He responded that he had incurred debt because he was “young and stupid”. During the marriage she noticed that he had a significant amount of tax owing when he filed his returns. In or about 2014 – 2016 she questioned their accountant and learned the tax owing related to RRSP withdrawals. She testified Mr. Osborne told her he would not make further withdrawals, but he did so. It was only after separation that she pulled out all the tax returns and found out the withdrawals were a regular occurrence.
[16] In Fielding v. Fielding, 2015 ONCA 901 the court identified the stringent test that must be met to justify unequal division, as follows:
[37] The wife also claims she is entitled to an unequal division of NFP. Section 5(6) of the Family Law Act sets out the circumstances under which a variation in the presumptive equal sharing of NFP can occur:
5(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the [page72 ]opinion that equalizing the net family properties would be unconscionable, having regard to,
(a) a spouse's failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;
(b) the fact that debts or other liabilities claimed in reduction of a spouse's net family property were incurred recklessly or in bad faith;
(c) the part of a spouse's net family property that consists of gifts made by the other spouse;
(d) a spouse's intentional or reckless depletion of his or her net family property;
(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;
(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;
(g) a written agreement between the spouses that is not a domestic contract; or
(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.
[38] The threshold of "unconscionability" under s. 5(6) is "exceptionally high". The jurisprudence is clear that circumstances which are "unfair", "harsh" or "unjust" alone do not meet the test. To cross the threshold, an equal division of NFP must "shock the conscience of the court": see Serra v. Serra (2009), 93 O.R. (3d) 161, [2009] O.J. No. 432, 2009 ONCA 105, at para. 47.
[17] The parties were always living beyond their means. While not prudent, this is very common. I find that at its highest, Mr. Osborne probably told Ms. Shevalier not to worry about finances, that he made a lot of money and things would be fine. The finances were, however, largely an open book if Ms. Shevalier had wanted to look. The tax returns were in a cabinet at home. Ms. Shevalier at least partially contributed to them living beyond their means by purchasing a new vehicle in priority to paying down debts.
[18] There is no evidence to suggest that Mr. Osborne had a covert lavish lifestyle. That being the case, the RRSP withdrawals benefitted Ms. Shevalier by funding living expenses, reducing family debts or enhancing the value of family assets.
[19] As such, there are no grounds for ordering an unequal division of net family property.
The Value of Certain Chattels
[20] Mr. Osborne and Ms. Shevalier both had houses before moving in together and so had some furniture and household goods. Mr. Osborne’s financial statement listed his household goods on the date of marriage as having a value of $4,000. Ms. Shevalier also had some furniture and household goods on the date of marriage but she left the value blank in her October 7, 2021 financial statement.
[21] Following separation Ms. Shevalier had Snider’s Sydenham Auction & Appraisal Services Inc. (“Snider”) appraise 233 chattels. Snider appraised the items at a total value of $38,922. Ms. Shevalier allocated the items as follows:
a) in possession of Ms. Shevalier $2,355
b) in possession of Mr. Osborne $34,047
c) gift or pre-marital possession of Ms. Shevalier $960
d) gift or pre-marital possession of Mr. Osborne $1,560
Total $38,922
[22] Mr. Osborne prepared a list in which he disputed the allocation of certain items in the Snider list submitting that they should not be included in his property on the following grounds:
a) a gift to him $1,410
b) owned prior to marriage $1,865
c) not in his possession $1,410
d) garbage $1,577
e) items he built $3,350
f) items he does not own $2,035
$11,647
[23] Mr. Osborne also challenged the valuation of certain chattels.
[24] Snider valued rough sawn lumber, logs and related items at $12,550. This was on the basis of examining photos. Mr. Osborne’s expert, Mr. Ruth, personally inspected and valued a small selection of the wood at $2,610. Snider’s list of chattels also included the wood Mr. Ruth valued as a separate item.
[25] Mr. Osborne testified that Snider appraised based on a photo of wood. Mr. Osborne removed some of the wood after the photo was taken and that is what Mr. Ruth valued. As such, what Mr. Ruth valued has been counted twice.
[26] Mr. Osborne and a friend purchased a tree to mill the lumber and divide it equally. Mr. Osborne testified that the only wood he ended up with was a small selection of the wood itemized by Snider. He testified that the additional wood was not correctly described or was left outside for several years and had no actual value.
[27] Ms. Shevalier also claims the following amounts need to be taken into account:
a) unpaid spousal support $1,400
b) damage to door and garage door at matrimonial home $1,580
c) paid to Saugeen Conservation $565
[28] Ms. Shevalier’s Financial Statement indicates that $4,743.71 was owing on property tax at separation and that she paid this amount and a further $1,852 in 2020.
[29] Mr. Osborne and Ms. Shevalier both impressed me as honest witnesses. The recollection of honest witnesses is, however, often clouded by self-interest and emotion. As such it is not surprising that on some items their recollection differs.
[30] The parties, understandably, were not able to provide much detail as to the household goods each brought into the marriage. They both had their own houses prior to marriage and so had basic furniture and kitchenware. I cannot differentiate between them in terms of the value of these goods. As such, I find that both had $4,000 in household goods at the time of marriage.
[31] Snider valued a total of $38,922 in chattels. Ms. Shevalier claims $960, and Mr. Osborne claims $3,275, in gifts or pre-marital possessions. Mr. Osborne’s figure is higher and includes a table saw Snider valued at $300 and a riding lawnmower valued at $550. I will accept these exclusions which reduces the household goods to consider by $4,235. In addition, Ms. Shevalier acknowledges having $2,355 of chattels in her possession.
[32] As such, the remaining chattels to consider total $32,332 ($38,922 - $4,235 - $2,355 = $32,332).
[33] While admittedly a somewhat rough and ready estimate given the state of the evidence, I would make the following deductions from the amount attributed to Mr. Osborne:
a) I accept Mr. Osborne’s evidence that he took wood away after Ms. Shevalier took the photos of the wood that she provided to Mr. Snider. I accept Mr. Ruth’s $2,610 valuation of the wood he personally inspected.
b) Snider valued the total wood at $12,550. From that I deduct $2,610 being the wood valued by Mr. Ruth, leaving $9,940 to consider. Mr. Osborne claims that additional wood had rotted and had no value. The wood was used by Mr. Osborne to pursue his hobby of making furniture and carpentry so it does not make sense to me he would simply let it rot, or if he did, he should bear some responsibility for that. On the other hand, Mr. Snider based his valuation largely on a list of boards, dimensions and species that he was provided by Ms. Shevalier, the accuracy of which is in some doubt. I also accept Mr. Osborne’s evidence that his friend owned one-half of the lumber that had been milled. Taking these factors into account I deduct a further $7455 (75% of $9,940).
c) Mr. Osborne testified that on the Snider list there were $1,410 of items not in his possession; $1,577 of items that were disposed of as garbage and $2,035 of items he did not own. There are no reliable records of any of this. Of the total of $5,022, I, therefore, deduct only 50% being $2,511.
d) Snider valued a 1980–1981 snowmobile at $1,200. Mr. Osborne suggested the value is $500 as he purchased it for $100 and spent $400 to fix it. I agree that is the most reliable evidence and so deduct $700.
e) Snider valued Mr. Osborne’s 50% interest in a 1992 fishing boat outboard motor and kicker motor at $4,000. Mr. Osborne testified he paid $2,250 for his 50% interest in these items. I accept that is the best evidence of value and so deduct $1,750.
f) Snider valued a small trailer at $1,000. I accept Mr. Osborne’s evidence that it was not roadworthy and was in such bad shape it was given away. As such, I deduct $1,000.
[34] These deductions total $16,026. My conclusion, therefore, is that Mr. Osborne had $16,306 ($32,332 - $16,026 = $16,306) in chattels at the date of separation.
[35] Mr. Osborne disclosed ownership of three firearms and there is no dispute as to their value. Mr. Osborne testified these three firearms were registered with the government and that he did not own any additional firearms. Ms. Shevalier, however, testified that during marriage she counted seven firearms in their garage and remembers that number as she made multiple trips to secure them in a locked area in the basement. While Ms. Shevalier may have moved seven firearms, I accept Mr. Osborne’s evidence he owned only the three firearms he disclosed. Given the requirement to register firearms I don’t believe he would be mistaken on this issue.
FINDINGS WITH RESPECT TO NET FAMILY PROPERTY
[36] My findings will refer to the Exhibit 22 Comparison of Net Family Property Statements dated November 10, 2021.
a) 1(a) Land – no change
b) 1(b) General Household Items and Vehicles - Vehicles are as per Applicant’s Position. Household items – Mr. Osborne had items valued at $16,306, and Ms. Shevalier had items valued at $2,355, on the valuation date.
c) 1(c) Bank Accounts – Mr. Osborne’s numbers are correct. Ms. Shevalier’s RRSP on the valuation date was $15,600. There is no justification for listing the RRSP withdrawals made by Mr. Osborne as an asset of his on the valuation date.
d) 1(f) Money Owed to You – there is no evidence of $1,400 in spousal support arrears. I find Mr. Osborne owes $950 for the damage he admitted causing to the door at the matrimonial home. This is approximately 50% of the amount claimed by Ms. Shevalier as there is no documentation to support this claim. The Saugeen Conservation amount is listed later and should be deleted here to avoid double counting.
There is no justification for the $1,696.87, $2,419.56 and $15,500 Ms. Shevalier lists as amounts owed to her. The parties were living beyond their means, however, Mr. Osborne was by far the higher earner. Their finances were commingled in the sense that Mr. Osborne transferred large amounts to Ms. Shevalier so that she could pay bills.
There was no proof of the $278 dental amount.
e) 2(a) Mr. Osborne has correctly listed the truck and car loans outstanding on the valuation date. He has also correctly listed his credit card and line of credit debt.
Ms. Shevalier claims she had what I characterize as financial institution debt of $16,149.04 and $11,575 on the date of separation. The $16,194.04 amount was, however, not proven at trial and should be deleted.
During the trial an issue was raised as to the $11,575 amount and Ms. MacIntosh emailed a copy of Ms. Shevalier’s Scotialine statement of January 2, 2019 which shows a balance on December 3, 2018 and a balance of $11,482 on December 3, 2018 and a balance of $11,482 on January 2, 2019. Mr. Thomson reasonably conceded that Ms. Shevalier should be taken to have a debt of $11,482 on the valuation date.
There was also no evidence that Ms. Shevalier spent $4,984.09 on insurance and expenses to maximize the sale price.
Ms. Shevalier also claimed $4,743.71 for property taxes owed on December 2018, being the date of separation. This amount was not proven at trial. In addition, Mr. Osborne’s bank records indicate that he paid property tax of $3,436.79 on December 31, 2018, being shortly after the valuation date. So even if Ms. Shevalier owed property taxes as she claims, it appears Mr. Osborne paid almost all of them. This claimed liability should be deleted.
f) 3 Net Value of Property and Debits on Date of Marriage – As previously discussed, and given the lack of documentation, I find that each party had general household items and vehicles valued at $4,000 on the date of marriage. Ms. Shevalier also claimed to have $6,331.64 in savings on the date of marriage but I was not directed to any proof of that.
g) 4 Property Excluded – Delete the $1,410 amount claimed by Mr. Osborne as I have already dealt with gifts and garbage items above.
SPOUSAL SUPPORT
Ms. Shevalier’s Health and Ability to Work
[37] Ms. Shevalier testified that she fell on stairs in January, 2012 which resulted in a herniated disc and a disc bulge, and this has affected her ability to move and sit. At times she could not use her left leg and had to crawl to get a glass of water. She has a high pain threshold. The pain in her back and neck never goes away.
[38] Ms. Shevalier testified that she also has severe fibromyalgia and undifferentiated connective tissue disease. Her fibromyalgia involves headaches, extreme fatigue, difficulty in concentrating, nausea, sever joint and muscle pain. Her fibromyalgia symptoms fluctuate in severity. Stress accentuates her distress. She spends several hours a day in exercise and therapy to try to alleviate the symptoms she described. Undifferentiated connective tissue disease has many of the same symptoms and, in addition, causes insomnia, rashes, light sensitivity and increased risk of heart attack. Her immune system is overly active and attacks healthy tissue. Her conditions are exacerbated by cold weather. She frequently has flu-like symptoms.
[39] Ms. Shevalier also has post-surgery issues following Achilles tendon and ovary removal surgery.
[40] Ms. Shevalier has tried or considered various types of pain management. She rejected some on the basis of medical advice as the risk exceed the benefit. She has regular massage therapy and also periodic physiotherapy. She has been treated by a chiropractor but has found that painful.
[41] After trying various medications, she decided in 2018 to use natural supplements. She consults a naturopathic doctor and other health care professionals.
[42] As a result of her conditions Ms. Shevalier has episodes of depression and anxiety. In 2019 she had 10 sessions with a therapist to address anxiety and depression.
[43] Prior to marriage her only health concerns had been an Achille’s tendon tear and depression and anxiety. The other conditions developed during the marriage.
[44] Ms. Shevalier has a high school education. In addition, she is qualified to teach various levels and types of gymnastics. She achieved most of these qualifications prior to meeting Mr. Osborne.
[45] Currently she is employed approximately 5.5 hours a week at Dancemakers earning $20 per hour teaching gymnastics to young children. She is also employed approximately 10 hours a week at Roy Mar Demolitions earning $18 per hour, photographing and marketing salvage items online. This totals approximately $290 per week.
[46] Ms. Shevalier worked at Dancemakers from October, 2012 to February, 2018. She was then on medical leave and returned on a reduced schedule in July, 2018. There is little prospect of additional hours at Dancemakers as her physical condition does not permit her to work with higher level gymnasts. She can work some extra hours at Roy Mar if, in a particular week, she feels capable of it.
[47] She now receives CPP disability benefits of approximately $960 per month which is a taxable amount. She received retroactive payments to July, 2018 which totalled $32,987. CPP monitors her entitlement.
[48] Ms. Shevalier has not pursued retraining as it would be difficult with her medical conditions. She has very limited physical abilities and so has limited options that she could pursue. In early 2021 she looked into retaining a relocation counsellor, however, she could not afford the fee.
[49] In cross-examination Mr. Thomson directed Ms. Shevalier to a photograph taken in the summer of 2021 that shows her seated in a kayak. She explained that she went out with friends as she had not been out for a long time. She did not paddle, and she was sore afterwards.
[50] In cross-examination she was also directed to a January 21, 2019 note by the gastroenterologist treating her for irritable bowel syndrome. The note refers to the fact that Ms. Shevalier was taking dietary supplements and was not willing to try pharmaceutical therapies. Ms. Shevalier agreed that was correct but indicated that was due to her experience taking pharmaceuticals which had not helped her.
[51] Mr. Hooper, the co-owner of Dancemakers testified that Ms. Shevalier had been a champion gymnast but over time had become progressively weak and frail. This got to the point that there was a safety concern that she was incapable of spotting students doing any gymnastic activity involving rotation and acceleration. Ms. Shevalier was also missing about 35% of her scheduled hours. As a result, he met with her and they discussed reducing her hours. The only role for her was to coach children ages 6 to 9, where she essentially provides guidance but does not have to physically exert herself.
[52] Mr. Hooper testified he had a discussion with Mr. Osborne about five years ago. They discussed Ms. Shevalier’s health and inability to work. Mr. Hooper described her as grumpy due to pain which he said was understandable. Mr. Hooper said that from time to time there was some conflict with Ms. Shevalier. He said, however, that when there was a conflict Ms. Shevalier could usually support her position and sometimes she had the better idea as to how something should be done. There was no suggestion that Ms. Shevalier ever acted in an insubordinate or blameworthy manner.
[53] Dr. Chaytor, Ms. Shevalier’s family doctor testified as to her medical history. While she began seeing Ms. Shevalier in January, 2020 she had reviewed her medical chart back to about 2007.
[54] Ms. Shevalier has been diagnosed with fibromyalgia and undifferentiated connective tissue disorder. They have many overlapping symptoms including muscle and joint pain, brain fog, anxiety and depression.
[55] The medical chart documented that Ms. Shevalier was treated for a fall in early 2012. From 2012 to 2017 she had a series of x-rays taken and was referred to a neurosurgeon. Ms. Shevalier was treated for “mechanical” back pain being caused by a combination of arthritic, degenerated and mildy slipped discs.
[56] Ms. Shevalier has also had ongoing issues with ovarian cysts. She has had at least 10 ultrasounds which are used to identify cysts which cause pelvic pain. As a result, her left ovary was removed.
[57] Ms. Shevalier also has inflammatory arthritis affecting both of her wrists. She also suffers from irritable bowel syndrome.
[58] Dr. Chaytor has seen Ms. Shevalier on seven occasions, most of them since September, 2020, to address issues of anxiety and depression.
[59] In cross-examination Dr. Chaytor said there was nothing in the chart to link Ms. Shevalier’s health issues to her participation in gymnastics. She also confirmed that Ms. Shevalier is not now taking any medication.
[60] Ms. Shevalier has a strong motivation to regain her health, or at least mitigate her pain and suffering, in order to support herself. She is only 39 years old and certainly understands that after a nine year relationship spousal support is not going to support her until age 50, much less, age 65. Despite that motivation and despite what I find are reasonable efforts on her part, she remains significantly disabled.
[61] I accept her evidence, corroborated to a very significant extent by the evidence of Mr. Hooper and Dr. Chaytor and her medical records, that she suffers from the various ailments previously discussed and that she is disabled to the extent she described in her evidence. I further accept that the most she can work at present is approximately 16 hours a week.
[62] Further, while one can hope for the best, there is currently no prognosis for any material improvement in her condition.
Income of the Parties for Support Purposes
[63] Mr. Osborne’s average income net of union dues for 2015 to 2020 was $135,197.16. In 2018 his income was $163,917. He explained that by 2018 the relationship had deteriorated, and he did not want to spend time at home. He, therefore, agreed to travel to Newfoundland and New Brunswick to work which resulted in a spike in income. In 2020 his income was $107,503 and he attributed this to a 3-month layoff he agreed to accept during COVID-19 due to concerns about working in the GTA after his new partner gave birth to their daughter on March 3, 2020. The two anomalous years, therefore, also average approximately $135,000. I, therefore, find that it would be fair to regard Mr Osborne's annual income, as of the date of separation, as $135,000.
[64] For 2015 – 2017 Ms. Shevalier’s income was declining slightly and averaged about $19,000. 2018 was an anomaly in that her income declined to $3,786 as she was laid off due to the fact her health was resulting in unacceptable absences.
[65] For 2019, Ms. Shevalier’s employment income was $9,784.91 and her CPP income was $11,249.88 which totals $21,034.79.
[66] For 2020, Ms. Shevalier’s employment income was $11,506.38 and her CPP income was $1,463.60 which totals $22,969.98. I find that for support purposed her annual income is $23,000 as this is what she now earns and can expect to earn over the remaining years in which she is entitled to spousal support.
Claim for Retroactive Spousal Support
[67] After the parties separated in December, 2018 Ms. Shevalier remained in the matrimonial home. I conclude that she received what amounted to appropriate spousal support for 2019 in that:
a) Mr. Osborne made the mortgage payments and paid some property tax;
b) Mr. Osborne made support payments in January and March 2019 totalling $2,738;
c) Ms. Shevalier rented an apartment in the home and received $12,800 in rent, although I appreciate that she had certain expenses associated with the rental.
[68] By court order effective January 1, 2020 Mr. Osborne began to pay spousal support of $1,875 per month. As such, I find that Ms. Shevalier to date has been paid appropriate spousal support and has no entitlement to additional retroactive spousal support.
Amount and Duration of Spousal Support
[69] In Thompson v. Thompson, 2013 ONSC 5500, Justice Chappel provided a helpful review of the governing principles, as follows:
ii. Compensatory Support
[55] The compensatory basis for spousal support entitlement recognizes that upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage. The objective of a compensatory award is to provide some degree of compensation for the sacrifices and contributions which a spouse made during the marriage, for economic losses which they experienced and may continue to experience as a result of the marriage, as well as the benefits which the other spouse has received as a result of these sacrifices and contributions.33 A compensatory award recognizes that such sacrifices, contributions and benefits conferred often lead to interdependency between the spouses and merger of their economic lives.34
[56] Compensatory support claims arise most typically in situations where one spouse has suffered economic disadvantage and contributed to the other spouse’s income earning potential as a result of assuming primary responsibility for child care and/or home management obligations. However, a compensatory claim can also be founded on other forms of contribution to the other party’s career, such as supporting the family while the other party obtained or upgraded their education,35 selling assets or a business for the benefit of the family unit,36 or assisting a party in establishing and operating a business that is the source of that party’s income.37
iii. Non-Compensatory Support
[59] Spousal support entitlement can also arise on a non-compensatory basis, as a result of the needs of a spouse. The Supreme Court of Canada discussed this basis of entitlement in Bracklow v. Bracklow. It emphasized in that case that a spouse may be obliged to pay support based on the other spouse’s economic need alone, even if that need does not arise as a result of the roles adopted or sacrifices made during the marriage. Rowles, J.A. of the British Columbia Court of Appeal summarized the general concepts underlying this basis of entitlement in Chutter v. Chutter40 as follows:
Non-compensatory support is grounded in the “social obligation model” of marriage, in which marriage is seen as an interdependent union. It embraces the idea that upon dissolution of a marriage, the primary burden of meeting the needs of the disadvantaged spouse falls on his or her former partner, rather than the state (Bracklow, at para. 23). Non-compensatory support aims to narrow the gap between the needs and means of the spouses upon marital breakdown, and as such, it is often referred to as the “means and needs” approach to spousal support.
- General Principles Regarding Quantum and Duration of Spousal Support
[60] The issues of quantum and duration of spousal support must be determined taking into consideration the purposes and factors set out in section 15.2 of the Act. The advent of the SSAG has provided considerable assistance in addressing questions relating to quantum and duration of spousal support. As the authors of the SSAG emphasize, the guidelines do not address the issue of entitlement to spousal support, and therefore they should only be considered after the preliminary issue of entitlement has been established. In Fisher v. Fisher, the Ontario Court of Appeal held that although the SSAG are not legislated or binding, they are a useful tool, provided that “the reasonableness of an award produced by the Guidelines must be balanced in light of the circumstances of the individual case, including the particular financial history of the parties during the marriage and their likely future circumstances.”41 While the SSAG are not binding, they provide a valuable litmus test for assessing the range within which spousal support should be ordered based on traditional principles, and the duration of spousal support.
[70] In Peters v. Peters, 2015 ONSC 4006 Justice Gorman summarized the principles in Bracklow v. Bracklow, [1999] 1 S.C.R. 420:
[26] The fundamental principles set out in Bracklow are as follows:
a. The presumption in marriage is that spouses owe each other a mutual duty of support. The court emphasized, however, that this premise of mutual support is rebuttable; parties to a marriage may alter this presumption, either through explicit contracting or "through unequivocal structuring of their daily affairs, to show disavowal of financial interweaving."21
b. When a marriage breaks down, the presumption of mutual support no longer applies. However, there is no "judicially created statute of limitations on marriage." McLachlin, J. emphasized that "marriage...is a serious commitment, not to be undertaken lightly. It involves the potential for lifelong obligation. There are no magical cut-off dates."22
c. Section 15.2(6)(c) of the Divorce Act broadens the right to spousal support beyond situations where a party has suffered losses or disadvantages that are causally connected to the marriage, and recognizes that entitlement may exist where the breakdown of the marriage in itself has caused economic hardship. In discussing this issue, the court clarified that this provision encompasses situations where "a person who formerly enjoyed intra-spousal entitlement to support now finds herself or himself without it."
d. Marriage does not in and of itself automatically entitle a spouse to support.
"To hold otherwise would swing the pendulum too far back and completely ignore the independent, clean-break model of marriage."24 The court stressed that it is not the bare fact of marriage so much as "the relationship that is established and the expectations that may reasonably flow from it [emphasis added] that give rise to the obligation of support under the statutes."25
e. Contract and compensation are not the only sources of a spousal support obligation. "The obligation may alternatively arise out of the marriage relationship itself."26 However, the court added that where a spouse achieves economic self-sufficiency on the basis of his or her own efforts, or by means of a compensatory support order, "the obligation founded on the marriage relationship itself lies dormant."
f. Where need is established that is not based on compensatory or contractual grounds, "the fundamental marital obligation may play a vital role. Absent negating factors, it is available, in appropriate circumstances, to provide just support."27
g. The court did not specifically elaborate on the "negating factors" that would preclude a finding of spousal support entitlement in non-compensatory cases, or conversely on "the appropriate circumstances" that would give rise to a finding of entitlement. However, in discussing the issue of non-compensatory support in the context of the facts in Bracklow, the court emphasized the importance of analyzing the nature of the parties' relationship during the marriage, and in particular to determine whether there was any evidence as of the separation date to rebut the presumption of mutuality and interdependence in the parties' relationship. The court emphasized the importance of starting this analysis using the correct judicial lens, with the presumption of interdependence between the parties. McLachlin, J. noted that although the Bracklows were relatively financially independent at the outset of their marriage, by the end of the marriage they had established an interdependent relationship. It was on this basis that the court determined that Mrs. Bracklow was in state of economic hardship resulting from the breakdown of the marriage as contemplated by section 15.2(6)(c) of the Divorce Act.
h. It follows from this reasoning that if there was evidence that the parties' relationship was not characterized by interdependence and mutual reliance during the period leading to the marriage breakdown, this would be a relevant factor that could lead the court to conclude that the spouse claiming support did not suffer economic hardship as a result of the marriage breakdown.
i. In determining the issue of entitlement, the court emphasized the point established in Moge that all of the objectives set out in section 15.2(6) must be considered, with no one objective being paramount. Therefore, the objective of promoting self-sufficiency with a reasonable period of time is always a consideration.
j. In cases involving spouses who become disabled toward the end of the marriage, where no compensatory or contractual claim for support exists, it may be unfair to the other spouse to order support on an indefinite basis. The court left open the possibility that spousal support could be time limited, even if the disabled spouse will not be able to achieve self-sufficiency. It should be noted that on the re-hearing of Bracklow,28 the court ordered five years time limited support despite the fact that the wife would never be able to support herself adequately on her own.
[71] Ms. Shevalier does not have any right to support on a compensatory basis. Mr. Osborne was a qualified electrician when they met. Ms. Shevalier was a qualified gymnastic coach who at most worked approximately 22 hours a week. They had no children. Ms. Shevalier does not have any entitlement on the basis that she made sacrifices and contributions that conferred a benefit on Mr. Osborne.
[72] Ms. Shevalier does have a strong claim for non-compensatory support based on need. As stated, I accept her evidence as to the nature and extent of her disability. She is only able to work approximately 16 hours a week in a job that is not physically demanding.
[73] Based upon Mr. Osborne having an income of $135,000 and Ms. Shevalier having an income of $23,000 a Divorcemate calculation indicated low-end spousal support of $1,260, mid-range spousal support of $1,470 and high-end spousal support of $1,680.
[74] Mr. Thomson submitted that spousal support should be at the low-end because Ms. Shevalier has done little or nothing to retrain or otherwise increase her income. I do not agree. Given that I accept her evidence as to the nature and extent of her disability, she has not been capable of completing a college or other type of retraining program, nor has she been capable of working more hours.
[75] Given the large disparity in incomes, and the evidence which I have accepted as to the nature and extent of Ms. Shevalier’s disability, I find that Mr. Osborne should pay spousal support in the amount of $1,680, commencing January 1, 2022.
[76] With respect to the duration of spousal support, Mr. Thomson submits that it should not extend past December, 2023 being five years from the date of separation. Ms. MacIntosh submitted that spousal support, given Ms. Shevalier’s disability, should be paid for the length of the relationship being approximately 9 years. The Spousal Support Advisory Guidelines (“SSAG”) provide that the maximum duration of spousal support, based on the parties’ length of marriage and cohabitation, is 9 years.
[77] Duration needs to be considered in light of my finding on quantum. Having awarded quantum at the high end, I would not also award duration at the high end.
[78] While I am sympathetic to Ms. Shevalier’s disability, her claim is totally on a non-compensatory basis. Ms. Shevalier chose to pursue a job she loved but it was a physically demanding job that paid $20 an hour and only provided about 25 – 30 hours a week of work. That amounts to an annual income of $25,000 to $31,200. As such, certain of the hardship Ms. Shevalier has and will experience flows from the career choice that she made.
[79] I, therefore, find that it would be reasonable for Mr. Osborne to pay spousal support for a period of 7 years from the date of separation, being to December 31, 2025.
DIVORCE
[80] The parties agreed that an order for divorce should be made and the evidence satisfies me that is appropriate. Mr. Thomson should forward a divorce order for my signature.
NO CONTACT ORDER
[81] I decline to make the order requested by Mr. Osborne. Ms. Shevalier indicated that she has no interest in contacting Mr. Osborne, his new partner or his current employer. The prior contact he complains of was a brief contact and a long time ago. As such, an order is not justified. Ms. Shevalier may need to contact his former employer as there may still be some dental or other benefit that she is entitled to access.
CONCLUSION
[82] Mr. Thomson shall prepare a draft order reflecting these reasons and provide it to Ms. MacIntosh for her approval as to form and content. I will remain seized to address any issues that may arise in relation to finalizing the order.
[83] Mr. Thomson shall provide me with costs submissions within 20 days. Ms. MacIntosh shall provide me with her submissions within a further 15 days. Reply, if any, within a further 5 days.
Sproat J.
Released: January 5, 2022